Case 1:09 Cv 10076 RMB

Mark C. H. Mandell [MM-5708]42 Herman Thau RoadAnnandale, NJ 08801908-638-4434

Attorney for Plaintiffs

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

XD’ARRIGO FOOD SERVICE, INC. and :FOODLAND DISTRIBUTORS, INC., :

:Plaintiffs, : Case No. 09-CV-10076(PMB)

: v. : COMPLAINT

:THE GLAZIER GROUP, INC. d/b/a Monkey :Bar, Michael Jordan’s Steak House, Strip :House New York, Strip House Hotel :Westminster, Bridgewaters, and 24 5 Ave., :th

MATHEW PORT LLC, PENNY PORT LLC, :DELTA DALLAS ALPHA CORP., FIFTH :AVENUE BALLROOM LLC, and MONKEY : BAR LP, :

:Defendants. :

X

Plaintiffs, by their undersigned attorney, complain and allege as follows:

JURISDICTION AND VENUE

1. This court has jurisdiction of this case pursuant to Sections 5(a), 5(b) and

5(e)(c)(5) of the Perishable Agricultural Commodities Act of 1930 as amended [7 U.S.C.

§499e(a), (b), (c)(5)] (“PACA”), pursuant to 28 U.S.C. § 1331, and over derivative state

and common law claims pursuant to F.R.C.P. Rule 18, and the doctrine of ancillary and

pendent jurisdiction. Venue in this District is proper pursuant to 28 U.S.C. § 1391(b).

Case 1:09-cv-10076-RMB Document 1 Filed 12/09/2009 of 14

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PARTIES

2. Plaintiff D’Arrigo Food Service, Inc. [“D’Arrigo”] is now, and at all

material times was, a New York corporation with its principal place of business in Bronx,

NY, and was and is a dealer and commission merchant holding license No. 20080245

issued and renewed by the United States Department of Agriculture under the PACA.

3. Plaintiff Foodland Distributors, Inc. is now, and at all material times was, a

New Jersey corporation with its principal place of business in Kenilworth, NJ, and was

and is a dealer and commission merchant holding license No. 19881322 issued and

renewed by the United States Department of Agriculture under the PACA.

4. At all relevant times Defendant The Glazier Group, Inc. [“Glazier”] was

and still is a New York corporation with its primary offices located at 535 5 Avenue,th

16 Floor, New York, NY, operating a chain of restaurants under the location names ofth

“Monkey Bar”, “Michael Jordan’s Steak House”, “Strip House New York”, “Strip House

Hotel Westminster”, “Bridgewaters”, and “24 5 Ave.”, in the New York / New Jerseyth

Metropolitan area, as well as other names and locations not relevant to the matters herein,

and was operating as a “dealer” as that term is defined under the PACA.

4. Plaintiffs are informed and so believe and allege that Defendant Mathew

Port LLC [“MPL”] is a New Jersey limited liability company with its offices located in

the same suit of offices as Glazier at the 535 5 Ave. address, however MPL is notth

authorized to do business in the State of New York..


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5. Plaintiffs are informed and so believe and allege that Defendants Penny

Port LLC [“PPL”] and Fifth Avenue Ballroom LLC are New York limited liability

companies with their offices located in the same suit of offices as Defendant Glazier at

the 535 5 Ave. address.th

6. Plaintiffs are informed and so believe and allege that Defendant Delta

Dallas Alpha Corp. [“DDAC”] is a New York corporation with its offices located in the

same suit of offices as Glazier at the 535 5 Ave. address.th

7. Plaintiffs are informed and so believe and allege that Defendant Monkey

Bar, L.P. [“Monkey”] is a New York limited partnership with its offices located in the

same suit of offices as Glazier at the 535 5 Ave. address.th

8. Plaintiffs are informed and so believe and allege that Defendants MPL,

PPL, DDAC and Monkey are, among others, entities used and controlled by Defendant

Glazier as and for middle management and disbursing entities for various of its restaurant

locations, and maintain bank accounts holding the proceeds of Defendant Glazier’s

restaurant operations, but at all times shared one or more principals, owners, and/or

officers with Defendant Glazier.

FIRST CAUSE OF ACTION(Breach of Contract - Unfair Conduct)

9. Plaintiffs repeat, reallege and incorporate by reference paragraphs 1.

through 8. of this Complaint, as though fully set forth herein.


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10. On and between May 19, 2008 and March 5, 2009 Plaintiff D’Arrigo, upon

the written orders of Defendant Glazier, sold to said Defendant’s restaurants, “Monkey

Bar”, “Michael Jordan’s Steak House”, “Strip House New York”, “Strip House Hotel

Westminster”, “Bridgewaters”, and “24 5 Ave” more than $179,393.00 in fresh fruitsth

and vegetables moving in interstate commerce. Date ranges and amounts of such sales

are itemized in Schedule A attached to this Complaint, and are incorporated herein by this

reference.

11. On and between November 2, 2008 and January 12, 2009 Plaintiff

Foodland, upon the written orders of Defendant Glazier, sold to said Defendant’s

restaurants, “Michael Jordan’s Steak House”, “Strip House New York”, “Strip House

Hotel Westminster”, and “Bridgewaters” more than $29,819.00 in fresh fruits and

vegetables moving in interstate commerce. Date ranges and amounts of such sales are

itemized in Schedule B attached to this Complaint, and are incorporated herein by this

reference.

12. All of Plaintiffs’ sales were the result of price quotations by Plaintiffs to

and purchase orders from Defendant Glazier’s central management offices and

communicated by electronic means.

13. Plaintiffs delivered each contract lot of produce to the particular Glazier

restaurant location as directed by the Glazier management.


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14. At the times of each delivery, the respective restaurant staff inspected the

commodities tendered for delivery, signed for, and accepted the commodities comprising

the Plaintiffs’ claims herein.

15. That each Plaintiff issued invoices for the exact quantity of commodities

delivered and accepted by each restaurant location, and, at the specific request of

Defendant Glazier, sent copies of each invoice, listing the exact quantities of each item

delivered and accepted, and statements of account, to both the respective restaurant and

the Glazier office above alleged.

16. Plaintiffs’ invoices, containing all of the material terms of the contracts and

sales were delivered to both the respective restaurant and the Glazier, and were retained

by them without protest or exception.

17. Defendants received and retained said invoices, an exemplar copy of which

for each Plaintiff are attached hereto as Exhibit A, without protest.

18. In breach of their contracts with Plaintiffs and in violation of Section 2(4)

[7 U.S.C. §499b(4)], Defendants have failed to pay for the commodities they received and

accepted.

19. As a direct and proximate result of Defendants’ failure to remit payment

due to the Plaintiffs as described above, and their violation of the fair conduct code

imposed upon them by the PACA, Plaintiffs have suffered losses and damages in the

principal amount of not less than $209,212 plus interest at the contract rate.


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20. Defendants are indebted to Plaintiffs in the full amount of not less than

$209,212 plus interest, costs, and reasonable attorney’s fees as set forth in Plaintiffs’

terms of sale listed on their invoices to each of Defendants.

SECOND CAUSE OF ACTION(Enforcement of Statutory Trust Provisions of PACA)

20. Plaintiffs repeat, reallege and incorporate by reference all allegations and

references contained in paragraphs 1. through 19. of this Complaint as if fully set forth

herein.

21. At all times relevant Plaintiffs were engaged in the business of selling

and/or shipping perishable agricultural commodities as defined by PACA.

22. The perishable agricultural commodities that are the subject of the First

Cause of Action were purchased and sold in the stream of interstate and/or foreign

commerce as defined by the PACA and the respective case precedents interpreting such

term.

23. Pursuant to the provisions of the Statutory Trust contained in 7 U.S.C.

§499e(c) and USDA Regulations promulgated under PACA set forth in 7 C.F.R. Part 46,

at the times Plaintiffs’ commodities were delivered to Defendant Glazier’s restaurants,

Plaintiffs became beneficiaries of the trust imposed upon the res of assets held by

Defendants.

24. Plaintiffs, as licensed dealers under the PACA, placed the following legend

on each invoice sent to Defendants:


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“The perishable agricultural commodities listed on this invoice are subject to thestatutory trust authorized by section 5(c) of the Perishable AgriculturalCommodities Act 1930 (7 U.S.C. 499e(c)). The seller of these commoditiesretains a trust claim over these commodities, all inventories of food or otherproducts derived from these commodities, and any receivables or proceeds fromthe sales of these commodities until full payment is received.”

25. Pursuant to the PACA Statutory Trust, upon delivery of their produce to

Defendants, Plaintiffs became beneficiaries of a floating, non-segregated trust impressed

upon all of Defendants’ inventories of perishable agricultural commodities, and any

receivables or proceeds from the Defendants’ resale of such perishable agricultural

commodities or products and food and all other assets derived from all produce

transactions, including but not limited to, Plaintiffs’ sales to Defendants.

26. Pursuant to the Statutory Trust provisions of the PACA [7 U.S.C.

§499e(c)(1)-(5)], Plaintiffs performed and fulfilled all duties required to preserve their

PACA Trust benefits in the total amount in excess of $209,000 plus interest, costs, and

reasonable attorney’s fees in accordance with the contracts of sale.

27. Pursuant to the PACA and the Statutory Trust, Defendants are the statutory

trustees of the PACA trust assets in their possession or under their control. The PACA

Trust requires the Defendants to hold and preserve all goods, inventories, proceeds and

receivables in trust for the benefit of Plaintiffs until full payment has been made to

Plaintiffs and any other PACA-qualified produce vendor.

28. Plaintiffs are informed and believe and so allege that Defendants have

failed to maintain the Trust assets and keep them freely available to satisfy Defendants’


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obligations to Plaintiffs in that the Defendants have filed and/or refused, in direct and

continuing violation of applicable Federal and State law, to pay Plaintiffs promptly in

accordance with controlling laws and regulations, and Plaintiffs have been informed that

the Defendants, in violation of section 499(b)(4) of the PACA and the Regulations

enforcing the PACA trust provisions, 7 C.F.R. §46.46, have refused to maintain the Trust

as required by law, and are using assets held in trust for purposes other than paying

Plaintiffs and other sellers similarly situated.

29. Plaintiffs are informed, believe and allege that during all relevant times,

Defendants have dissipated portions of the PACA Trust assets in their custody or have

converted portions of such asset res to their own use.

30. As a direct and proximate cause and result of the wrongful acts and

omissions of Defendants, Plaintiffs have been damaged in the amount in excess of

$209,000 plus interest, costs, and reasonable attorney’s fees incurred in this action.

RESERVATION OF RIGHTS

31. Plaintiffs repeat, reallege, and incorporate by reference paragraphs 1.

through 30. of this Complaint as if fully set forth herein.

32. Plaintiffs are presently without sufficient information to properly assert

further causes of action arising under both Federal and State, including joinder of

additional parties, both individuals and entities, presently unknown to Plaintiffs, and

therefore reserve their rights to do so when substantiating information is received.


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WHEREFORE, Plaintiffs respectfully demands judgment against Defendants:

1. Declaring Defendants to have violated PACA and the USDA regulationspromulgated thereunder; and

2. Declaring Defendants to be the statutory trustees for the benefit of Plaintiffswith respect to the assets to which Plaintiffs have preserved their rights under thePACA and the PACA Trust; and

3. Declaring Defendants to be the constructive trustees for the benefit ofPlaintiffs of such assets and any other assets with which they have commingledPACA Trust assets; and

4. Ordering Defendants, jointly and severally to pay Plaintiffs the sums provento be due of $209,212 or such other and further sum as may be proven at trial plus applicable interest and costs, and granting Plaintiff a judgment against Defendantsand each of them for said amount; and

5. Granting Plaintiff its reasonable attorney's fees, costs, and necessarydisbursements of this action; and

6. Granting Plaintiff such other and further relief as the Court deems just andproper.

Dated: December 8, 2009

s/ Mark C. H. Mandell Mark C. H. Mandell [MM-5708]

Attorney for Plaintiff

42 Herman Thau RoadAnnandale, NJ 08801(908)638-4434


SCHEDULE A

D’ARRIGO FOOD SERVICE, INC. UNPAID SALES

LOCATION Sale & Delivery Dates AMOUNTMichael Jordan’s Steak House May 19, 2008 to March 4, 2009 $23,354.12

Bridgewaters May 5, 2008 to February 20, 2009 $24,075.72

24 5 Ave. September 15, 2008 to February 20, 2009 $ 5,407.67th

Strip House New York May 8, 2008 to February 28, 2009 $14,149.47

Westminster Hotel April 21, 2008 to March 5, 2009 $97,907.50

Monkey Bar February 6, 2008 to August 4, 2008 $14,499.10


SCHEDULE B

FOODLAND DISTRIBUTORS, INC. UNPAID SALES

LOCATION Sale & Delivery Dates AMOUNTMichael Jordan’s Steak House December 23, 2008 to January 12, 2009 $ 2,397.25

Bridgewaters November 2, 2008 to January 12, 2009 $ 1,044.00

Strip House New York December 23, 2008 to January 12, 2009 $ 3,773.50

Westminster Hotel November 5, 2008 to January 9, 2009 $ 22,604.55


EXHIBIT A


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