Beruflich Dokumente
Kultur Dokumente
2:06-cv-02044-KSH-PS
2:33-av-00001 Document
Document
7-1
1 Filed
Filed05/03/06
05/02/2006
PagePage
1 of 52
1 of
PageID:
52
5
Dennis F. Gleason
Khoren Bandazian
CARELLA, BYRNE, BAIN, GILFILLAN,
CECCHI, STEWART & OLSTEIN
5 Becker Farm Road
Roseland, NJ 07068
(973) 994-1700
Attorneys for Plaintiffs
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
Plaintiffs Nicholas Tarsia ("Tarsia"), Harold P. Cook, III ("Cook"), Bruce G. Bohuny
("Bohuny"), Gershon Alexander ("Alexander"), Joni Property Trust, LLC ("Joni Property"),
Case Case
2:06-cv-02044-KSH-PS
2:33-av-00001 Document
Document
7-1
1 Filed
Filed05/03/06
05/02/2006
PagePage
2 of 52
2 of
PageID:
52
6
South Broadway Corporate Group, LLC ("South Broadway"), South Broadway Boys, LLC
("South Broadway Boys"), 45 Holdings, LLC ("45 Holdings") and The Trolley Barn Lofts on the
Hudson, LLC ("Trolley Barn"), allege the following:
THE PARTIES
A.
Plaintiffs
1.
2.
Harold P. Cook, III resides in North Haledon, Passaic county, New Jersey.
3.
4.
5.
Joni Property is a New York limited liability corporation with offices at 55 Main
Street, Yonkers, New York. Its members are Nicholas Tarsia and Joseph Spiezio.
6.
South Broadway is a New York limited liability corporation with offices in North
Haledon, New Jersey. Its original members were Nicholas Tarsia, Harold Cook, Joseph Spiezio
and Bruce Bohuny.
7.
South Broadway Boys is a New Jersey limited liability corporation with offices in
North Haledon, New Jersey. Its members are Harold Cook, Joseph Spiezio and Bruce Bohuny.
8.
Haledon, New Jersey. Its members are Harold Cook, Bruce Bohuny and Gershon Alexander.
9.
Trolley Barn is New York limited liability corporation with offices at c/o Joni
Management, 55 Main Street, Yonkers, New York. Its members are Nicholas Tarsia, Harold
Cook and Joseph Spiezio.
B.
Defendants
10.
Case Case
2:06-cv-02044-KSH-PS
2:33-av-00001 Document
Document
7-1
1 Filed
Filed05/03/06
05/02/2006
PagePage
3 of 52
3 of
PageID:
52
7
11.
limited liability corporation located in New Rochelle, Westchester county, New York.
On
information and belief, its members are Joseph Spiezio and Louise Spiezio.
13.
information and belief, is a New York corporation with offices in Montrose, New York.
14.
Kalkstein is an accountant.
15.
entity owned or controlled by Lawrence Kalkstein, with offices in Montrose, New York.
16.
17.
18.
Chess Abstract Agency, LLC ("Chess Abstract") is a title insurance agency and
on information and belief, is a New York limited liability corporation with its principal place of
business at 55 Main Street, Yonkers, New York. On information and belief, its members are
Andrew Konecni and Joseph Spiezio.
19.
Smith, Buss & Jacobs LLP ("Smith Buss") is a law firm located in Yonkers, New
20.
York.
licensed to do business in the State of New York with an address at 250 Park Avenue, New
York, New York.
Case Case
2:06-cv-02044-KSH-PS
2:33-av-00001 Document
Document
7-1
1 Filed
Filed05/03/06
05/02/2006
PagePage
4 of 52
4 of
PageID:
52
8
Venue is proper in the United States District Court for the District of New Jersey
This action arises out of, among other things, violation of the Racketeer
Influenced and Corrupt Organization Act, 18 U.S.C. 1961, et seq. by Spiezio and others; breach
of fiduciary duty by Spiezio in connection with his management of limited liability corporations;
breach of contract by Spiezio in connection with his management of limited liability
corporations; conversion and unjust enrichment by Spiezio and others; breach of fiduciary duty
by the accountant for the limited liability corporations; and breach of contract and unjust
enrichment by the law firm retained by one of the limited liability corporations.
24.
Commencing about 1998, Spiezio has been entrusted with managing the
operations of single purpose limited liability companies ("LLCs") with whom he has shared
ownership with plaintiffs Tarsia, Cook and others. Each of the LLCs was to own, manage and
operate various real estate investments.
25.
Rather than manage the operations of the LLCs in a loyal, trustworthy and
professional manner, Spiezio has repeatedly violated his position of trust and his fiduciary duty.
Through artifice and deceit, Spiezio has intentionally diverted millions of dollars of corporate
Case Case
2:06-cv-02044-KSH-PS
2:33-av-00001 Document
Document
7-1
1 Filed
Filed05/03/06
05/02/2006
PagePage
5 of 52
5 of
PageID:
52
9
assets from the LLCs to himself, his family members, entities under his ownership and control,
and others.
26.
Additionally, Spiezio has commingled corporate assets with his own assets and
those of other individuals and/or entities that he controls and/or owns in violation of both his
fiduciary duty and the provisions of the operating agreements governing the LLCs.
27.
Finally, as an integral part of his scheme to cover up his illegal conduct, Spiezio
has, notwithstanding repeated requests, stubbornly and arrogantly failed and refused to provide
to other members of the LLCs corporate records, information and documentation to which they
are absolutely entitled.
28.
As a result, plaintiffs seek both legal and equitable relief against Spiezio and those
BACKGROUND
A.
Trolley Barn
1.
29.
Trolley Barn was formed January 3, 2002. Its members are Tarsia, Cook and
It was agreed by the members that Spiezio's percentage would be larger as a result
agreement.
32.
On July 11, 2002, Trolley Barn obtained title to 92 Main Street, Yonkers, New
York ("92 Main Street") by deed from the City of Yonkers. 92 Main Street is a former industrial
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
6 of 52
6 of
PageID:
52
10
building containing approximately 73,000 square feet that was to be renovated into 40 residential
live/work units and approximately 16,000 square feet of ground floor retail space.
33.
for the purpose of converting the property into a condominium consisting of mixed-use
commercial and residential condominium units for ultimate sale or rent (the "Trolley Barn
Project").
2.
34.
On July 11, 2002, Trolley Barn entered into a land acquisition/construction loan
with Doral Bank, FSB, increasing the loan amount to $10,400,000, in order to obtain additional
funds that Spiezio represented were needed to complete the Trolley Barn Project.
3.
36
The operating agreement for Trolley Barn expressly states that the managing
member shall provide its members with a quarterly report of Trolley Barn's operations. The
operating agreement also states that each member and his respective attorneys, accountants and
other advisors shall have the right at all times to examine, review, audit and make copies of
Trolley Barns books and records.
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
7 of 52
7 of
PageID:
52
11
37.
including copies of invoices from and checks to Joni Management & Realty Services, LLC
("Joni Management") representing the payments made to certain vendors on behalf of Trolley
Barn. Spiezio and defendant Kalkstein adamantly failed and refused to provide same.
38.
On repeated occasions since at least 2003, both Cook and Tarsia have requested
Spiezio to provide documentation regarding the expenses associated with Trolley Barn and the
Trolley Barn Project. On virtually all occasions, Spiezio failed and refused to provide the
documentation requested or provided insufficient or intentionally misleading documentation.
39.
Reports and documentation that Spiezio refused to provide include: petty cash
expenditures, monthly income/expense reports for Trolley Barn, an accounting of the receipt
disposition of the construction funds for the Trolley Barn Project, an accounting of Spiezio
controlled or owned entities that received funds from Trolley Barn and alleged payments to
Trolley Barn vendors.
b.
40.
As managing member, Spiezio was responsible for payment of all invoices and
Throughout 2003, 2004 and 2005, Spiezio failed to make timely payments to
contractors, suppliers, materialmen and vendors who had supplied products or services for the
Trolley Barn Project.
42.
Spiezio's failure to make timely payments was the result of his having diverted
Trolley Barn funds to non-Trolley Barn related expenses and/or to his own personal gain.
43.
certain vendors obtained judgments against Trolley Barn and mechanic's liens were recorded
against 92 Main Street.
7
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
8 of 52
8 of
PageID:
52
12
44.
Spiezio concealed from the other members of Trolley Barn that he had failed to
make timely payments to vendors and that mechanic's liens had been recorded against 92 Main
Street as part of his scheme to divert Trolley Barn funds.
45.
As a result of Spiezio's conduct in this regard, Tarsia and Cook were required to
satisfy these unpaid debts and incur expenses to seek relief from the mechanic's liens and were
otherwise damaged.
46.
and Stewart Title, deliberately concealed the mechanic's liens from the construction lender in
order to obtain construction financing "drawdowns" for the Trolley Barn Project.
c.
47.
Spiezio functioned as the construction manager for the Trolley Barn Project. His
Beginning as early as 2004, Spiezio elected to pay or arrange to have the various
Spiezio would receive a weekly list of the on-site workers to be paid and the
amount to be paid to each from defendant Fredericks. Spiezio and/or Fredericks would routinely
pay the workers approximately 20 percent less than the amount listed. On information and
belief, Spiezio diverted the difference to non-Trolley Barn related expenses and/or retained the
diverted money for his personal benefit.
50.
Spiezio knew that documentation kept as part of Trolley Barn records in support
As stated above, Spiezio had full responsibility for overseeing and managing the
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
9 of 52
9 of
PageID:
52
13
52.
responsibilities.
53.
54.
failure to obtain engineering plans for the first floor commercial space of
the Trolley Barn Project;
failed to point bricks on the side of the building facing the railroad.
55.
Spiezio repeatedly provided false and misleading information with respect to the
cost to complete the Trolley Barn Project. On repeated occasions, Spiezio grossly understated
the construction costs, without supporting documentation. Spiezio's understatement of the cost
to complete the Trolley Barn Project were made to induce Tarsia and Cook to continue in the
Trolley Barn Project and to conceal Spiezio's diversion of massive amounts of construction funds
9
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
10 of 10
52 of
PageID:
52
14
dedicated to complete the Trolley Barn Project. The understatements also resulted in the need to
obtain multiple refinancings for the Trolley Barn Project.
56.
In connection with the refinancings, the members of Trolley Barn were required
The members of Trolley Barn understood that submitting false information might
lending institutions that he knew to be false and misleading. By way of example, he failed to
disclose that he had transferred his interest in Trolley Barn to defendant Spiezio Family
Holdings.
59.
Barn to Spiezio Family Holdings placed Tarsia and Cook at risk in that it caused Tarsia and
Cook to bear a disproportionate share of the liability under the construction loan. Tarsia and
Cook personally guaranteed the loan, but Spiezio Family Holdings entered into no such
guarantee.
5.
60.
During the period of at least 2002 through 2004, Spiezio, on multiple occasions,
authorized and caused contributions to be made various political campaign funds from accounts
of Trolley Barn that were earmarked for the payment of expenses for the Trolley Barn Project.
61.
10
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
11 of 11
52 of
PageID:
52
15
62.
The payments to political campaigns were part of Spiezio's scheme to divert funds
from the Trolley Barn Project for non-Trolley Barn Project related expenses and/or for his
personal interest and gain.
b.
63.
Section 9.1 of the Trolley Barn operating agreement expressly states that a
member may not transfer his interest in the Trolley Barn without written consent of all the other
members.
64.
On information and belief, some time before April 13, 2003, Spiezio secretly
After secretly transferring his interest in Trolley Barn to Spiezio Family Holdings,
Spiezio falsely represented to parties dealing with Trolley Barn that he personally continued to
be a member of Trolley Barn.
66.
During the period of at least 2002 through 2003, Spiezio, on multiple occasions,
authorized and caused to be made from accounts of Trolley Barn payments to Spiezio Family
Holdings.
67.
The payments to Spiezio Family Holdings were made without the knowledge or
The transfer of funds to Spiezio Family Holdings was part of Spiezio's scheme to
divert funds from Trolley Barn to non-Trolley Barn related expenses and/or for his personal
interest and gain.
c.
69.
During the period of at least 2002 through 2004, Spiezio, on multiple occasions,
illegally authorized and caused payments to be made from the accounts of Trolley Barn to
himself and/or to others totaling hundred of thousands of dollars. By way of example:
11
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
12 of 12
52 of
PageID:
52
16
70.
Spiezio authorized Trolley Barn to pay several credit card accounts. The
amount paid for these accounts for the period of July 2002 through December
2004 was in excess of $450,000.
documentation as to how the above expenses and others relate to Trolley Barn, Spiezio has failed
and refused to provide Tarsia or Cook the documentation supporting the underlying expenses.
71.
The payments referred to above were part of Spiezio's scheme to divert funds
from Trolley Barn to non-Trolley Barn related expenses and/or for his personal interest and gain.
d.
72.
The operating agreement of Trolley Barn has separateness covenants and provides
that the managing member shall not commingle the assets of Trolley Barn with any other entity.
73.
Trolley Barn funds were transferred to and/or received from the bank accounts of
Joni Property, Mercantile Lofts, LLC, Gazette Realty Holdings, LLC, Long Beach Road
Holdings, LLC and South Broadway. None of these entities was part of Trolley Barn.
74.
The transfers to and/or receipts from these entities were made without the
12
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
13 of 13
52 of
PageID:
52
17
75.
When these transfers and receipts were discovered, Tarsia and Cook made
repeated requests to Spiezio, Fredericks (the bookkeeper) and Kalkstein (the accountant) for
documentation explaining the transfer and receipt of funds to/from these entities. However, in
furtherance of and consistent with his scheme, Spiezio, (along with Fredericks and Kalkstein, at
Spiezios direction) failed and refused to provide any explanation or documentation.
76.
The commingling of funds was part of Spiezio's scheme to divert funds from
Trolley Barn to non-Trolley Barn expenses and/or for his personal and his familys personal
gain.
e.
77.
materials be delivered to his residence in New Rochelle, New York and other locations. These
materials were improperly charged to and paid for by Trolley Barn although they were not part
of the Trolley Barn Project.
78.
On information and belief, Spiezio directed and authorized workers who were
ostensibly hired to perform work on the Trolley Barn Project to instead perform work at his
residence in New Rochelle. The work performed at Spiezio's residence was improperly charged
to and paid for by Trolley Barn although the work was not for the Trolley Barn Project.
79.
Neither Tarsia nor Cook was aware of this diversion of labor and materials and
Use of labor and materials designated for and paid for by Trolley Barn was part of
Spiezio's scheme to divert funds from Trolley Barn to non-Trolley Barn expenses and/or for his
personal and his familys personal gain.
13
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
14 of 14
52 of
PageID:
52
18
6.
81.
documents and income tax returns for Trolley Barn as well as other entities in which Spiezio,
Tarsia and Cook had an interest. Kalkstein performed such work under the names Kalkstein &
Co. or MBA Tax Associates.
82.
As part of that work, Kalkstein had access to the financial records of Trolley
83.
Kalkstein knew that Tarsia and Cook were members of Trolley Barn.
84.
Barn.
Upon learning that Kalkstein was a convicted felon and required to surrender his
license as a certified public accountant, Tarsia and Cook repeatedly demanded that Spiezio
replace Kalkstein with a licensed certified public accountant in good standing. Spiezio failed
and refused to do same.
86.
Tarsia and Cook also repeatedly requested Kalkstein to provide Tarsia and Cook
Notwithstanding that Kalkstein knew that Tarsia and Cook were members of
Trolley Barn, Kalkstein refused to produce financial information and records concerning Trolley
Barn to Tarsia and Cook.
88.
furtherance of Spiezios scheme to divert funds from Trolley Barn to non-Trolley Barn expenses
and/or for his personal gain.
14
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
15 of 15
52 of
PageID:
52
19
7.
89.
At various times, Chess Abstract, a title agency company owned and or controlled
by Spiezio, was retained to perform title rundowns searches relating to construction loan
"drawdowns" on the Trolley Barn Project. Chess Abstract was an agent of defendant Stewart
Title. Konecni was the co-owner and director of operations of Chess Abstract.
90.
On multiple occasions, Chess Abstract and Konecni, with the knowledge and at
the direction of Spiezio, deliberately failed to disclose mechanic's liens recorded against 92 Main
Street.
91.
On information and belief, Chess Abstract, as agent for Stewart Title, failed to
make disclosure of the mechanic's liens in furtherance of Spiezio's scheme to divert funds from
Trolley Barn.
92.
Furthermore, on at least one occasion, Chess Abstract and Konecni, during loan
closings for Trolley Barn, caused Trolley Barn monies to be used to pay the personal expenses of
Spiezio in furtherance of Spiezio's scheme to divert funds from Trolley Barn.
8.
Fredericks
93.
other entities that Spiezio managed, controlled or had a direct or indirect ownership interest in.
94.
Barn to non-Trolley Barn related expenses and/or for Spiezios personal gain. In that regard,
Fredericks acts include:
15
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
16 of 16
52 of
PageID:
52
20
9.
95.
In October 2004, at the insistence of Spiezio, Smith Buss was retained by Trolley
Barn to prepare an offering plan for the conversion of the Trolley Barn Project to a
condominium.
96.
Smith Buss and Trolley Barn entered into a written fee agreement concerning the
As part of the fee agreement, Trolley Barn was required to and did pay Smith
None of the work required under the fee agreement for the conversion plan was
performed by Smith Buss or was ever provided to Tarsia or Cook, notwithstanding their repeated
requests for same.
99.
Although no conversion plan had been submitted, Smith Buss requested that Tarsia
and Cook execute a certification that they had reviewed the conversion plan, when in fact no
conversion plan had ever been prepared or provided. What is more, Smith Buss knew that making
such a request was improper under the circumstances.
100.
Shortly thereafter, by letter dated October 5, 2005, Smith Buss advised Tarsia and
Cook that it would no longer provide the legal services set forth in the fee agreement. Smith
Buss apparently decided that its relationship with Spiezio presented a conflict of interest.
101.
As a result of the foregoing, Tarsia and Cook requested Smith Buss to refund the
16
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
17 of 17
52 of
PageID:
52
21
102.
Furthermore, the failure of Smith Buss to complete the offering plan has caused
Trolley Barn to unnecessarily incur substantial carrying costs, including interest, taxes,
insurance, utilities, etc.
103.
As a result of the conduct of Smith Buss, the condominium conversion plan has
not been accomplished and Tarsia and Cook have been substantially damaged.
B.
Joni Property
104.
The members of Joni Property are Tarsia and Spiezio who each have a 50 percent
interest.
105.
The sole asset of Joni Property is the Centuck Shopping Center ("Centuck"), a
property located at 1557-1591 Central Park Avenue, Yonkers, New York. Centuck consists of
approximately 47,000 square feet of rentable commercial retail space with approximately 25
tenants.
106.
Spiezio is responsible for ensuring that the monthly rent payments are collected from the tenants
of Centuck.
107.
entity owned or controlled by Spiezio) received monthly rent payments from commercial tenants
in the form of cash. Also on information and belief, all of the cash payments received have not
been deposited with Centuck.
108.
controlled by Spiezio) provide documentation regarding rents collected from tenants and cash
deposited on behalf of Centuck. Spiezio has failed and refused to provide that information. In
addition, Tarsias personal accountant, Paul Star, has requested that Spiezio and Kalkstein
17
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
18 of 18
52 of
PageID:
52
22
provide copies of complete income returns and all schedules. Spiezio and Kalkstein failed and
refused to provide same.
109.
documentation regarding the operations of Centuck, including records of rents received. Tarsia
has requested all such information but Spiezio has refused to provide same.
110.
to Tarsia, Tarsia is unable to independently determine if the finances of Centuck are in proper
order.
111.
Spiezio's failure and refusal to account for the cash rental payments and his failure
and refusal to provide documentation and information regarding operations of Centuck is part of
his scheme to divert funds from Joni Property for his personal gain.
C.
The South Broadway original members were Spiezio (25 percent), Cook (25
percent), Tarsia (25 percent) and Bohuny (25 percent). The operating agreement of South
Broadway, dated July 20, 2000, designated Spiezio, as manager.
113.
The sole asset of South Broadway was a building located at 45 South Broadway,
Yonkers.
115.
Spiezio represented to Valley National Bank, Tarsia, Cook and Bohuny that
$650,000 of the purchase money financing would be used for renovation of 45 South Broadway,
including the upgrade of the electrical system, plumbing system and fire prevention system.
18
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
19 of 19
52 of
PageID:
52
23
117.
$325,000 of the additional $800,000 would be used for renovations to 45 South Broadway.
118.
Despite repeated demands from Cook and Tarsia for copies of the loan
application, other related loan documentation and an accounting of the loan proceeds from the
City of Yonkers, Spiezio, Kalkstein and Konecni (who acted as closing agent) failed and refused
to provide the same.
119.
to Spiezio's mismanagement.
120.
In or about late 2004, Bohuny and Cook acquired the interest of Spiezio and
Tarsia and brought in Alexander as a new member. South Broadway Boys was then formed to
accomplish this acquisition.
121.
In furtherance of the buyout, a new entity, 45 Holdings was also formed. The
members are Bohuny (33 percent); Cook (33 percent); and Alexander (33 percent).
122.
loan from Sterling National Bank. The loan was used to pay off the outstanding loans on 45
South Broadway. Title to 45 South Broadway was transferred to 45 Holdings on November 12,
2004.
123.
and Bohuny detailed information regarding the renovations, management and operation of 45
South Broadway and all operations of South Broadway.
124.
125.
discovered that, notwithstanding that $975,000 ($650,000 plus an additional $325,000) had been
19
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
20 of 20
52 of
PageID:
52
24
designated by Spiezio for renovations, little if any renovations were done and those which were
performed were performed improperly and without required governmental approvals and/or
permits for the work and no certificate of occupancy was issued by the City of Yonkers.
126.
Notwithstanding repeated requests, Spiezio has never accounted for the $975,000
and the permits to complete the renovations, including the upgrade of the electrical system,
plumbing system and fire prevention system, the City of Yonkers closed down 45 South
Broadway and caused it to be vacated. 45 South Broadway remains vacant today.
D.
Long Beach Road Holdings, LLC ("Long Beach") is a New York limited liability
corporation with offices at 55 Main Street, Yonkers, New York. Its members are Nicholas Tarsia
and Joseph Spiezio.
129.
Long Beach was formed in approximately 2000 with Tarsia and Spiezio as equal
members.
130.
131.
Among the assets of Long Beach were properties located at 296-298 Long Beach
Road, Island Park, New York; 300-302 Long Beach Road, Island Park, New York; 312 Long
Beach Road, Island Park, New York; and 324-326 Long Beach Road, Island Park, New York.
Revenue was generated for Long Beach through the rental of the above commercial/residential
space.
132.
Spiezio arranged for the sale of Long Beachs properties and did so without the
consent of Tarsia.
20
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
21 of 21
52 of
PageID:
52
25
133.
from Joseph Klein (also known as Joseph Braun) the sum of $600,000 which, upon information
and belief, was a fraudulent loan and never funded to the account of Long Beach. This loan from
Joseph Klein was, upon information and belief, then paid off from the Long Beach property sale
proceeds. Notwithstanding repeated demands from Tarsia, Spiezio has never documented the
receipt of these loan funds or the payoff of same by Long Beach.
134.
About October 2004, Spiezio then claimed that Long Beach agreed to lend
Trolley Barn the sum of $600,000 toward completion of the Trolley Barn Project.
135.
Notwithstanding the lack of consent from Tarsia, Spiezio went forward with the
sale of the above Long Beach properties. Konecni and Chess Abstract assisted Spiezio in the
sale and served as the closing agent for the transactions.
136.
The proceeds of the sale were never deposited in Long Beachs account.
137.
from the sale of Long Beachs properties, Spiezio has failed and refused to provide same.
138.
As managing member, Spiezio was responsible for insuring that all tax payments
At the sale of the Long Beach properties, there was a real estate tax obligation due
in excess of $100,000.
140.
documentation regarding all operations of Long Beach, the sale of Long Beachs properties, the
disposition of the proceeds of the sale of Long Beachs properties, and the closing documents
relating to the sale of Long Beachs properties.
141.
21
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
22 of 22
52 of
PageID:
52
26
E.
The members of Gazette are Spiezio and Tarsia who each own 50 percent.
144.
145.
The sole asset of Gazette is the real property at 55-61 Main Street, Yonkers, New
Gazette obtained a loan from the City of Yonkers for certain renovations to be
performed on the property located at 55-61 Main Street. To insure completion of the work, a
portion of the loan was held back by the City of Yonkers pending completion of all required
renovation.
147.
Upon information and belief, Spiezio falsified payroll and laborer records in order
to obtain the release of the withheld loan funds escrowed by the City of Yonkers. The payroll
records indicate workers performed work and provided labor that was never performed.
148.
Upon the release of the escrowed funds, Spiezio retained the escrowed funds as
part of his overarching scheme to divert funds for his own personal gain.
149.
As an equal member, Tarsia is entitled to full and unfettered access to all of the
22
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
23 of 23
52 of
PageID:
52
27
F.
153.
154.
As an equal member, Tarsia is entitled to full and unfettered access to all of the
On multiple occasions, Tarsia has requested from Spiezio all records, documents
Spiezio has failed and refused to provide the information requested or has
American Cafe Group, LLC ("American Caf") is a New York limited liability
corporation with offices at 55 Main Street, Yonkers, New York. Its members are Nicholas Tarsia
and Joseph Spiezio.
159.
160.
161.
On multiple occasions, Tarsia has requested from Spiezio all records, documents
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
24 of 24
52 of
PageID:
52
28
163.
Spiezio has both failed and refused to provide the information requested or has
Joni Property Management & Realty Services, LLC ("Joni Management") is a New
York limited liability corporation with offices at 55 Main Street, Yonkers, New York. Its members
are Nicholas Tarsia and Joseph Spiezio.
165.
166.
167.
Spiezio uses Joni Management to manage the various entities owned or controlled
by him. Joni Management also serves as the management company for Centuck.
169.
On multiple occasions, Tarsia has requested from Spiezio all records, documents
Spiezio has both failed and refused to provide the information requested or has
Plaintiffs repeat each and every allegation contained in all of the foregoing
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
25 of 25
52 of
PageID:
52
29
173.
Spiezio, acting in concert with others, devised and intended to devise a scheme to
Spiezio, acting in concert with others, devised and intended to devise a scheme or
artifice to defraud, and for obtaining money and property by means of false or fraudulent
pretenses, representations or promises as set forth above, and for the purpose of executing such
scheme or artifice or attempting so to do transmitted or caused to be transmitted by means of
wire communications in interstate or foreign commerce, writings, signs, signals, pictures and
sounds, for the purpose of executing and in furtherance of said schemes or artifices to defraud set
forth herein in violation of 18 U.S.C. 1343.
175.
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
26 of 26
52 of
PageID:
52
30
e.
Wire transfer of funds in the amount of $250.00 from the account of
Trolley Barn to Gazette on April 29, 2003.
177.
f.
g.
h.
The multiple predicate acts set forth above occurred between at least March 19,
2003 and 2005 and such acts together constitute a pattern of racketeering activity within the
meaning of 18 U.S.C. 1961(5).
178.
179.
180.
Trolley Barn, Tarsia and Cook (as members) have been injured in their business
Pursuant to 18 U.S.C. 1964(c), Trolley Barn, Tarsia and Cook are entitled to
treble their damages, plus interest, costs and attorneys' fees by reason of Spiezio's violations of
18 U.S.C. 1962(c).
183.
Spiezios acts constitute gross negligence and willful misconduct, and Tarsia and
Cook bring this action on behalf of Trolley Barn pursuant to authority granted in Section 10 of
the Trolley Barn operating agreement.
Wherefore, plaintiffs Tarsia, Cook and Trolley Barn demand judgment against defendant
Spiezio as follows:
a.
determined;
26
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
27 of 27
52 of
PageID:
52
31
b.
c.
d.
e.
awarding Tarsia, Cook and Trolley Barn such other relief as the Court may find
Plaintiffs repeat each and every allegation contained in all of the foregoing
Kalkstein, Kalkstein & Co. and MBA Tax Associates knowingly agreed and conspired to
commit at least the predicate acts set forth above, with the knowledge that such acts were in
furtherance of their pattern of racketeering activity.
186.
Trolley Barn, Tarsia and Cook have been injured by reason of the described
Pursuant to 18 U.S.C. 1964(c), Trolley Barn, Tarsia and Cook (as members of
Trolley Barn) are entitled to treble damages, costs and attorneys' fees by reason of defendants'
violation of 18 U.S.C. 1962(d).
188.
Spiezios acts constitute gross negligence and willful misconduct, and Tarsia and
Cook bring this action on behalf of Trolley Barn pursuant to authority granted in Section 10 of
the Trolley Barn operating agreement.
27
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
28 of 28
52 of
PageID:
52
32
Wherefore, plaintiffs Tarsia, Cook and Trolley Barn demand judgment against defendants
Spiezio, Louise Spiezio, Chess Abstract, Stewart Title, Konecni, Fredericks, Kalkstein, Kalkstein
& Co. and MBA Tax Associates as follows:
a.
determined;
b.
c.
d.
e.
awarding Tarsia, Cook and Trolley Barn such other relief as the Court may find
Plaintiffs repeat each and every allegation contained in all of the foregoing
As the managing member, Spiezio has a fiduciary duty to insure that Trolley Barn
During his tenure as managing member, Spiezio breached his fiduciary duty by,
among other things, making unauthorized payments using Trolley Barn funds; commingling of
Trolley Barn funds; diverting the use of materials and labor paid for by Trolley Barn for his own
personal use; failing and refusing to provide other members of Trolley Barn with financial
records of Trolley Barn; and failing to properly manage the construction of the Trolley Barn
Project.
28
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
29 of 29
52 of
PageID:
52
33
192.
Spiezios acts constitute gross negligence and willful misconduct, and Tarsia and
Cook bring this action on behalf of Trolley Barn pursuant to authority granted in Section 10 of
the Trolley Barn operating agreement.
Wherefore, plaintiffs Tarsia, Cook and Trolley Barn demand judgment against defendant
Spiezio as follows:
a.
b.
c.
d.
e.
awarding Tarsia, Cook and Trolley Barn such other relief as the Court may find
Plaintiffs repeat each and every allegation contained in all of the foregoing
transfer his interest without the express written consent of all the members.
195.
Some time before April 13, 2003, Joseph Spiezio transferred his interest in
Spiezio's interest in the Trolley Barn remains with Spiezio Family Holdings.
197.
consent of the other members to transfer his interest in Trolley Barn to Spiezio Family Holdings.
29
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
30 of 30
52 of
PageID:
52
34
198.
By virtue of the conduct described above, Spiezio materially breached the Trolley
Barn operating agreement when he transferred his interest to Spiezio Family Holdings. He also
improperly authorized payments from Trolley Barn accounts to persons or entities who were not
entitled to receive such funds. Trolley Barn, Tarsia and Cook have sustained damages for which
Spiezio is now liable.
199.
Trolley Barn, Tarsia and Cook ask this Court to declare the transfer by Spiezio to
The operating agreement contains separateness covenants and also states that the
203.
Spiezios acts constitute gross negligence and willful misconduct, and Tarsia and
Cook bring this action on behalf of Trolley Barn pursuant to authority granted in Section 10 of
the Trolley Barn operating agreement.
Wherefore, plaintiffs Tarsia, Cook and Trolley Barn demand judgment against defendant
Spiezio as follows:
a.
b.
c.
d.
30
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
31 of 31
52 of
PageID:
52
35
e.
awarding Tarsia, Cook and Trolley Barn such other relief as the Court may find
Plaintiffs repeat each and every allegation contained in all of the foregoing
Materials and labor, paid for by Trolley Barn, were improperly used at the
As a result, Joseph and Louise Spiezio have been unjustly enriched to the
Spiezios acts constitute gross negligence and willful misconduct, and Tarsia and
Cook bring this action on behalf of Trolley Barn pursuant to authority granted in Section 10 of
the Trolley Barn operating agreement.
Wherefore, plaintiffs Tarsia, Cook and Trolley Barn demand judgment against defendants
Spiezio and Louise Spiezio as follows:
a.
b.
c.
d.
e.
awarding Tarsia, Cook and Trolley Barn such other relief as the Court may find
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
32 of 32
52 of
PageID:
52
36
Plaintiffs repeat each and every allegation contained in all of the foregoing
and in violation of the terms and conditions of the operating agreement of Trolley Barn,
unlawfully and intentionally converted the monies and assets of Trolley Barn to his own personal
use.
211.
Spiezios acts constitute gross negligence and willful misconduct, and Tarsia and
Cook bring this action on behalf of Trolley Barn pursuant to authority granted in Section 10 of
the Trolley Barn operating agreement.
Wherefore, plaintiffs Tarsia, Cook and Trolley Barn demand judgment against defendants
Spiezio and Spiezio Family Holdings as follows:
a.
b.
c.
d.
e.
f.
awarding Tarsia, Cook and Trolley Barn such other relief as the Court may find
32
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
33 of 33
52 of
PageID:
52
37
Plaintiffs repeat each and every allegation contained in all of the foregoing
monthly rents from tenants at the Centuck property on behalf of Joni Property.
215.
commercial tenants at the Centuck property and has not properly accounted for all rent
payments.
216.
219.
Spiezio is abusing in the most fundamental way the trust that Joni Property and
Tarsia have reposed in Spiezio. By engaging in such conduct, Spiezio acts contrary to the
interests of Joni Property and Tarsia and has breached his fiduciary duty to Tarsia and Joni
Property.
220.
Spiezios acts constitute gross negligence and willful misconduct, and Tarsia
brings this action on behalf of Joni Property pursuant to authority granted in Section 10 of the
Joni Property operating agreement.
Wherefore, plaintiffs Tarsia and Joni Property demand judgment against defendant
Spiezio as follows:
a.
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
34 of 34
52 of
PageID:
52
38
b.
c.
d.
e.
a decree directing Spiezio to produce all records to which Tarsia is entitled; and
f.
awarding Tarsia and Joni Property such other relief as the Court may find just and
equitable.
Plaintiffs repeat each and every allegation contained in all of the foregoing
Spiezio has failed to properly manage the Centuck property, including the
company of Centuck and seeks appointment of new management company to operate Centuck.
224.
regarding Joni Property, Tarsia seeks a full accounting for Joni Property.
225.
New York Limited Liability Law Section 701 provides for judicial dissolution of
among other things, Spiezio has not honored his obligations under the Joni Property operating
agreement regarding Centuck, the only asset of Joni Property.
34
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
35 of 35
52 of
PageID:
52
39
228.
Tarsia and Joni Property, therefore, request that the Court enter a decree judicially
Spiezios acts constitute gross negligence and willful misconduct, and Tarsia
brings this action on behalf of Joni Property pursuant to authority granted in Section 10 of the
Joni Property operating agreement.
Wherefore, plaintiffs Tarsia and Joni Property demand judgment against defendant
Spiezio as follows:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
awarding Tarsia and Joni Property such other relief as the Court may find just and
equitable.
NINTH CAUSE OF ACTION
(Breach of fiduciary duty regarding Long Beach)
By Tarsia against Spiezio
230.
Plaintiffs repeat each and every allegation contained in all of the foregoing
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
36 of 36
52 of
PageID:
52
40
232.
On information and belief, the proceeds of the sale of the property were neither
Through this scheme, Spiezio abused in the most fundamental way the trust that
Tarsia had reposed in Spiezio. By engaging in such conduct, Spiezio acted in pursuit of his own
personal aims and contrary to the interests of Long Beach and Tarsia.
234.
In violation of his fiduciary duties, Spiezio profited personally from his dealings
on behalf of Long Beach and acquired personal benefits, including misappropriation of company
assets. What is more, Spiezio concealed the extent to which he personally profited from his
conduct. By diverting income from Long Beach to himself, Spiezio breached his fiduciary duty
and must therefore account to Tarsia for the diverted income.
Wherefore, plaintiff Tarsia demands judgment against defendant Spiezio as follows:
a.
b.
c.
d.
e.
a decree directing Spiezio to produce all records to which Tarsia is entitled; and
f.
awarding Tarsia such other relief as the Court may find just and equitable.
Plaintiffs repeat each and every allegation contained in all of the foregoing
Spiezio, with the assistance of Chess Abstract, Konecni and Stewart Title, closed
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
37 of 37
52 of
PageID:
52
41
237.
Spiezio and Spiezio Family Holdings have never accounted for the proceeds from
the sale.
238.
Spiezio and Spiezio Family Holdings have unlawfully and intentionally converted
b.
c.
d.
e.
f.
awarding Tarsia such other relief as the Court may find just and equitable.
Plaintiffs repeat each and every allegation contained in all of the foregoing
241.
information regarding Long Beach. Spiezio has failed and refused to provide such information.
242.
Tarsia seeks a full accounting from Spiezio of the operations and management of
Long Beach.
243.
New York Limited Liability Law Section 701 provides that a limited liability
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
38 of 38
52 of
PageID:
52
42
244.
among other things, Spiezio as managing member, has not honored his obligations under the
operating agreement and as a result of the previous sale of properties, there are no other assets of
Long Beach.
246.
Tarsia therefore requests that the Court enter a decree dissolving Long Beach after
an accounting.
Wherefore, plaintiff Tarsia demands judgment against defendant Spiezio as follows:
a.
b.
c.
d.
e.
f.
g.
h.
awarding Tarsia such other relief as the Court may find just and equitable.
Plaintiffs repeat each and every allegation contained in all of the foregoing
38
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
39 of 39
52 of
PageID:
52
43
249.
documentation requested.
250.
251.
New York Limited Liability Law Section 701 provides that a limited liability
dissolution of Gazette.
253.
other things, Spiezio as managing member, has not honored his obligations under the operating
agreement.
Wherefore, plaintiff Tarsia demands judgment against defendant Spiezio as follows:
a.
b.
c.
d.
e.
f.
g.
h.
awarding Tarsia such other relief as the Court may find just and equitable.
39
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
40 of 40
52 of
PageID:
52
44
Plaintiffs repeat each and every allegation contained in all of the foregoing
256.
information regarding the operation and management of Mercantile. Spiezio has failed to
provide the documentation requested.
257.
Tarsia seeks a full accounting from Spiezio relating to the operations and
management of Mercantile.
258.
New York Limited Liability Law Section 701 provides that a limited liability
dissolution of Mercantile.
260.
among other things, Spiezio as managing member, has not honored his obligations under the
operating agreement of Mercantile.
261.
Tarsia requests that the Court enter a decree dissolving Mercantile after an
accounting.
Wherefore, plaintiff Tarsia demands judgment against defendant Spiezio as follows:
a.
b.
c.
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
41 of 41
52 of
PageID:
52
45
d.
e.
f.
g.
h.
awarding Tarsia such other relief as the Court may find just and equitable.
Plaintiffs repeat each and every allegation contained in all of the foregoing
information regarding the operation and management of American Caf. Spiezio has failed to
provide the documentation requested.
264.
Tarsia seeks a full accounting from Spiezio relating to the operation and
New York Limited Liability Law Section 701 provides that a limited liability
among other things, Spiezio as managing member, has not honored his obligations under the
operating agreement of American Caf.
268.
Tarsia requests that the Court enter a decree dissolving American Caf after an
accounting.
41
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
42 of 42
52 of
PageID:
52
46
b.
c.
d.
e.
f.
g.
h.
awarding Tarsia such other relief as the Court may find just and equitable.
Plaintiffs repeat each and every allegation contained in all of the foregoing
Pursuant to the buyout agreement selling his interest in South Broadway, Spiezio
was to provide detailed information regarding the operation and management of South
Broadway, including the disposition of loan proceeds dedicated for renovations which were not
performed or performed improperly and failed to obtain proper permits and certificates of
occupancy.
271.
requested.
272.
Spiezio has breached his agreements with Cook, Bohuny, Alexander, South
Broadway, South Broadway Boys and 45 Holdings by failing to properly cause the renovations
42
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
43 of 43
52 of
PageID:
52
47
required to be performed on 45 South Broadway and deliberately misrepresenting that such work
was performed.
Wherefore, plaintiffs Cook, Bohuny, Alexander, South Broadway, South Broadway Boys
and 45 Holdings demand judgment against defendant Spiezio as follows:
a.
awarding Cook, Bohuny, Alexander, South Broadway, South Broadway Boys and
awarding Cook, Bohuny, Alexander, South Broadway, South Broadway Boys and
awarding Cook, Bohuny, Alexander, South Broadway, South Broadway Boys and
awarding Cook, Bohuny, Alexander, South Broadway, South Broadway Boys and
awarding Cook, Bohuny, Alexander, South Broadway, South Broadway Boys and
45 Holdings such other relief as the Court may find just and equitable.
Plaintiffs repeat each and every allegation contained in all of the foregoing
Spiezio has breached his fiduciary duty to Cook, Bohuny, Alexander, South
Broadway, South Broadway Boys and 45 Holdings by failing to account for the funds which
were dedicated for renovations that were not performed or performed improperly and by failing
to accomplish the renovations on 45 South Broadway and failed to obtain proper permits and
certificates of occupancy.
43
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
44 of 44
52 of
PageID:
52
48
275.
Spiezio has breached his fiduciary with Cook, Bohuny, Alexander, South Broadway,
South Broadway Boys and 45 Holdings by failing to properly cause the renovations required to be
performed on 45 South Broadway and deliberately misrepresenting that such work was performed.
Wherefore, plaintiffs Cook, Bohuny, Alexander, South Broadway, South Broadway Boys
and 45 Holdings demand judgment against defendant Spiezio as follows:
a.
awarding Cook, Bohuny, Alexander, South Broadway, South Broadway Boys and
awarding Cook, Bohuny, Alexander, South Broadway, South Broadway Boys and
awarding Cook, Bohuny, Alexander, South Broadway, South Broadway Boys and
45 Holdings such other relief as the Court may find just and equitable.
Plaintiffs repeat each and every allegation contained in all of the foregoing
Kalkstein, Kalkstein & Co. and MBA Tax Associates were retained by Spiezio to
prepare financial documents and income tax returns for Joni Property, Long Beach, South
Broadway, Mercantile and Trolley Barn.
44
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
45 of 45
52 of
PageID:
52
49
278.
In preparing financial documents and income tax returns for Joni Property, South
Broadway and Trolley Barn, Kalkstein, Kalkstein & Co. and MBA Tax Associates had a duty to
the entity that retained them to insure that the information that defendants were supplying was
true and accurate.
279.
Contrary to that duty, Kalkstein, Kalkstein & Co. and MBA Tax Associates
improperly transferred QUEZE credits from Cook to Spiezio in connection with South
Broadway. This action was not authorized by Cook and affected his income tax liability.
280.
Contrary to their fiduciary duty, Kalkstein, Kalkstein & Co. and MBA Tax
Associates improperly made adjustments to the capital account of Joni Property to the detriment
of Tarsia. This action was not authorized by Tarsia and affected his income tax liability.
281.
In connection with preparing income tax returns for Trolley Barn, Kalkstein,
Kalkstein & Co. and MBA Tax Associates were aware that Spiezio had transferred his interest in
Trolley Barn to Spiezio Family Holdings.
282.
Kalkstein, Kalkstein & Co. and MBA Tax Associates concealed the transfer by
Spiezio to Tarsia and Cook, which Kalkstein knew to be a breach of the Trolley Barn operating
agreement.
283.
Kalkstein, Kalkstein & Co. and MBA Tax Associates were aware of and engaged
in the commingling of funds between and among, Joni Property, Trolley Barn, South Broadway,
Long Beach, and Mercantile, and did not disclose the commingling to Tarsia or Cook. Kalkstein
understood that such commingling of funds was improper.
284.
Kalkstein, Kalkstein & Co. and MBA Tax Associates, in preparing financial
records and income tax returns for Trolley Barn were aware the Spiezio had authorized the
payment of expenses by Trolley Barn for expenses not related to Trolley Barn.
45
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
46 of 46
52 of
PageID:
52
50
285.
On multiple occasions, Tarsia or Cook would request from Kalkstein, Kalkstein &
Co. and MBA Tax Associates financial information relating to one or more LLCs in which
Tarsia and or Cook had an interest with Spiezio. Kalkstein, Kalkstein & Co. and MBA Tax
Associates either provided inadequate or incomplete information or failed to produce the
financial information requested.
Wherefore, plaintiffs Tarsia, Cook, Bohuny, Alexander, South Broadway and Trolley
Barn demand judgment against defendants Kalkstein, Kalkstein & Co. and MBA as follows:
a.
Boys and Trolley Barn such other relief as the Court may find just and equitable.
Plaintiffs repeat each and every allegation contained in all of the foregoing
Smith Buss was retained in October 2004 by Trolley Barn to prepare a conversion
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
47 of 47
52 of
PageID:
52
51
288.
October 29, 2004, Trolley Barn made a payment of $10,000 for the "Basic Work" in preparing a
conversion plan.
289.
terminated the October 29 agreement between Trolley Barn and Smith Buss regarding the
condominium conversion project.
290.
After its letter of termination, Smith Buss did not return any portion of the initial
Smith Buss breached its agreement with Trolley Barn regarding the condominium
Smith Buss breached its duty of good faith and fair dealing when it did not
c.
d.
e.
f.
awarding Tarsia, Cook and Trolley Barn such other relief as the Court may find
47
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
48 of 48
52 of
PageID:
52
52
Plaintiffs repeat each and every allegation contained in all of the foregoing
providing legal services for Trolley Barn as requested, Smith Buss has been unjustly enriched.
295.
Spiezios acts constitute gross negligence and willful misconduct, and Tarsia and
Cook bring this action on behalf of Trolley Barn pursuant to authority granted in Section 10 of
the Trolley Barn operating agreement.
Wherefore, plaintiffs Tarsia, Cook and Trolley Barn demand judgment against defendant
Smith Buss as follows:
a.
c.
d.
e.
awarding Tarsia, Cook and Trolley Barn such other relief as the Court may find
48
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
49 of 49
52 of
PageID:
52
53
Plaintiffs repeat each and every allegation contained in all of the foregoing
information regarding the operation and management of Joni Management. Spiezio has failed to
provide the documentation requested.
298.
299.
New York Limited Liability Law Section 701 provides that a limited liability
because, among other things, Spiezio as managing member, has not honored his obligations
under the operating agreement of Joni Management.
302.
Tarsia and Joni Management, therefore, request that the Court enter a decree
dissolving Joni Management after a full and complete accounting has been rendered.
Wherefore, plaintiff Tarsia demands judgment against defendant Spiezio as follows:
a.
b.
c.
d.
e.
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
50 of 50
52 of
PageID:
52
54
f.
g.
h.
awarding Tarsia such other relief as the Court may find just and equitable.
50
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
51 of 51
52 of
PageID:
52
55
JURY DEMAND
Plaintiffs request a trial by jury on all issues so triable.
CARELLA, BYRNE, BAIN, GILFILLAN,
CECCHI, STEWART & OLSTEIN
5 Becker Farm Road
Roseland, NJ 07068
(973) 994-1700
51
Case 2:06-cv-02044-KSH-PS
Case 2:33-av-00001 Document
Document7-1
1 Filed
Filed
05/03/06
05/02/2006
Page Page
52 of 52 of
PageID:
52
56
Joseph Spiezio has filed an action in U.S. District Court for the Southern District
of New York captioned Joseph F. Spiezio, III v. Harold P. Cook, III, Perconti & Cook and
Bruce Bohuny, Docket No. 05-9008, which relates to the subject matter of 45 Holdings, LLC.
Defendants have moved to dismiss the action for lack of subject matter jurisdiction or in the
alternative to transfer the action to the District of New Jersey where venue is proper. The
motion, as of the date of this filing, remains pending.
2.
Joseph Spiezio has filed an action in U.S. District Court for the Southern District
of New Jersey captioned Joseph F. Spiezio, III v. Harold P. Cook, III, Nicholas Tarsia and
Perconti & Cook, Docket No. 06-2645 which relates to the subject matter of The Trolley Barn
Lofts on the Hudson, LLC.
By:_____s/Dennis F. Gleason____________
Dennis F. Gleason
#273670
52