FILED: MONROE COUNTY CLERK 07/27/2018 03:54 PM INDEX NO.

E2018005833
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/27/2018

STATE OF NEW YORK

SUPREME COURT : COUNTY OF MONROE

HERBERT MORGAN II LLC,

1080 Pittsford-Victor Road

Pittsford, New York 14534

Plaintiff,
SUMMONS
v.
Index No.:
MORGAN TEXAS REALTY LLC,
1080 Pittsford-Victor Road

Pittsford, New York 14534

BAYBERRYTREE APARTMENTS LLC,

1080 Pittsford-Victor Road

Pittsford, New York 14534

THE ROBERT MORGAN LIMITED PARTNERSHIP III,

1080 Pittsford-Victor Road

Pittsford, New York 14534

GRAND ATLAS PROPERTY MANAGEMENT, LLC

f/k/a MORGAN MANAGEMENT, LLC
1080 Pittsford-Victor Road

Pittsford, New York 14534

ROBERT C. MORGAN,
1080 Pittsford-Victor Road

Pittsford, New York 14534

Defendants.

TO THE ABOVE NAMED DEFENDANTS:

You are hereby summoned and required to serve upon plaintiff's attorney an answer to
the verified complaint in this action within twenty (20) days after the service of this summons,
exclusive of the day of service, or within thirty (30) days after service is complete if this
summons is not personally delivered to you within the State of New York, In case of your
failure to answer, judgment will be taken against you by default for the relief demanded in the

verified complaint.

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The basis of the venue designated is the principal place of business for the plaintiff which
is located in Monroe County at 1080 Pittsford-Victor Road, Pittsford, New York 14534.

Dated: July 25, 2018

Buffalo, New York ZDARSKY, SAWICKI & AGOSTINELLI LLP

By:
Joseph E. Zdarsky, Esq.
Patrick A. Dudley, Esq.
Attorneys for Plaintiff
1600 Main Place Tower

350 Main Street

Buffalo, New York 14202

(716) 855-3200

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STATE OF NEW YORK

SUPREME COURT : COUNTY OF MONROE

HERBERT MORGAN II LLC,

Plaintiff, VERIFIED
COMPLAINT
v.
Index No.:

MORGAN TEXAS REALTY LLC,

BAYBERRYTREE APARTMENTS LLC,
THE ROBERT MORGAN LIMITED PARTNERSHIP III,
GRAND ATLAS PROPERTY MANAGEMENT, LLC
f/k/a MORGAN MANAGEMENT, LLC
and
ROBERT C. MORGAN,

Defendants.

Plaintiff HERBERT MORGAN II LLC, by its attorneys Zdarsky, Sawicki 4 Agostinelli

LLP, as and for its verified complaint against the defendants, states and alleges as follows:

1. Plaintiff is and at all relevant times has been a New York limited liability

company having its principal office at 1080 Pittsford-Victor Road, Pittsford, New York 14534.

2. Defendant Morgan Texas Realty LLC is and at all relevant times has been a

New York limited liability company having its principal office at 1080 Pittsford-Victor Road,

Pittsford, New York 14534.

3. Defendant Bayberrytree Apartments LLC is and at all relevant times has been

a Delaware limited liability company having its principal address at 1080 Pittsford-Victor Road,

Pittsford, New York 14534.

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4. Defendant Grand Atlas Property Management, LLC f/k/a Morgan Management,

(" Atlas"
LLC ("Grand Atlas") at all times relevant was and still is a New York limited liability company

with an office and principal place of business in the County of Monroe and State of New York.

5. Defendant The Robert Morgan Limited Partnership III is and at all relevant

times has been a New York limited partnership having its principal place of business at

1080 Pittsford-Victor Road, Pittsford, New York 14534.

6. Defendant Robert C. Morgan is a resident of Monroe County, New York.

7. Plaintiff is and at all relevant times has been a member of defendant Morgan

Texas Realty LLC, having a 25% membership interest therein.

8. The other members of defendant Morgan Texas Realty LLC are and at all relevant

times have been defendant The Robert Morgan Limited Partnership III (45% membership

interest) and The RJM Fund LLC (30% membership interest).

9. Defendant Robert C. Morgan is and at all relevant times has been the manager of

defendant Morgan Texas Realty LLC.

10. Defendant Morgan Texas Realty LLC is and at all relevant times was the sole

member of certain limited liability companies that owned apartment complexes located in the

State of Texas known as the Stone Ridge Apartments, the University Green Apartments and the

Veranda Apartments, to wit: Morgan Stone Ridge Apartments, LLC; Morgan University Green

Apartments, LLC and Veranda Apartments, LLC.

11. Plaintiff Herbert Morgan II LLC is and at all relevant times has been a member of

defendant Bayberrytree Apartments LLC, having a 25% membership interest therein.

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12. The other members of defendant Bayberrytree Apartments LLC are and at all

relevant times have been defendant The Robert Morgan Limited Partnership III (45%

membership interest) and The RJM Fund LLC (30% membership interest).

13. Defendant Bayberrytree Apartments LLC at all relevant times was the owner of a

certain apartment complex located in the State of Texas known as the Bayberrytree Apartments.

14. Defendant Robert C. Morgan is and at all relevant times has been the manager of

defendant Bayberrytree Apartments LLC.

15. The Stone Ridge Apartments, University Green Apartments, Veranda Apartments

Three"
and Bayberrytree Apartments are hereinafter referred to respectively as the "Texas and

"Bayberrytree".

16. At all times relevant defendant Grand Atlas acted as property manager for the

Texas Three and Bayberrytree pursuant to property management agreements with the entities

which owned the respective properties, and upon information and belief, its operations were

operated and controlled, directly or indirectly, by defendant Robert C. Morgan.

17. Defendants, according to their interests, caused the Texas Three and Bayberrytree

to be sold and the closing of said sales took place on or about March 1, 2018.

18. After paying the balance of the mortgage owing on Bayberrytree and other

expenses associated with the sale, defendant Bayberrytree received net proceeds from the sale in

the amount of $4,829,404.00.

19. After paying the balance of the combined mortgage owing on the Texas Three

and other expenses associated with the sale, defendant Morgan Texas Realty LLC received net

sales proceeds totaling $14,425,365.00.

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20. Upon information and belief, defendants have caused distributions of the net sales

proceeds to be made to defendant The Robert Morgan Limited Partnership III or some other

entity under the dominion and control of defendant Robert C. Morgan, and to the RJM Fund

LLC controlled by Robert Moser.

21. Defendants did not give any notice of the closings to Herbert Morgan, the

majority member and a manager of plaintiff, which had a 25% interest in the transactions.

22. Upon information and belief, the closings were concealed from Herbert Morgan

so that defendant Robert C. Morgan, individually and as manager of the other defendants, could

take control of the proceeds from the sales and distribute those proceeds in such a way so as to

cut plaintiff out of the deal.

23. Since learning of the closings, Herbert Morgan, on behalf of plaintiff, has made

repeated demands upon defendant Robert C. Morgan for information regarding plaintiff's share

of the sales proceeds and for payment.

24. However, despite repeated demands, defendants have failed and refused to

provide any information or make any distribution of the 25% share of the net sales proceeds

owing to plaintiff Herbert Morgan II LLC.

25. Upon information and belief, for its 45% interest in Bayberrytree Apartments

LLC and Morgan Texas Realty LLC, defendant The Robert Morgan Limited Partnership Ill has

received the sum of approximately $8,664,646.00.

26. Upon information and belief, for its 30% membership interest in Bayberrytree

Apartments LLC and Morgan Texas Realty LLC, the RJM Fund LLC has received the sum of

approximately $5,776,431.00.

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27. Plaintiff has received nothing and, upon information and belief, its 25% share of

the sales proceeds totaling approximately $4,813,692.00 has been diverted by defendants to

either defendant The Robert Morgan Limited Partnership III or some other entity or person under

the dominion and control of defendant Robert C. Morgan.

28. Under the terms of the operating agreements for defendants Bayberrytree

Apartments, LLC and Morgan Texas Realty LLC, Section 18-504 of the Delaware Limited

Liability Company Act, and Section 504 of the New York Limited Liability Company Law,

distributions, if made, must be made on a pro rata basis according to the percentage of

membership interest owned by the members.

29. Based upon the foregoing, for its 25% membership interest in defendant

Bayberrytree Apartments LLC and Morgan Texas Realty LLC, plaintiff Herbert Morgan II LLC

is entitled to receive a distribution in the sum of approximately $4,813,692.00.

30. Upon information and belief, the defendant Robert C. Morgan, acting individually

and/or through defendant Grand Atlas, misappropriated the share of net sales proceeds payable to

plaintiff, and diverted the sum of $4,813,692.18 to defendant The Robert Morgan Limited

Partnership III, defendant Robert C. Morgan or some other entity or person under the dominion

and control of defendant Robert C. Morgan.

AS AND FOR A FIRST CAUSE OF ACTION AGAINST DEFENDANT

MORGAN TEXAS REALTY LLC
(DEBTOR/CREDITOR)

31. Plaintiff repeats each and every allegation contained in paragraphs 1 through 30

as if fully set forth herein.

32. Section 18-606 of the Delaware Limited Liability Company Act and Section 506

of the New York Limited Liability Company Law provide that, subject to certain provisions not

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applicable here, unless otherwise provided in the limited liability company agreement, at the

time a member becomes entitled to receive a distribution, the member has the status of, and is

entitled to all remedies available to, a creditor of the limited liability company with respect to the

distribution.

33. By virtue of its status as a member of Bayberrytree Apartments LLC, and by

operation of the aforementioned statutes, plaintiff is and has been entitled to receive a

distribution of 25% of the net sales proceeds of the Bayberrytree Apartments.

34. The operating agreement for Bayberrytree Apartments LLC does not contain

anything to the contrary.

35. By virtue of the foregoing, defendant Morgan Texas Realty LLC is indebted to

plaintiff in the sum of $3,606,341.00.

AS AND FOR A SECOND CAUSE OF ACTION AGAINST DEFENDANT

BAYBERRYTREE APARTMENTS LLC

(DEBTOR/CREDITOR)

36. Plaintiff repeats and realleges each and every allegation contained in paragraphs

1 through 30 as if fully set forth herein.

37. Section 18-606 of the Delaware Limited Liability Company Act and Section 504

of the New York Limited Liability Act provide that, subject to certain provisions not applicable

here, unless otherwise provided in the limited liability company agreement, at the time a member

becomes entitled to receive a distribution, the member has the status of, and is entitled to all

remedies available to, a creditor of the limited liability company with respect to the distribution.

38. By virtue of its status as a member of Bayberrytree Apartments LLC, and by

operation of the aforementioned statutes, plaintiff is and has been entitled to receive a

distribution of 25% of the net sales proceeds of the Bayberrytree Apartments.

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39. The operating agreement for Bayberrytree Apartments LLC does not contain

anything to the contrary.

40. By virtue of the foregoing, defendant Bayberrytree Apartments LLC is indebted

to plaintiff in the sum of $1,207,351.00.

AS AND FOR THIRD CAUSE OF ACTION AGAINST

DEFENDANT ROBERT C. MORGAN
(BREACH OF FIDUCIARY DUTY AND
BREACH OF OPERATING AGREEMENT)

41. Plaintiff repeats and realleges each and every allegation contained in paragraphs

1 through 30 as if fully set forth herein.

42. As manager of Bayberrytree Apartments LLC and Morgan Texas Realty LLC,

defendant Robert C. Morgan owes fiduciary duties of loyalty, honesty, fidelity and fair dealing to

the other members of those companies, including plaintiff Herbert Morgan 11 LLC.

43. The operating agreements for Bayberrytree Apartments LLC and Morgan Texas

Realty LLC do not contain anything to the contrary.

44. Moreover, the operating agreements for Bayberrytree Apartments LLC and

Morgan Texas Realty LLC provide at Section 5.6(f) that Robert C. Morgan, as manager, is liable

to other members of the companies for loss or damage incurred by reason of actions taken in bad

faith, intentional breach of the operating agreements or any other action taken by him in a

manner not reasonably believed by him to be within the scope of the authority granted to the

manager under the operating agreements.

45. Defendant Robert C. Morgan's acts, in his capacity as manager, in causing the

companies to pay the sales proceeds distributions to two of the three members, including

diverting plaintiff's 25% share of the total distributions to some entity controlled by him, and

refusing to make any distribution to the plaintiff, were taken in bad faith, constitute an

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intentional breach of the operating agreements and were, upon information and belief, not

reasonably believed by him to be within the scope of his authority as manager.

46. Moreover, the acts of defendant Robert C. Morgan were taken with the express

intent of harming the members of plaintiff Herbert Morgan 11 LLC.

47. Upon information and belief, there is no legal justification for the disparate

treatment of plaintiff and refusal to pay plaintiff a distribution in the amount of its pro rata share

of the proceeds from the sales of the Bayberrytree Apartments and the Texas Three apartments.

defendants'
48. As a result of the breaches of fiduciary duty and of the operating

agreements, plaintiff has been damaged in the sum of $4,813,692.00.

49. By virtue of the foregoing, defendant Robert C. Morgan is liable to plaintiff in the

sum of $4,813,692.00.

AS AND FOR A FOURTH CAUSE OF ACTION AGAINST DEFENDANTS

ROBERT C. MORGAN, GRAND ATLAS PROPERTY MANAGEMENT, LLC
AND THE ROBERT MORGAN LIMITED PARTNERSHIP III

(CONVERSION)

50. Plaintiff repeats and realleges each and every allegations contained in paragraphs

1 through 30 as if fully set forth at length herein.

51. Upon information and belief, following the sale of the properties, defendant

Grand Atlas, through its officers, agents, servants and employees, transferred the net proceeds of

the sale to various accounts or payees, without disclosure to plaintiff.

52. Defendants Robert C. Morgan, Grand Atlas and The Robert M.organ Limited

Partnership 111 have unlawfully failed and refused to pay plaintiff its rightful 25% share of the

proceeds of the sales of the Texas Three and the Bayberrytree apartments.

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53. Upon information and belief, those defendants have diverted the distributions

owing to plaintiff to defendant The Robert Morgan Limited Partnership lll or some other entity

or person under the dominion and control of defendant Robert C. Morgan.

54. In so doing, defendants assumed dominion and control over property belonging to

the plaintiff by disposing of it, misusing it or otherwise dealing with it in a manner inconsistent

with the plaintiff's ownership rights.

55. Based upon the foregoing, defendants Robert C. Morgan, Grand Atlas and

The Robert Morgan Limited Partnership III are liable, jointly and severally, to plaintiff for

conversion in the sum of $4,813,692.18.

AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANTS

MORGAN TEXAS REALTY LLC, BAYBERRYTREE APARTMENTS LLC AND
ROBERT C. MORGAN (SPECIFIC PERFORMANCE)

56. Plaintiff repeats and realleges each and every allegation contained in paragraphs

1 through 30 as if fully set forth herein.

57. At all relevant times, plaintiff has been ready, willing and able to perform, and

has performed, all duties and obligations owed under the operating agreements for Morgan Texas

Realty LLC and Bayberrytree Apartments LLC, including without limitation with respect to

dissolution and winding up of the affairs of the companies.

58. The operating agreements for the companies provide that the sale or other

disposition of all of substantially all of the assets of each company shall be a dissolution event.

59. The sale of the subject apartment complexes was a sale or other disposition of all

of the assets of Morgan Texas Realty LLC and Bayberrytree Apartments LLC and was therefore

was a dissolution event for both companies.

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60. The operating agreements for the companies provide that upon the occurrence of

a dissolution event, the companies shall continue solely for the purposes of winding up their

affairs and making distributions in accordance with the terms thereof, including without

limitation to the members.

61. The operating agreements for the companies provide that the manager Robert C.

Morgan shall be responsible for overseeing the winding up and liquidation of the companies and

the distributions to members.

62. Plaintiff has demanded that defendants make distributions to plaintiff in

accordance with the terms of the operating agreements.

63. Defendants have refused and continue to refuse to comply with the express

written terms of the operating agreements.

64. Plaintiff has no adequate remedy at law to enforce the provisions of the

agreements providing for dissolution and payment of distributions to the members.

65. By virtue of the foregoing, plaintiff is entitled to specific performance of the

terms and provisions of the operating agreements for Morgan Texas Realty LLC and

Bayberrytree Apartments LLC by decree of this Court ordering defendants to wind up the affairs

of the companies and pay distributions to the plaintiff in the amount of its 25% membership

interests in Morgan Texas Realty LLC and Bayberrytree Apartments LLC.

AS AND FOR A SIXTH CAUSE OF ACTION AGAINST DEFENDANTS

ROBERT C. MORGAN AND GRAND ATLAS
(ACCOUNTING AND DECLARATION OF A
CONSTRUCTIVE TRUST)

66. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1

through 30 as if fully set forth at length herein.

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67. As manager of Bayberrytree Apartments LLC and Morgan Texas Realty LLC,

defendant Robert C. Morgan owes fiduciary duties of loyalty, honesty, fidelity and fair-dealing

to the other members of those companies, including plaintiff Herbert Morgan II LLC.

68. The operating agreements for Bayberrytree Apartments LLC and Morgan Texas

Realty LLC do not contain anything to the contrary.

69. At all times relevant defendant Grand Atlas acted as property manager for

defendants Bayberrytree Apartments LLC and Morgan Texas Realty LLC pursuant to property

management agreements with those companies and, upon information and belief, its operations

were directed and controlled, directly or indirectly, by defendant Robert C. Morgan.

70. Upon information and belief, following the sale of the properties, defendant

Grand Atlas, through its officers, agents, servants and employees, transferred the net proceeds of

the sale to various accounts or payees, without disclosure to plaintiff.

71. Plaintiff has heretofore duly demanded of defendants Robert C. Morgan and

Grand Atlas that they account for their acts, undertaken by defendant Robert C. Morgan either

individually or through his control over defendant Grand Atlas, in collecting and dispersing the

proceeds of the sales of the Texas Three and Bayberrytree and that they pay over to plaintiff all

amounts due and owing to plaintiff.

72. However, defendant Robert C. Morgan has failed and refused to do so and has

never rendered any accounting for the monies received and dispersed by him or as directed by

him, nor has plaintiff ever received payment.

73. Upon information and belief, defendant Robert C. Morgan intends to use the

monies due and owing to the plaintiff for his own individual purposes and/or purposes of one or

more entities under his dominion and control, all in derogation of the rights of plaintiff.

11

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74. By reason of the foregoing, and pursuant to the fiduciary duties owed by

defendant Robert C. Morgan to the plaintiff, plaintiff is entitled to a full accounting from the

defendants for the monies received from the sales of the Texas Three and Bayberrytree, and

payment of the proceeds in which plaintiff has an interest.

75. In addition, by virtue of the foregoing, plaintiff is entitled to a declaration that

defendant Robert C. Morgan or such other defendant as is in possession of the monies due and

owing to the plaintiff holds the said monies as trustee of a constructive trust for the sole and

exclusive benefit of the plaintiff.

76. Plaintiff has no adequate remedy at law.

WHEREFORE, plaintiff demands judgment against the defendants as follows:

a. On the first cause of action, money judgment against defendant Morgan

Texas Realty LLC in the sum of $3,606,341.00, with interest thereon;

b. On the second cause of action, money judgment against defendant

Bayberrytree Apartments LLC in the sum of $1,207,351.00, with interest thereon;

c. On the third cause of action, money judgment against defendant Robert C.

Morgan in the sum of $4,813,692.00, with interest thereon;

d. On the fourth cause of action, money judgment against defendants

Robert C. Morgan, Grand Atlas Property Management LLC and The Morgan Limited

Partnership III, jointly and severally, in the sum of $4,813,692.00, with interest thereon;

e. On the fifth cause of action, an order and judgment granting specific

performance and directing defendants Morgan Texas Realty LLC, Bayberrytree Apartments LLC

and Robert C. Morgan, jointly and severally, pay distributions to the plaintiff in the sum of

$4,813,692.00, with interest thereon;

12

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f. On the sixth cause of action, an order and judgment directing that

defendants Robert C. Morgan and Grand Atlas provide a full accounting to plaintiff for all of the

monies received from the sales of the Texas Three and Bayberrytree apartments and declaring

and imposing a constructive trust upon $4,813,692.00 of those proceeds, with interest thereon,

being the amount of plaintiff's 25% interest therein, to be held by defendant Robert C. Morgan

or such other defendant or entity controlled by him that is in possession of the said funds for the

sole and exclusive benefit of the plaintiff; and

g. Granting such other and further relief as to the Court seems just and

proper.

Dated: July 25, 2018

Buffalo, New York ZDARSKY, SAWICKI & AGOSTINELLI LLP

By:
Joseph E. Zdarsky, Esq.
Patrick A. Dudley, Esq.
Attorneys for Plaintiff
1600 Main Place Tower
350 Main Street

Buffalo, New York 14202

(716) 855-3200

13

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V E R I F I C A T I O N

STATE OF PENNSYLVANIA )
) ss:
COUNTY OF YORK )

Herbert Morgan, being duly sworn, deposes and says that he is the general partner of the

managing member of Herbert Morgan II LLC, the plaintiff in this action, that he has read the

foregoing Verified Complaint and knows the contents thereof; that the same is true to his own

knowledge, except as to the matters therein stated to be alleged on information and belief and
that as to those matters he believes it to be true.

Deponent further says that the reason this verification is made by deponent and not by
Herbert Morgan II LLC is because Herbert Morgan II LLC is a limited liability company and the

grounds of deponent's belief as to all matters in the said Complaint not stated upon his own

knowledge, are investigations which deponent has caused to be made concerning the subject
matter of the Complaint and information acquired by deponent in the course of his duties as
general partner of the Manager of Herbert Morgan II LLC and from the books and papers of
Herbert Morgan II LLC.

'I

Herbert Morgan

Sworn to before me this

2 fday of JLtuf , 2018

(Notary ic)

COMMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
DIANE Y. GROSS, Notary PubEc
York Twp., York County

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