`NYSCEF DOC. NO. 1
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`INDEX NO. 510382/2019
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`RECEIVED NYSCEF: 05/09/2019
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`----------------------------------------------------------------------x
`AIRS CAPITAL FUNDING, LLC,
`
`Plaintiff,
`
`- against -
`
`GREEN NOTE CAPITAL PARTNERS INC.,
`GABRIEL MANN a/k/a GABE MANN and
`ISAAC KASSAB,
`
`Defendants.
`----------------------------------------------------------------------x
`
`TO THE ABOVE-NAMED DEFENDANTS:
`
`Index No. _____________
`
`Date Filed: May 9, 2019
`
`SUMMONS
`
`YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy
`of your answer, or, if the complaint is not served with this summons, to serve a notice of
`appearance, on Plaintiff’s Attorney within twenty (20) days after the service of this summons,
`exclusive of the day of service (or within thirty (30) days after the service is complete if this
`summons is not personally delivered to you within the State of New York); and in case of your
`failure to answer or appear, judgment will be taken against you by default for the relief demanded
`in the notice set forth below and in the complaint.
`
`Plaintiff designates Kings County as the venue for trial. The basis for venue is that defendants
`reside in Kings County and/or their principal place of business is located in Kings County.
`
`Dated: Cedarhurst, New York
`May 9, 2019
`
`JACOBOWITZ NEWMAN TVERSKY LLP
`Attorneys for Plaintiff
`
`By:
`
`/s Nathan Cohen
`Evan Newman
`Nathan Cohen
`377 Pearsall Avenue, Suite C
`Cedarhurst, New York, 11516
`Tel: (212) 612-1110
`Fax: (212) 671-1883
`Email: enewman@jntllp.com
`ncohen@jntllp.com
`
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`INDEX NO. 510382/2019
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`RECEIVED NYSCEF: 05/09/2019
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`----------------------------------------------------------------------x
`AIRS CAPITAL FUNDING, LLC,
`
`Plaintiff,
`
`- against -
`
`GREEN NOTE CAPITAL PARTNERS INC.,
`GABRIEL MANN a/k/a GABE MANN and
`ISAAC KASSAB,
`
`Index No. _____________
`
`Date Filed: May 9, 2019
`
`VERIFIED COMPLAINT
`
`Defendants.
`----------------------------------------------------------------------x
`
`Plaintiff AIRS CAPITAL FUNDING, LLC, by and through its attorneys Jacobowitz
`
`Newman Tversky LLP, for its Verified Complaint against defendants GREEN NOTE CAPITAL
`
`PARTNERS INC., GABRIEL MANN a/k/a GABE MANN and ISAAC KASSAB (collectively,
`
`the “Defendants”) alleges as follows:
`
`PARTIES
`
`1.
`
`Plaintiff Airs Capital Funding, LLC (“Plaintiff” or “ACF”) is a New Jersey
`
`Limited Liability Company, having an address at 315 12th Street #12, Palisades Park, New
`
`Jersey 07650.
`
`2.
`
`Upon information and belief, Defendant Green Note Capital Partners Inc. (“Green
`
`Note”) is a Delaware Corporation having a principal place of business at 1202 Avenue U,
`
`Brooklyn, NY 11229-4107.
`
`3.
`
`Upon information and belief, Defendant Gabriel Mann a/k/a Gabe Mann
`
`(“Mann”) is an individual residing in Brooklyn, New York and the owner and principal of Green
`
`Note.
`
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`2.
`
`Upon information and belief, Defendant Isaac Kassab (“Kassab”) is an individual
`
`residing at 2161 Ocean Parkway, Brooklyn, New York 11223 and a principal of Green Note.
`
`FACTS COMMON TO ALL CLAIMS FOR RELIEF
`
`3.
`
`Defendant Green Note is a merchant cash advance funder (“MCA Funder”), in the
`
`business of purchasing accounts receivable from merchants, who are often referred to Defendant
`
`by independent sales organizations (“ISOs”) such as Plaintiff.
`
`4.
`
`Upon receiving a referral from an ISO, Green Note may enter into an agreement
`
`directly with the merchant for the purchase of its future receivables. Alternatively, Green Note
`
`may refer the merchant to another MCA Funder who will then contract with the merchant for
`
`purchase of its future receivables.
`
`5.
`
`On or about November 1, 2018, Plaintiff and Green Note entered into an
`
`agreement (the “ISO Agreement”) whereby Green Note agreed to compensate Plaintiff for each
`
`merchant it referred to Green Note that, as a result of Plaintiff’s referral, entered into an
`
`agreement for the purchase and sale of future receipts.
`
`6.
`
`ACF subsequently referred a business named Bella Fresh Phoenix LLC
`
`(hereinafter, the “Merchant”) to Green Note.
`
`7.
`
`Green Note, in turn, referred the Merchant to another MCA Funder, Ace Funding
`
`Source, LLC and related companies Smart Business and Fast Business Financial, LLC
`
`(collectively referred to as the “AFS Companies”).
`
`8.
`
`In exchange for the initial referral of the Merchant by ACF, Green Note promised
`
`that, upon due execution of an agreement between the Merchant and any one of the AFS
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`Companies, Green Note would pay ACF a commission equal to 7 percent of the amount funded
`
`to the Merchant under such agreement.
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`9.
`
`In an e-mail sent on November 2, 2018, Gabe Mann confirmed Green Note’s
`
`promise to pay to ACF a commission equal to 7 percent of the funded amount.
`
`10.
`
`In reliance upon the ISO Agreement and the express promises made by Green
`
`Note and its principals, Plaintiff continued to facilitate an agreement to fund the Merchant by,
`
`among other things, obtaining financial and other information from the Merchant and providing
`
`such information to Green Note and the AFS Companies.
`
`11.
`
`Upon information and belief, the Merchant never had any direct communications
`
`with Green Note.
`
`12.
`
`Upon information and belief, the Merchant never had any direct communications
`
`with the AFS Companies.
`
`13.
`
`Upon information and belief, the Merchant never provided any documents or
`
`other information directly to Green Note.
`
`14.
`
`Upon information and belief, the Merchant never provided any documents or
`
`other information directly to the AFS Companies.
`
`15.
`
`On November 5, 2018, based on ACF’s referral and the information provided by
`
`the Merchant, through Plaintiff, to Green Note and the AFS Companies, the Merchant entered
`
`into an agreement with Smart Business for the purchase and sale of future receipts (the “MCA
`
`Agreement”).
`
`16.
`
`Plaintiff facilitated the execution of the MCA Agreement by, among other things,
`
`transmitting the MCA Agreement to the Merchant for signature and, subsequently, transmitting
`
`the executed MCA Agreement to Smart Business.
`
`17.
`
`Pursuant to the MCA Agreement, Smart Business acquired the right to receive
`
`$1,399,000.00 of the Merchant’s future accounts receivable (the “Purchased Amount”) for a
`
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`purchase price of $1,000,000 (the “Funded Amount”). The MCA Agreement provided for daily
`
`payments of $11,658.00 (the “Daily Amount”) to be debited by Smart Business from the
`
`Merchant’s bank account. Said Daily Amount represented an estimated 12 percent of the
`
`Merchant’s daily receipts.
`
`18.
`
`Upon information and belief, upon execution of the Merchant Agreement and
`
`payment by Smart Business to the Merchant of the $1,000,000.00 Funded Amount (net of a
`
`$120,000.00 origination fee), the AFS Companies promptly paid to Green Note a commission in
`
`the amount of $90,000.00.
`
`19.
`
`Pursuant to the terms of the agreement between ACF and Green Note and the
`
`express promises of Green Note’s principals Mann and Kassab, upon the Merchant’s receipt of
`
`the Funded Amount pursuant to the duly executed MCA Agreement, Green Note became
`
`obligated to pay to ACF a commission in the amount of $70,000.00, i.e., 7 percent of the Funded
`
`Amount.
`
`20.
`
`On February 14, 2019, by e-mail from Plaintiff’s principal George Milas to
`
`Kassab, Plaintiff demanded payment of its $70,000.00 commission (the “February Demand”).
`
`21.
`
`In response to the February Demand, Kassab falsely claimed that Green Note only
`
`agreed to pay the $70,000.00 commission to Plaintiff “after the loan is complete”; i.e., once
`
`Smart Business received from the Merchant the full Purchased Amount under the MCA
`
`Agreement. Nonetheless, Kassab acknowledged that in no event later than the date upon which
`
`Smart Business would receive the full Purchased Amount under the MCA Agreement, Green
`
`Note had agreed to pay the $70,000.00 commission to Plaintiff.
`
`22.
`
`On or about March 20, 2019, the Merchant paid to Smart Business the full
`
`outstanding balance of the Purchased Amount and Smart Business, through Plaintiff, provided
`
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`the Merchant with a zero-balance letter confirming that Smart Business had received from the
`
`Merchant the full Purchased Amount under the MCA Agreement.
`
`23.
`
`The funds that the Merchant used to pay the outstanding balance of the Purchased
`
`Amount were obtained through an equipment loan that had been facilitated by Plaintiff on the
`
`Merchant’s behalf.
`
`24.
`
`On or about March 22, 2019, Plaintiff provided Green Note with a copy of the
`
`zero-balance letter and again requested payment of the $70,000.00 commission owed to Plaintiff
`
`as a result of Plaintiff’s referral of the Merchant to Green Note.
`
`25.
`
`Notwithstanding Green Note’s prior agreement and its express promises to pay
`
`Plaintiff the $70,000.00 commission, Green Note ignored Plaintiff’s requests and, to date, has
`
`not paid any portion of the commission owed to Plaintiff.
`
`FIRST CAUSE OF ACTION
`(Breach of Contract Against Defendant Green Note)
`
`26.
`
`Plaintiff repeats and realleges each of the allegations set forth in each preceding
`
`paragraph, as if fully set forth herein.
`
`27.
`
`As set forth above, Plaintiff and Green Note entered into a valid and binding ISO
`
`Agreement, whereby, inter alia, Green Note was required to compensate Plaintiff for any
`
`merchant it referred to Green Note that, as a result of such referral, entered into an agreement for
`
`the purchase and sale of future receipts.
`
`28.
`
`Plaintiff referred the Merchant to Green Note and, as a result of such referral, the
`
`Merchant entered into the MCA Agreement with Smart Business.
`
`29.
`
`Green Note agreed and promised to pay Plaintiff a $70,000.00 commission in
`
`consideration for Plaintiff’s referral of the Merchant to Plaintiff.
`
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`30.
`
`Upon execution of the MCA Agreement and receipt by Merchant of the Funded
`
`Amount, Green Note received a $90,000.00 commission from Smart Business.
`
`31.
`
`Pursuant to the agreement between Plaintiff and Green Note, upon execution of
`
`the MCA Agreement and receipt by Merchant of the Funded Amount, Green Note became
`
`obligated to pay Plaintiff its $70,000.00 commission.
`
`32.
`
`33.
`
`Green Note has not paid Plaintiff any portion of the $70,000.00 commission.
`
`Plaintiff, on the other hand, satisfied all its obligations pursuant to the agreement
`
`with Green Note.
`
`34.
`
`By breaching its contract with Plaintiff and failing to pay the agreed upon
`
`commission, Green Note caused Plaintiff damages in an amount to be determined at trial, but not
`
`less than $70,000.00 plus prejudgment interest at the maximum legal rate, and attorneys’ fees and
`
`costs.
`
`SECOND CAUSE OF ACTION
` (Unjust Enrichment Against Green Note)
`
`35.
`
`Plaintiff repeats and realleges each of the allegations set forth in each preceding
`
`paragraph, as if fully set forth herein.
`
`36.
`
`Plaintiff referred the Merchant to Green Note and facilitated an agreement
`
`between the Merchant and Smart Business.
`
`37.
`
`As a result of Plaintiff’s referral and the provision of financial and other
`
`information to Green Note and Smart Business, Green Note received a commission from Smart
`
`Business in the amount of $90,0000.00.
`
`38.
`
`Green Note has unjustly refused to pay to Plaintiff any portion of the $90,000.00
`
`commission that Green Note received from Smart Business.
`
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`39.
`
`Plaintiff is therefore entitled to damages in an amount to be determined at trial,
`
`but not less than $70,000.00 plus prejudgment interest at the maximum legal rate, and attorneys’
`
`fees and costs.
`
`THIRD CAUSE OF ACTION
`(Fraud Against All Defendants)
`
`40.
`
`Plaintiff repeats and realleges each of the allegations set forth in each preceding
`
`paragraph, as if fully set forth herein.
`
`41.
`
`Defendants promised and represented that Green Note would pay commissions to
`
`Plaintiff in exchange for Plaintiff’s referral of merchants to Green Note.
`
`42.
`
`Defendants specifically promised that Green Note would pay a $70,000.00
`
`commission to Plaintiff for its referral of the Merchant to Green Note.
`
`43. When Defendants made such promises, they had no intention of ever paying
`
`Plaintiff the $70,000.00 commission.
`
`44.
`
`Defendants
`
`intended for Plaintiff
`
`to rely on
`
`their false promises and
`
`misrepresentations and to induce Plaintiff to enter into the agreement with Green Note to provide
`
`referral services.
`
`45.
`
`But for the Defendants’ false promises and misrepresentations, Plaintiff would not
`
`have entered into any agreements with Green Note and would not have provided any referral
`
`services to Green Note.
`
`46.
`
`Plaintiff justifiably relied on Defendants’ false promises and misrepresentations to
`
`perform referral services for Green Note and incurred out of pocket costs in connection with such
`
`referral services.
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`47.
`
`By the foregoing actions, Defendants have caused Plaintiff damages in an amount
`
`to be determined at trial, but estimated to be no less than $70,000.00, plus prejudgment interest at
`
`the maximum legal rate, attorney's fees, and costs.
`
`WHEREFORE, Plaintiff demands judgment against the Defendants, jointly and
`
`severally, as follows:
`
`A.
`
`Awarding Plaintiff compensatory damages, the precise amount to be determined
`
`at trial, but no less than $70,000.00, plus prejudgment interest at the maximum
`
`legal rate.
`
`B.
`
`C.
`
`Awarding Plaintiff its attorneys’ fees, costs and disbursements of this action; and
`
`Granting such other and further relief as to Plaintiff as the Court deems just and
`
`proper.
`
`Dated: Cedarhurst, New York
`May 9, 2019
`
`JACOBOWITZ NEWMAN TVERSKY LLP
`Attorneys for Plaintiff
`
`By:
`
`/s Nathan Cohen
`Nathan Cohen
`Evan Newman
`377 Pearsall Avenue, Suite C
`Cedarhurst, New York, 11516
`Tel: (212) 612-1110
`Email: ncohen@jntllp.com
`
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`INDEX NO. 510382/2019
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`RECEIVED NYSCEF: 05/09/2019
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`VERIFICATION
`
`STATE
`
`OF NEW JERSEY
`
`COUNTY OFbr
`
`:
`
`GEORGE
`
`MILAS,
`
`being
`
`duly
`
`sworn,
`
`deposes
`
`and
`
`says:
`
`1.
`
`captioned
`
`matter
`
`I am the
`of
`President
`I am fully
`as such
`and
`
`Airs
`familiar
`
`Capital
`with
`
`Funding,
`the
`facts
`
`plaintiff
`the
`LLC,
`circumstances
`and
`
`in
`this
`
`above
`the
`action.
`
`of
`
`2.
`
`I have
`
`read
`
`the
`
`foregoing
`
`complaint
`
`and
`
`know
`
`the
`
`contents
`
`thereof.
`
`except
`
`as
`alleged
`
`to be
`
`matters
`those
`to
`information
`upon
`
`alleged
`and
`
`upon
`
`belief,
`
`I
`
`GEORGE
`
`MILAS
`
`3.
`
`same
`The
`and
`belief.
`them to be true.
`
`information
`believe
`
`are
`As
`
`to
`
`true
`those
`
`to my
`matters
`
`knowledge,
`stated
`
`Affrmed
`9
`
`day
`
`to before
`of KG
`
`\/
`
`me this
`, 2019
`
`Notary
`
`Public
`
`RARINAFRANCO
`ID # 60048284
`NOTARY
`PUBLIC
`STATE OF NEW JERSEY
`Expires Oct.24,2021
`M Coghmission
`
`10
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