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FILED: KINGS COUNTY CLERK 08/24/2020 01:04 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 515576/2020
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`RECEIVED NYSCEF: 08/24/2020
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
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`-----------------------------------------------------------------------X
`BENJAMIN KEST,
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`Plaintiff,
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`SUMMONS
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`Index No.:
`Date Index No. Purchased:
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`-vs-
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`KMR INC., KMR WERNER BROTHERS,
`KMR GROUP, SHIMMY WERNER,
`BORUCH WERNER, and John Does 1-10,
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`Defendants,
`-----------------------------------------------------------------------X
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`TO THE ABOVE-NAMED DEFENDANTS:
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`PLEASE TAKE NOTICE THAT YOU ARE HEREBY SUMMONED and
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`required to serve upon Plaintiff’s attorney an answer to the complaint in this action within
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`twenty days after the service of this summons, exclusive of the day of service, or within
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`thirty days after service is complete if this summons is not personally delivered to you
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`within the State of New York.
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`YOU ARE FURTHER NOTIFIED should you fail to answer a judgment will be
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`entered against you by default for the relief demanded in the complaint.
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`Dated: Fresh Meadows, New York
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`August 17, 2020
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`Defendant’s Address:
`KMR INC.; KMR WERNER BROTHERS; KMR GROUP
`403 Crown Street, Brooklyn, NY 11225
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` /Jonathan E. Neuman/
`JONATHAN E. NEUMAN, ESQ.
`Attorney for Plaintiff
`176-25 Union Turnpike, Suite 230
`Fresh Meadows, New York 11366
`(347) 450-6710
`(718) 228-3689 facsimile
`jnesq@jenesqlaw.com
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`1 of 12
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`

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`FILED: KINGS COUNTY CLERK 08/24/2020 01:04 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 515576/2020
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`RECEIVED NYSCEF: 08/24/2020
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`SHIMMY WERNER; BORUCH WERNER
`c/o KMR INC., 403 Crown Street, Brooklyn, NY 11225
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`VENUE:
`Plaintiff designates Kings County as the place of trial. The basis of the
`venue designated is the address of Defendants.
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`2 of 12
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`

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`FILED: KINGS COUNTY CLERK 08/24/2020 01:04 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 515576/2020
`
`RECEIVED NYSCEF: 08/24/2020
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
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`
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`-----------------------------------------------------------------------X
`BENJAMIN KEST,
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`-vs-
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`KMR INC., KMR WERNER BROTHERS,
`KMR GROUP, SHIMMY WERNER,
`BORUCH WERNER, and John Does 1-10,
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`Plaintiff,
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`VERIFIED
`COMPLAINT
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`Index No.
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`JURY TRIAL DEMANDED
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`Defendants,
`-----------------------------------------------------------------------X
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`
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`Plaintiff, BENJAMIN KEST, by his attorney, JONATHAN E. NEUMAN, ESQ.,
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`as and for his Verified Complaint, alleges as follows:
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`1. Plaintiff BENJAMIN KEST (“BENJAMIN”) is an individual with an address at
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`317 W 92 St., New York, NY 10025.
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`2. Upon information and belief, Defendant KMR INC. (“KMR”) is an inactive
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`domestic corporation, with an address at 403 Crown Street, Brooklyn, NY 11225.
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`3. According to the NYS Department of State Division of Corporations Entity
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`Information database, KMR has been inactive since January 26, 2011, and has not been
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`authorized to do business in the State of New York since that time.
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`4. Upon information and belief, KMR has been doing business within the State of
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`New York without authorization since January 26, 2011.
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`5. Upon information and belief, KMR does business under various names, such as
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`Defendant KMR WERNER BROTHERS and Defendant KMR GROUP, both with an
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`address of 403 Crown Street, Brooklyn, NY 11225, however, neither of these names
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`appear to be registered as entities authorized to do busines within the State of New York.
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`Page 1 of 10
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`3 of 12
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`FILED: KINGS COUNTY CLERK 08/24/2020 01:04 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 515576/2020
`
`RECEIVED NYSCEF: 08/24/2020
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`6. Upon information and belief, Defendants SHIMMY WERNER and BORUCH
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`WERNER are the two owners and principals of the various KMR entities.
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`
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`FACTUAL BACKGROUND
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`7. Defendants are a group that run vacation programs catered to the Orthodox Jewish
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`community.
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`8. One of the programs that Defendants run is an annual Passover program.
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`9. In February 2020, BENJAMIN was in contact with Defendant SHIMMY
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`WERNER regarding KMR’s 2020 Passover program.
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`10. On or about February 10, 2020, BENJAMIN was quoted a price by Defendant
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`KMR WERNER BROTHERS for the 2020 Passover program for BENJAMIN and his
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`various family members.
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`11. On or about February 24, 2020, BENJAMIN paid a $60,000 deposit made out to
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`“KMR” for the program.
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`12. Meanwhile, however, the following timeline of events was occurring:
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`a. On January 9, 2020, the World Health Organization (“WHO”) had
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`announced a mysterious coronavirus-related pneumonia in Wuhan, China;
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`b. On January 20, the U.S. Centers for Disease Control and Prevention
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`(“CDC”) announced that 3 U.S. airports (including JFK Airport in New
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`York) would begin screening for coronavirus;
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`c. On January 21, the CDC confirmed the first U.S. coronavirus case in the
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`State of Washington;
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`Page 2 of 10
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`4 of 12
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`FILED: KINGS COUNTY CLERK 08/24/2020 01:04 PM
`NYSCEF DOC. NO. 1
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`INDEX NO. 515576/2020
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`RECEIVED NYSCEF: 08/24/2020
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`d. On January 23, China placed the entire city of Wuhan and its population
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`of 11 million people under quarantine;
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`e. On January 31, the WHO issued a global health emergency;
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`f. On February 2, the United States began restricting global air travel;
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`g. On February 3, the United States declared a public health emergency;
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`h. On February 25, the CDC announced that COVID-19 was headed toward
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`global pandemic status.
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`13. Seeing the writing on the wall, shortly thereafter BENJAMIN contacted
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`Defendant SHIMMY WERNER and stated that he wanted to cancel his reservation in
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`light of the impending pandemic.
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`14. This was only a short while after BENJAMIN had paid the deposit and at the time
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`there were still 5-6 weeks before the scheduled start of the program.
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`15. SHIMMY WERNER agreed.
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`16. The pandemic in fact was realized, and the Pesach program never took place, with
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`Defendants cancelling the program a few weeks later.
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`17. Despite the fact that SHIMMY WERNER agreed that BENJAMIN could cancel,
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`and moreover that in fact no program took place, Defendants have refused to return
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`BENJAMIN’s money.
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`18. After some communication regarding the return of the money, WERNER then cut
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`off communication with BENJAMIN.
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`19. However, WERNER recently contacted BENJAMIN stating that he needed more
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`time to come up with the money.
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`Page 3 of 10
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`5 of 12
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`FILED: KINGS COUNTY CLERK 08/24/2020 01:04 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 515576/2020
`
`RECEIVED NYSCEF: 08/24/2020
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`20. This means that despite the fact that Defendants were supposed to return the
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`money to BENJAMIN, and until they actually did return the money they were acting as
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`fiduciaries in holding onto BENJAMIN’s deposit, Defendants apparently used the money
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`for their own purposes.
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`21. Defendants have refused to provide a breakdown of what happened to
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`BENJAMIN’s money.
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`AS AND FOR A FIRST CAUSE OF ACTION: CONVERSION
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`22. Plaintiff repeats and realleges each and every allegation contained in paragraphs
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`“1” through “21” inclusive, as if more fully set forth herein at length.
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`23. Defendants have fraudulently stolen and retained $60,000 of Plaintiff’s money.
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`24. Defendants have refused to return Plaintiff’s money despite demand.
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`25. Defendants have converted this money and diverted it to their own accounts and
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`purposes to the exclusion of Plaintiff.
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`26. Defendants had full intent in their actions.
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`27. Defendants have purposely dealt with Plaintiff’s property in a manner that was
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`inconsistent with Plaintiff’s rights.
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`28. Defendants have interfered with Plaintiff’s money to the exclusion of Plaintiff’s
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`rights.
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`29. Accordingly, Plaintiff has been damaged in the amount of $60,000.
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`30. Defendants’ actions have been deliberate, with knowledge of Plaintiff’s rights,
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`and with intent to interfere with those rights.
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`31. Defendants’ actions have been wanton, willful, and malicious.
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`Page 4 of 10
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`6 of 12
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`FILED: KINGS COUNTY CLERK 08/24/2020 01:04 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 515576/2020
`
`RECEIVED NYSCEF: 08/24/2020
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`32. Accordingly, punitive damages should therefore be awarded against Defendants
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`in addition to compensatory damages, in an amount no less than three times Plaintiff’s
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`compensatory damages.
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`AS AND FOR A SECOND CAUSE OF ACTION: BREACH OF CONTRACT
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`33. Plaintiff repeats and realleges each and every allegation contained in paragraphs
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`“1” through “32” inclusive, as if more fully set forth herein at length.
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`34. Defendants agreed to provide a Passover program for BENJAMIN and his family.
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`35. Plaintiff paid $60,000 toward that agreement.
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`36. Defendants, however, failed to fulfill their contractual obligation, and did not
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`provide the Passover program.
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`37. Additionally, Defendants agreed to return Plaintiff’s $60,000.
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`38. Defendants, however, failed to fulfill their contractual obligation, and did not
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`return Plaintiff’s $60,000, in whole or in part.
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`39. A valid and binding agreement existed between Plaintiff and Defendants.
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`40. Defendants failed to keep their commitments under the agreement, and failed to
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`provide a Passover program to Plaintiff.
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`41. Defendants also failed to keep their commitments and return Plaintiff’s $60,000.
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`42. Defendants thereby materially breached their agreements with Plaintiff.
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`43. As a result of Defendants’ breach of contract, Plaintiff has suffered damages in
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`the amount of $60,000.
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`44. Accordingly, Plaintiff is entitled to damages in the amount of $60,000, together
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`with prejudgment interest at 9% thereon.
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`Page 5 of 10
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`7 of 12
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`FILED: KINGS COUNTY CLERK 08/24/2020 01:04 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 515576/2020
`
`RECEIVED NYSCEF: 08/24/2020
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`
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`AS AND FOR A THIRD CAUSE OF ACTION:
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`VIOLATION OF N.Y. G.B.L. §349
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`45. Plaintiff repeats and realleges each and every allegation contained in paragraphs
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`“1” through “44” inclusive, as if more fully set forth herein at length.
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`46. Defendants advertised to and solicited consumers like BENJAMIN to participate
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`in a 2020 Passover program.
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`47. No such program ever took place.
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`48. Despite the knowledge that no program was likely to take place in light of the
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`growing pandemic, Defendants continued to solicit consumers like BENJAMIN, and
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`continued to take their money.
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`49. Upon information and belief, Defendants took such money with no intention of
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`returning the money despite the likelihood that no program was going to take place.
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`50. Despite Defendants’ failure to provide a Passover program, Defendants have
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`failed to return Plaintiff’s money, or any portion thereof.
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`51. This despite the fact that Defendants already knew 5-6 weeks prior to the start of
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`the program that BENJAMIN did not want to attend, and Defendants had agreed to return
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`BENJAMIN’s $60,000.
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`52. Accordingly, Defendants’ acts in the conduct of their business have been unfair,
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`deceptive, and materially misleading.
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`53. As a result of Defendants’ deceptive acts, Plaintiff has been injured in the amount
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`of $60,000.
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`Page 6 of 10
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`8 of 12
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`FILED: KINGS COUNTY CLERK 08/24/2020 01:04 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 515576/2020
`
`RECEIVED NYSCEF: 08/24/2020
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`54. Pursuant to statute, Plaintiff is also entitled to punitive damages and attorney’s
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`fees.
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`AS AND FOR A FOURTH CAUSE OF ACTION:
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`BREACH OF FIDUCIARY DUTY
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`55. Plaintiff repeats and realleges each and every allegation contained in paragraphs
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`“1” through “54” inclusive, as if more fully set forth herein at length.
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`56. On or about February 24, 2020, Plaintiff provided Defendants with a $60,000
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`deposit, which was supposed to be held for Plaintiff’s account.
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`57. Shortly thereafter, Defendants agreed that BENJAMIN could cancel his
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`reservation, and furthermore, Defendants thereafter cancelled the program themselves.
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`58. Defendants, however, failed to immediately return the money to Plaintiff.
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`59. Accordingly, at that point Defendants became akin to escrow holders holding onto
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`the money for the benefit of Plaintiff.
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`60. As a result, Defendants owed Plaintiff fiduciary duties, including but not limited
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`to holding the money for the benefit of Plaintiff, and not comingling the money or
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`converting it for their own uses.
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`61. However, it is apparent that Defendants breached these duties, failed to hold the
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`money in trust for Plaintiff, and comingled and converted the funds for their own
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`purposes.
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`62. These actions and omissions breached Defendants’ fiduciary duties toward
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`Plaintiff.
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`Page 7 of 10
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`9 of 12
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`FILED: KINGS COUNTY CLERK 08/24/2020 01:04 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 515576/2020
`
`RECEIVED NYSCEF: 08/24/2020
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`63. Defendants’ actions in breach of their fiduciary duties has caused BENJAMIN
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`damages in the amount of $60,000.
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`64. Defendants’ actions were deliberate, with knowledge of Plaintiff’s rights, and
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`with intent to interfere with those rights.
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`65. Defendants’ actions were wanton, willful, and malicious.
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`66. Accordingly, punitive damages should therefore be awarded against Defendants
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`in addition to compensatory damages, in an amount no less than three times Plaintiff’s
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`compensatory damages.
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`AS AND FOR A FIFTH CAUSE OF ACTION:
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`ACCOUNTING
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`67. Plaintiff repeats and realleges each and every allegation contained in paragraphs
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`“1” through “66” inclusive, as if more fully set forth herein at length.
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`68. BENJAMIN in good faith entrusted Defendants with $60,000.
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`69. Despite the fact that no Passover program took place, Defendants have refused to
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`return BENJAMIN’s money.
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`70. Defendants have refused to provide a full and truthful accounting of what
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`happened to BENJAMIN’s money.
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`71. BENJAMIN’s $60,000 was handled exclusively by Defendants.
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`72. Accordingly, a burden of having to account for such proceeds was placed upon
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`Defendants.
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`73. Defendants have refused to account for BENJAMIN’s $60,000.
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`Page 8 of 10
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`10 of 12
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`FILED: KINGS COUNTY CLERK 08/24/2020 01:04 PM
`NYSCEF DOC. NO. 1
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`INDEX NO. 515576/2020
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`RECEIVED NYSCEF: 08/24/2020
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`74. Upon information and belief, as described above, Defendants have converted
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`these proceeds for their own use.
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`75. BENJAMIN has no adequate legal remedy to determine how much, where, and in
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`what amounts, if any, his proceeds were distributed.
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`76. Accordingly, Plaintiff is entitled to an accounting by Defendants regarding the
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`distribution of all sums collected from or rightfully belonging to Plaintiff.
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`WHEREFORE, Plaintiff demands that a judgment be entered against Defendants:
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`in the amount of $60,000 in compensatory damages, and an amount no less than $180,000
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`in punitive damages, with pre- and post-judgment interest thereon at the statutory rate, and
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`that Defendants be ordered to account for the disbursement, if any, of Plaintiff’s money,
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`together with attorneys’ fees, the costs and disbursements of the within action, and such
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`other, further and different relief which this Court deems just and proper.
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`Dated: Fresh Meadows, New York
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`August 6, 2020
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` /Jonathan E. Neuman/
`JONATHAN E. NEUMAN, ESQ.
`Attorney for Plaintiff
`176-25 Union Turnpike, Suite 230
`Fresh Meadows, New York 11366
`(347) 450-6710
`(718) 228-3689 facsimile
`jnesq@jenesqlaw.com
`
`
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`Page 9 of 10
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`11 of 12
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`

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`FILED: KINGS COUNTY CLERK 08/24/2020 01:04 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 515576/2020
`
`RECEIVED NYSCEF: 08/24/2020
`
`VERIFICATION
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`STATE OF NEW YORK
`
`COUNTY OF NEW YORK
`
`)
`) ss.:
`)
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`BENJAMIN KEST, being duly sworn, deposes and says:
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`I am the Plaintiff in the above-entitled action; that I have read the foregoing
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`COMPLAINT and know the contents thereof; that the same is true to my knowledge, except as
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`to the matters therein stated to be alleged upon information and belief, and that as to those
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`matters I believe them to be true.
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`BENJAMIN KEST
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`Sworn to before me on the
`17th
`____ day of August, 2020
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`Notary Public
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`ATTORNEY CERTIFICATION
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`I, JONATHAN E. NEUMAN, ESQ., an attorney, hereby certify that to the best of my
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`knowledge, information and belief, formed after an inquiry reasonable under the circumstances,
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`the presentation of the within papers or the contentions therein are not frivolous within the
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`meaning of 22 NYCRR § 130.1.1(c).
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`Dated: Fresh Meadows, NY
`17
`August ___, 2020
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` /Jonathan E. Neuman/
`JONATHAN E. NEUMAN, ESQ.
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`Page 10 of 10
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`12 of 12
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