FILED: NEW YORK COUNTY CLERK 04/19/2017 12:29 PM
`FILED: NEW YORK COUNTY CLERK 04.112017 12:29 PM
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`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
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`INDEX NO. 650686/2017
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`RnCnIVnD VYSCEF: 04/19/2017
`RECEIVED NYSCEF: 04/19/2017
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`__________________________________________ X
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`TIMES SQUARE SOUVENIRS,
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`INC.,
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`a New York Corporation,
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`Index No. 650686/2017
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`Plaintiff,
`
`v.
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`AMENDED
`VERIFIED COMPLAINT
`
`BIG APPLE ENTERTAINMENT PARTNERS, LLC,
`d/b/a RIPLEY’S BELIEVE IT OR NOT,
`a Delaware Limited Liability Company,
`
`Defendant.
`—————————————————————————————————————————— x
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`Plaintiff,
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`Times
`
`Square Souvenirs,
`
`Inc ,
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`complains
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`of
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`the
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`Defendant, Big Apple Entertainment Partners, LLC by its attorneys, The
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`Dweck Law Firm, and respectfully alleges to this Court as follows:
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`INTRODUCTION
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`1.
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`This action arises out of the wrongful termination of a written
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`licensing agreement between Big Apple Entertainment Partners, LLC (“Big
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`Apple” or “Licensor") and Times Square Souvenirs,
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`Inc.
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`(“Times Square"
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`or “Licensee"). After the parties executed.a License Agreement for Times
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`Square to occupy a portion of the ground floor cf the Ripley's Believe
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`Or Not museum at a building located at 234 West 42“ Street in Manhattan
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`(the “Building"), where it had a licensed concession and authority to
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`sell retail gifts and souvenirs, and after Times Square expended, and
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`incurred. obligations
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`for extensive sums of money for construction,
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`installation, outfitting and merchandising the license concession area,
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`without notice or just cause,
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`the Defendant arbitrarily and summarily
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`terminated the written License Agreement and ordered and compelled the
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`Plaintiff after four days of occupancy to shut down and discontinue its
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`FILED: NEW YORK COUNTY CLERK 04/19/2017 12:29 PM
`FILED: NEW YORK COUNTY CLERK 04.112017 12:29 PM
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`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
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`INDEX NO. 650686/2017
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`RnCnIVnD NYSCEF: 04/19/2017
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`operation.
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`and.
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`to vacate the concession. area.
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`Despite the unlawful
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`termination of the License Agreement by the Defendant,
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`the Defendant has
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`unlawfully and without
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`just cause exhibited the licensed area of
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`the
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`subject premises to third parties in an attempt
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`to find a subsequent
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`occupant/licensee.
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`The Defendant has failed and refused to return the
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`Plaintiff's security deposit, operating fee, monies,
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`installations and
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`inventory, or to reimburse the Plaintiff for its projected lost profits
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`as sustained by the Plaintiff, or to return or reimburse the Plaintiff
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`for any of the expenditures incurred by it in preparing the location for
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`retail use.
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`THE PARTIES
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`2.
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`The Plaintiff, Times Square Souvenirs,
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`Inc.,
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`is a domestic
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`corporation with offices within the County, City and State of New York.
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`3.
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`Upon
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`information
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`and belief,
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`the Defendant,
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`Big Apple
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`Entertainment Partners, LLC,
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`is a Delaware Limited Liability Company
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`doing business under the firm name and style of Ripley’s Believe It Or
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`Not, with its place of business within the County, City and State of New
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`York at 234 West 42nd Street in Manhattan.
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`JURISDICTION AND VENUE
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`4.
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`Venue is proper because all of the events, omissions and defaults
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`giving rise to the claims asserted herein coaurred within the State of
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`New York and the parties have offices with the County of New York.
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`FILED: NEW YORK COUNTY CLERK 04/19/2017 12:29 PM
`FILED: NEW YORK COUNTY CLERK 04m2017 12:29 PM
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`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
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`INDEX NO. 650686/2017
`INDEX NO~ 650686/2017
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`RnCnIVnD VYSCEF: 04/19/2017
`RECEIVED NYSCEF: 04/19/2017
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`FACTUAL BACKGROUND
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`5.
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`The Plaintiff, Times Square Souvenirs is engaged in a highly
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`competitive retail
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`souvenir
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`and gift business whose principals are
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`seasoned experts with extensive experience in the operation of retail
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`souvenir facilities at multiple locations wherein Plaintiff's principals
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`have marketed and sold a variety of retail gifts and souvenirs.
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`6.
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`Times Square and its principals are well known and recognized
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`within the retail gift and souvenir industry as seasoned, experienced
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`and honorable business persons with an excellent
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`reputation for
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`the
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`operation and maintenance of successful retail locations for the sale
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`of gifts and souvenirs.
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`7.
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`By a writing dated and entered into as of the 24fllday of October
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`2016 (the “License Agreement”), Times Square, as Licensee, entered into
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`a written License Agreement with the Defendant Big Apple Entertainment
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`Partners, LLC, as Licensor, pursuant
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`to which the Defendant Big Apple
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`agreed to grant Times Square a license for the use of a certain portion
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`of the ground floor of the Building, where the Defendant Licensor was
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`and is the lessee and operator of Ripley’s Believe It Or Not museum
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`pursuant to a franchise agreement dated March 24, 2006 between Ripley's
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`Attractions, Inc., as Franchisor and Big Apple as Franchisee.
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`8.
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`The License Agreement between the Plaintiff and Defendant was
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`effective as of November 1, 2016 and was
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`to continue for a term of
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`5
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`years,
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`to and including October 31, 2021.
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`9.
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`The License Agreement provided for a non—exclusive license for
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`the Plaintiff to use and occupy the concession area in the Building for
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`the permitted purpose of selling retail gifts and souvenirs.
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`FILED: NEW YORK COUNTY CLERK 04/19/2017 12:29 PM
`FILED: NEW YORK COUNTY CLERK 04m2017 12:29 PM
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`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
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`INDEX NO. 650686/2017
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`RnCnIVnD VYSCEF: 04/19/2017
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`10.
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`The relevant provisions of the License Agreement state:
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`a. non-exclusive
`“Licensor' hereby" grants to ILicensee
`license to use and occupy the Premises solely for the
`Permitted Purpose {the “Operating License”). Licensee
`shall use
`and occupy the premises
`solely for
`the
`permitted purpose and for no other purpose unless the
`parties amend or modify the permitted purpose and the
`writing signed by both parties. Licensee acknowledges
`Licensor has
`a separate agreement with a vendor
`for
`tourist marketing material and such vendor has a podium
`inside the entrance of the premises as shown on Exhibit
`C, attached hereto.”
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`11.
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`The License Agreement further provided that in consideration of
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`the Operating License, Licensee was
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`to pay to Licensor
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`a monthly
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`operating fee for the first year for occupancy of $18,000; for the second
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`year of $18,540; for the third year of $19,096; for the fourth year of
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`$19,669 and for the fifth year of $20,259, making a total aggregate
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`license fee of $1,150,768, plus additional fees of 2% of the annual gross
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`sales over $650,000 per calendar year based upon the gross sales of the
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`Licensee at the Building.
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`12.
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`In accordance with the provisions of the License Agreement,
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`the
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`Plaintiff tendered to the Defendant, which the Defendant accepted,
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`the
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`sum of $18,000, which represented the security deposit for its licensed
`occupancy,
`together with the sum of $16,900 for the purchase of
`the
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`Defendant's pre—existing inventory at the location.
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`13. After the execution of the License Agreement as aforedescribed,
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`the Plaintiff and its principals proceeded to engage the services of a
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`contractor and support entities to prepare and ready the premises for
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`commencement by the Plaintiff of business operations.
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`Included in the
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`undertakings by the Plaintiff was the purchase of inventory, preparation
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`of
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`renderings, purchase of
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`lighting,
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`store and display fixtures and
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`FILED: NEW YORK COUNTY CLERK 04/19/2017 12:29 PM
`FILED: NEW YORK COUNTY CLERK 04m2017 12:29 PM
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`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
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`INDEX NO. 650686/2017
`INDEX NO~ 650686/2017
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`RnCnIVnD VYSCEF: 04/19/2017
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`equipment, and all such related expenses attendant to the commencement
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`of a first Class retail gift and souvenir operation.
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`14.
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`At all
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`times hereinafter mentioned,
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`the Plaintiff
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`fully
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`performed all of its obligations under the License Agreement.
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`15.
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`The Plaintiff commenced its business operations on November 18,
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`2016, with a fully—finished, outfitted and completely and fully—stocked
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`inventory.
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`16.
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`On November 22, 2016, a representative of the Defendant stated
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`to a principal of the Plaintiff that the Plaintiff must immediately cease
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`its operations, and vacate the premises forthwith, with a statement that
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`“the order came from above.”
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`17.
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`Thereafter, representatives of the Defendant Big Apple met with
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`the representatives of
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`the Plaintiff, at which time the Plaintiff's
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`representatives observed that the premises vacated by the Plaintiff were
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`being exhibited to a prospective tenant.
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`18.
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`The Defendant’s
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`representative thereupon being in apparent
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`recognition of the culpability of the Big Apple for damages for wrongful
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`termination of
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`the License Agreement, offered to repurchase the pre—
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`existing Ripley’s inventory, which had been paid for by the Plaintiff,
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`with a request that the Plaintiff’s representatives present them with a
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`request for reimbursement of the damages sustained by the Plaintiff as
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`a result of the cancellation of the License Agreement by Big Apple.
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`19.
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`The Defendant Big Apple has breached the License Agreement by
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`terminating and cancelling the same without legal cause or justification
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`and such breach of the agreement is material.
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`FILED: NEW YORK COUNTY CLERK 04/19/2017 12:29 PM
`FILED: NEW YORK COUNTY CLERK 04.112017 12:29 PM
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`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
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`INDEX NO. 650686/2017
`INDEX N0~ 650686/2017
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`RnCnIVnD VYSCEF: 04/19/2017
`RECEIVED NYSCEF: 04/19/2017
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`20.
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`The Plaintiff has performed all of its obligations under the
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`License Agreement, which is a valid and binding contract.
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`21.
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`As a proximate result of the breach by the Defendant Big Apple,
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`the Plaintiff has suffered,
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`and will continue to suffer, general and
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`consequential damages in the sum of not less than $1,500,000,
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`together
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`with losses of compensation to the principals of the Plaintiff,
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`together
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`with reasonable attorney’s fees for the prosecution of this action.
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`AS AND FOR A SECOND CAUSE OF ACTION
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`(PROMISSORY ESTOPPEL)
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`22.
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`Plaintiff repeats and realleges each and every allegation of
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`Paragraphs of the Complaint numbered “1” through “21" inclusive with the
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`same force and effect as though more fully set forth at length herein.
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`23.
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`At all
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`times hereinafter mentioned, and both verbally and in
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`writing,
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`the Defendant acting through its general manager Brett Pidgeon,
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`stated to the Plaintiff,
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`that he had secured all approvals necessary for
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`the Plaintiff to proceed with performance of the License Agreement, and
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`that
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`among other
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`things
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`the Plaintiff
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`should
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`submit plans
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`for
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`construction, decorating and outfitting the premises licensed to it,
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`take possession of the Defendant’s left over merchandise and inventory
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`which it
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`sold to the Plaintiff
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`and open the licensed premises
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`for
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`business as soon as feasible.
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`24.
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`In total and complete reliance upon the statements made to the
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`Plaintiff by Bret Pidgeon as aforedescribed, and with full knowledge of
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`the Defendant,
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`the Plaintiff immediately began remodeling, outfitting
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`and retrofitting the Licensed Premises, engaged the services of
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`the a
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`store designer,
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`a contractor
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`to perform the
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`construction of
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`the
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`Plaintiff's premises,
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`purchased. merchandise
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`from suppliers,
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`engaged
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`FILED: NEW YORK COUNTY CLERK 04/19/2017 12:29 PM
`FILED: NEW YORK COUNTY CLERK 04m2017 12:29 PM
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`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
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`INDEX NO. 650686/2017
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`RnCnIVnD VYSCEF: 04/19/2017
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`electricians,
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`a locksmith, a contractor to wire up security cameras, a
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`contractor to detail
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`the floors and purchased furniture and equipment
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`for the operation of its business.
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`25. Bret Pidgeon,
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`the General Manager of the Defendant, observed the
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`construction on a day to day basis during such activity, was fully aware
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`that the Plaintiff entered into agreements with, and.incurred obligations
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`to creditors and contractors, and that it expended considerable sums of
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`money on the remodeling, outfitting'
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`and stocking of
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`the Licensed
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`Premises,
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`as well as
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`for brokerage commission. and other necessary
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`expenses.
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`26.
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`The Defendant authorized the Plaintiff
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`to proceed. with the
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`renovation and outfitting of
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`the Licensed Premises knowing full well
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`that
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`the Plaintiff would and did incur expenses and obligations in
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`preparing the Licensed Premises for opening to the public, and with the
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`intention that the Plaintiff acted solely'in reliance upon the statements
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`and approval of the Defendant.
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`AS AND FOR A THIRD CAUSE OF ACTION
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`(BREACH OF COVENANT OF GOOD FAITH)
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`27.
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`Plaintiff repeats and realleges each and every allegation of
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`Paragraphs of the Complaint numbered “1” through “26” inclusive with the
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`same force and effect as though more fully set forth at length herein-
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`28.
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`Ey’
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`reason. of
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`the foregoing,
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`the Defendant
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`is estopped.
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`from
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`disavowal and cancellation of the License Agreement, and from the defense
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`that the Defendant is not responsible for Plaintiff’s damages, which the
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`Plaintiff has sustained based upon the alleged refusal or failure of the
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`landlord to consent to the License Agreement.
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`FILED: NEW YORK COUNTY CLERK 04/19/2017 12:29 PM
`FILED: NEW YORK COUNTY CLERK 04m2017 12:29 PM
`NYSCI
`3F DOC. NO. 23
`NYSCEF DOC. NO. 23
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`INDEX NO. 650686/2017
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`RnCnIVnD VYSCEF: 04/19/2017
`RECEIVED NYSCEF: 04/19/2017
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`29.
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`The conduct of the Defendant, as heretofore alleged, constitutes
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`a breach of the covenant of good faith.
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`30.
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`By virtue of the foregoing,
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`the Plaintiff demands judgment for
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`such sums as are found to be rightfully due to the Plaintiff, but
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`in no
`
`event
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`less than $1,500,000.00,
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`together with an award of counsel fees
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`in such amount as to this Court may be just and proper,
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`together with
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`interest according to law.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff Times Square Souvenirs,
`
`Inc. prays for entry
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`of
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`judgment against
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`the Defendant, Big Apple Entertainment Partners,
`
`LLC, as follows:
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`1.
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`Compensatory damages sustained by the Plaintiff in the sum of
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`not less than $1,500,000;
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`2.
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`on each of
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`the Second and Third Causes of Action for damages
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`sustained by the Plaintiff for present, future and prospective profits;
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`3.
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`together with
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`prevjudgment
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`and
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`post—judgment
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`interest,
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`attorneys’ fees and the costs and disbursements of this action,
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`together
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`with such other and further relief as this Court may deem just and
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`proper.
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`Dated: New York, N w York
`April 19, 20
`
`THE DWECK LAW FIR
`
`—.
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`Jack S. Dweck
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`S:\SECRETARY 2\CLIENT DOCS\TIMES SQUARE - CHEN QRAMENDED COMPLAINT JSD-GS DRAFT #8 4-19-17DOCX
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`FILED: NEW YORK COUNTY CLERK 04/19/2017 12:29 PM
`FILED: NEW YORK COUNTY CLERK 04m2017 12:29 PM
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`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
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`INDEX NO. 650686/2017
`INDEX NO~ 650686/2017
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`RnCnIVnD VYSCEF: 04/19/2017
`RECEIVED NYSCEF: 04/19/2017
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`VERIFICATION
`
`STATE OF NEW YORK
`
`COUNTY OF NEW YORK
`
`)
`
`)
`
`JACK S. DWECK, being duly sworn, deposes and says:
`
`the
`am a nember of The Dweck Law Firm, LLP, attorneys for
`I
`Plaintiff Times Square Souvenirs, Inc.
`in the above—entitled.proceeding.
`I have read the annexed Amended Verified Complaint, know the contents
`thereof and the same are true to my knowledge except
`those matters
`therein which are stated to be alleged upon information and belief and
`as to those matters I believe them to be true. My belief as to those
`matters therein not stated upon knowledge is based upon communications
`with our client and documents furnished to me.
`
`The reason I make this Verification instead of the Plaintiff is a
`
`fice is in a county other than the county
`corporation, and that my
`where the Plaintiff's pri cipals are located.
`
`
`
`JACK S. DWECK
`
`Sworn to before me this
`
`19th day of April, 2017
`
`,17I
`.4
`’
`
`
`Nofary Public
`
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