`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`To the Person(s) Named as Defendant(s) above:
`
`SUPREME COURT OF NEW YORK
`COUNTY OF RICHMOND
`________________________________________
`
`
`
`
`
`
`
`BDD Page Ave. Restaurant Corp.
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`
`
`
`
`CABO Page Avenue Associates LLC
`
`
`Defendant,
`
`
`
`
`
`
`
`
`
`
`
`Jamir Archer
`
`
`
`
`
`Defendant,
`
`
`
`
`
`
`
`
`
`
`
`Alejandro Nava
`
`
`
`
`
`Defendant,
`
`
`
`
`________________________________________
`
`
`
`PLEASE TAKE NOTICE THAT YOU ARE SUMMONED to answer the complaint of
`
`the plaintiff herein and to serve a copy of your answer on the plaintiff at the address indicated
`below within 20 days after service of this Summons (not counting the day of service itself), or
`within 30 days after service is complete if the Summons is not delivered personally to you within
`the State of New York.
`
`YOU ARE HEREBY NOTIFIED THAT should you fail to answer, a judgment will be
`
`entered against you by default for the relief demanded in the complaint.
`
`Dated: New York, New York
`
`July 18, 2022
`
`
`
`
`FILED: RICHMOND COUNTY CLERK 07/19/2022 12:51 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 151254/2022
`
`RECEIVED NYSCEF: 07/19/2022
`
`
`
`SUMMONS
`
`Index No. ___________________
`
`
`
`
`Date Index No. Purchased
`
`_____________________
`
`
`
`
`
`
`
`
`
`
`
`LAW OFFICES OF D. MARA LOWENSTEIN, ESQ.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`By:
`
`
`
`
`
`
`
`D. Mara Lowenstein
`43 W. 43rd Street, Suite 57
`New York, New York 10036-7424
`(917) 797-3346
`mara@dmaralowenstein.com
`
`
`CABO Page Avenue Associates LLC
`96 Page Avenue
`
`
`
`1
`
`1 of 10
`
`

`

`FILED: RICHMOND COUNTY CLERK 07/19/2022 12:51 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 151254/2022
`
`RECEIVED NYSCEF: 07/19/2022
`
`
`
`Staten Island, NY 10309
`
`Alejandro Nava
`38-05 36th Avenue
`Long Island City, NY 11101
`
`Jamir Archer
`40 Chestnut Street
`Staten Island, NY 10305
`
`
`
`2
`
`2 of 10
`
`

`

`FILED: RICHMOND COUNTY CLERK 07/19/2022 12:51 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 151254/2022
`
`RECEIVED NYSCEF: 07/19/2022
`
`
`
`COMPLAINT
`
`Index No. ___________________
`
`
`
`SUPREME COURT OF NEW YORK
`COUNTY OF RICHMOND
`________________________________________
`
`
`
`
`
`
`
`BDD Page Ave. Restaurant Corp.
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`
`
`
`
`CABO Page Avenue Associates LLC
`
`
`Defendant,
`
`
`
`
`
`
`
`
`
`
`
`Jamir Archer
`
`
`
`
`
`Defendant,
`
`
`
`
`
`
`
`
`
`
`
`Alejandro Nava
`
`
`
`
`
`Defendant,
`
`
`
`
`
`
`________________________________________
`
`Plaintiff BDD Page Ave. Restaurant Corp. (“BDD” and “Plaintiff”), by and through its
`
`attorney, D. Mara Lowenstein, Esq. as and for its Complaint, as of right, respectfully allege as
`follows:
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`
`CLAIMS
`
`NATURE OF THE CLAIMS
`
`
`
`1. On or about September 19, 2019, Defendants executed a Promissory Note in the
`amount of $80,000 (both principal and interest) in favor of the Plaintiff (a copy of which is
`attached hereto as Exhibit A) (the “Note”). The payment obligations of the Note are personally
`and unconditionally guaranteed by individual Defendants Jamir Archer and Alejandro Nava.
`
`2. The Note was to be paid in equal amounts of $3,333.33 each on the 1st day of 24
`consecutive months commencing on December 1, 2019 plus a one-time payment of $7,775.00 to
`reimburse the Plaintiff for rent security credited to the corporate Defendant.
`
`3. In light of the Covid-19 pandemic (and as an accommodation to the Defendants),
`the Plaintiff agreed to a temporary hiatus in the requisite monthly payments and a waiver of the
`Default Rate of interest (as defined in the Note). The Plaintiff has made repeated calls to the
`Defendants and sent a Notice to Cure (as defined in the Note) by certified mail on February 7,
`2022 (a copy of which is attached hereto as Exhibit B). The only payments made by the
`corporate were the following seven (7) payments in the aggregate amount of $10,000 as follows:
`
`Oct. 30, 2020
`April 15, 2021
`
`$1,000
`$1,500
`
`
`
`1
`
`3 of 10
`
`

`

`FILED: RICHMOND COUNTY CLERK 07/19/2022 12:51 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 151254/2022
`
`RECEIVED NYSCEF: 07/19/2022
`
`
`
`$1,500
`$1,500
`$1,500
`$1,500
`$1,500
`
`June 7, 2021
`July 1, 2021
`August 4, 2021
`Sept. 25, 2021
`Oct. 23, 2021
`
`A balance on the Note in the amount of $70,000 remains outstanding and has been accruing
`interest at the Default Rate since November of 2021 and has been accumulating late charges in
`accordance with the Note.
`
`
`
`
`PARTIES
`
`The Plaintiff herein, BDD Page Ave. Restaurant Corp. is a corporation
`4.
`duly organized under the laws of the State of New York and accepts mail c/o Pat DeSimone, 67
`Greenport Street, Staten Island, NY 10304.
`
`The corporate Defendant herein, CABO Page Avenue Associates LLC has
`5.
`its usual place of business at 96 Page Avenue, Staten Island, NY 10309.
`
`The individual Defendant herein, Alejandro Nava is a resident of New
`6.
`York and resides at 38-05 36th Avenue, Long Island City, NY 11101.
`
`The individual Defendant herein, Jamir Archer is a resident of New York
`7.
`and resides at 40 Chestnut Street, Staten Island, New York 10305.
`
`
`JURISDICTION AND VENUE
`
`
`This court has jurisdiction over Defendants pursuant to CPLR §301 and/or
`8.
`§302 as the causes of action asserted against the Defendants arise out of business transacted by
`the Defendants within Richmond County, New York State and, on information and belief,
`Defendants regularly do business in New York State.
`
`Upon information and belief, venue is proper in this county pursuant to
`9.
`CPLR §503 because the corporate Defendant, CABO Page Avenue Associates LLC, is a
`domestic limited liability company with its principal office in Richmond County, the Plaintiff is a
`domestic corporation with its principal office in Richmond County, individual Defendant Jamir
`Archer is a resident of Richmond County, and both individual Defendants (Alejandro Nava and
`Jamir Archer) are the sole owners of CABO Page Avenue Associates LLC which does business
`in Richmond County.
`
`
`AS AND FOR A FIRST CAUSE OF ACTION
`(Breach of Contract)
`
`
`
`The Plaintiff repeats and realleges the allegations set forth in paragraphs 1
`10.
`– 9 as if fully set forth herein.
`
`
`
`
`2
`
`4 of 10
`
`

`

`FILED: RICHMOND COUNTY CLERK 07/19/2022 12:51 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 151254/2022
`
`RECEIVED NYSCEF: 07/19/2022
`
`
`
`The Defendants entered into the Note and related personal guaranty but,
`11.
`despite repeated verbal and written demands, have violated the terms of the Note and the personal
`guaranty.
`
`
`Despite having received a written demand from Plaintiff by certified mail
`12.
`in February of this year, the Defendants have failed and continue to fail to make payment.
`
`Plaintiff is entitled to direct and consequential damages in an amount to be
`13.
`determined at trial of no less than $70,000.
`
`
`
`AS AND FOR A SECOND CAUSE OF ACTION
`(Unjust Enrichment)
`
`
`The Plaintiff repeats and realleges the allegations set forth in paragraphs 1
`14.
`–13 as if fully set forth herein.
`
`
`15. When the Plaintiff sold the Defendants the restaurant (CABO) (the
`“Restaurant”) located at 96 Page Avenue in Staten Island, the Plaintiff acted in good faith and
`agreed to allow the Defendants to pay a significant portion of the purchase price over the course
`of approximately 2 years – as memorialized in the form of the Note and personal guaranty.
`
`The Restaurant is fully open and operating and yet Defendants have failed,
`16.
`and continue to fail, to uphold their contractual obligations under the Note and related personal
`guaranty and, as a result of such failure, all of the Defendants have been unjustly enriched at the
`expense of the Plaintiff, and it is against equity and good conscience to permit the Defendants to
`continue to fail to pay the Note.
`
`Plaintiff is entitled to direct and consequential damages in an amount to be
`17.
`determined at trial of no less than $70,000.
`
`
`AS AND FOR A THIRD CAUSE OF ACTION
`(Fraudulent Inducement)
`
`
`The Plaintiff repeats and realleges the allegations set forth in paragraphs 1
`18.
`–17 as if fully set forth herein.
`
`
`19. When the plaintiff negotiated the sale of the Restaurant, the Defendants
`requested that part of the purchase price be in the form of the Note and the individual Defendants
`agreed to personally guaranty the payment of the Note. Such representations induced the
`Plaintiff to sell the Restaurant to the corporate Defendant and the Plaintiff relied on such
`representations.
`
`Despite having made numerous accommodations by Plaintiff to the
`20.
`defendants, the Note is seriously delinquent and in arrears and the defendants have made no
`attempts to resume payments under the Note. At this point it has become clear that the
`
`
`
`3
`
`5 of 10
`
`

`

`FILED: RICHMOND COUNTY CLERK 07/19/2022 12:51 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 151254/2022
`
`RECEIVED NYSCEF: 07/19/2022
`
`
`
`Defendants fraudulently induced Plaintiff to sell them the Restaurant without intending to pay the
`full purchase price.
`
`Plaintiff is entitled to direct and consequential damages in an amount to be
`21.
`determined at trial of no less than $70,000.
`
`WHEREFORE, BDD Page Ave. Restaurant Corp. respectfully demands
`judgment as follows:
`
`1.
`
`On Claim 1, damages in an amount to be determined at trial, no less than
`
`$70,000;
`
`$70,000;
`
`$70,000;
`
`
`
`
`
`
`2.
`
`
`3.
`
`On Claim 2, damages in an amount to be determined at trial, no less than
`
`On Claim 3, damages in an amount to be determined at trial, no less than
`
`Awarding pre- and post-judgment interest on Plaintiff’s claims, its
`4.
`attorneys fees, costs and disbursements in connection with this action; and
`
`
`5.
`
`Awarding such other and further relief as this Court deems necessary and
`
`proper.
`
`
`
`Dated: New York, New York
`
`July 18, 2022
`
`
`
`
`
`
`
`
`
`
`
`
`
`LAW OFFICES OF D. MARA LOWENSTEIN, ESQ.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`By:
`
`
`
`
`
`
`
`D. Mara Lowenstein
`43 W. 43rd Street, Suite 57
`New York, New York 10036-7424
`(917) 797-3346
`mara@dmaralowenstein.com
`
`ATTORNEY FOR PLAINTIFFS
`
`
`
`
`
`
`
`
`By reason of the facts and circumstances stated above, Defendants have
`committed breach of contract, unjust enrichment and fraudulent inducement.
`
`
`
`
`4
`
`6 of 10
`
`

`

`FILED: RICHMOND COUNTY CLERK 07/19/2022 12:51 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 151254/2022
`
`RECEIVED NYSCEF: 07/19/2022
`
`
`
`WHEREFORE, plaintiff demands judgment against Defendants in the sum of
`$70,000, plus default interest from December 1, 2019, costs and disbursements, together with any
`other relief the Courts finds to be just and proper.
`
`Dated: New York, New York
`
`July 18, 2022
`
`
`
`
`
`
`
`LAW OFFICES OF D. MARA LOWENSTEIN, ESQ.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`By:
`
`
`
`
`
`
`
`D. Mara Lowenstein
`43 W. 43rd Street, Suite 57
`New York, New York 10036-7424
`(917) 797-3346
`mara@dmaralowenstein.com
`
`5
`
`7 of 10
`
`

`

`FILED: RICHMOND COUNTY CLERK 07/19/2022 12:51 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 151254/2022
`
`RECEIVED NYSCEF: 07/19/2022
`
`EXHIBIT
`
`A
`
`PROMISSORY
`
`NOTE
`
`September
`
`19, 2019
`
`$80,000.00
`
`FOR VALUE RECElVED, CABO PAGE AVENUE ASSOCIATES
`LLC (the "Borrower"),
`of BDD PAGE AVE RESTAURANT
`CORP (the "Lender")
`to pay to the order
`the principal
`promises
`sum of Eighty- Seven Thousand
`Seventy-Five
`Eight Hundred
`Dollars
`with
`interest
`($78,875.00),
`the rate of THREE (3%) per annum in 24 consecutive
`included
`at
`payments
`thereon,
`monthly
`and on 1"
`day of 23 consecutive
`months
`on December
`$3,333.33
`1, 2019,
`commencing
`at which
`the entire
`note
`shall be due and payable.
`thereafter,
`promissory
`
`time
`
`of
`
`rent
`
`security
`
`a one-time
`On December
`1, 2019,
`which
`payment
`credited
`to Borrower,
`
`payment
`is secured
`
`to reimburse
`of $7,775,00
`note.
`by this promissory
`
`Lender
`
`interest
`unpaid
`of any default
`
`is expressly
`It
`agreed,
`thereon
`shall become
`this Note.
`under
`
`the said principal
`that
`of
`the option
`due at
`
`sum evidenced
`hereof
`the holder
`
`by this Note,
`plus
`on the happening
`
`Presentment
`
`for payment,
`
`notice
`
`of dishonor,
`
`protest
`
`and notice
`
`of protest
`
`are
`
`hereby waived.
`
`This Note may be prepaid
`
`at any time
`
`in whole,
`
`or
`
`in part without
`
`penalty.
`
`of BDD PAGE
`to the order
`shall be made
`payable
`this Note
`due under
`Payments
`at 67 Greenport
`CORP, c/oPat
`AVE RESTAURANT
`Staten
`island, New
`located
`Street,
`DeSimone,
`or such other
`York 10304,
`as the Lender may designate
`place
`to the Borrower
`in writing.
`
`is not made within
`due under
`a payment
`note
`the promissory
`in the event
`charge"
`amount
`(2%) of
`of
`ten (10) days after
`so past
`the payment
`percent
`a "late
`two
`due date,
`of defraying
`for
`by the holder
`the purpose
`the expenses
`incident
`due shall be charged
`thereto
`installment.
`and be added
`due on the next monthly
`to the amount
`in collecting
`said
`Any delay
`payment"
`shall not be deemed
`"late
`a waiver
`by the holder
`of
`the right
`to collect
`the same from
`the Borrower.
`
`of
`holder
`recognized
`
`All monthly
`this Note without
`New York Bank.
`
`due hereunder
`payments
`shall be made
`payable
`to the
`directly
`of endorsement
`the requirement
`and shall be drawn
`on a
`
`made
`In the event
`payment
`any monthly
`shall
`for any reason whatsoever,
`said returned
`check
`
`bank
`
`is dishonored
`by check
`incur
`a service
`charge
`
`by the maker's
`to
`of $75.00
`
`8 of 10
`
`

`

`FILED: RICHMOND COUNTY CLERK 07/19/2022 12:51 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 151254/2022
`
`RECEIVED NYSCEF: 07/19/2022
`
`the processing
`cover
`thereof
`replacement
`
`of said payment,
`shall be in certified
`
`in addition
`or official
`
`the
`to late charges which may be due,
`bank
`at
`of
`the Lender.
`the option
`check,
`
`to effect
`attorneys'
`
`it shall become
`In the event
`of
`the Borrower
`this Note,
`collection
`fees and disbursements
`in addition
`
`counsel
`hereof
`the holder
`for
`to employ
`necessary
`hereof
`to pay to the holder
`agrees
`reasonable
`costs and disbursement.
`to all other
`
`installment
`fails
`the Borrower
`In the event
`fifteen
`within
`to pay a monthly
`of default"
`days of
`hereunder.
`shall constitute
`such failure
`the due date therefore
`an "event
`Upon
`of an event
`of
`the holder
`the occurrence
`of default,
`a "Notice
`this Note
`shall provide
`Cure"
`to the Borrower.
`If the Borrower
`5 business
`days of
`does not cure the default
`within
`of such Notice
`of
`shall be entitled
`the holder
`to Cure,
`this Note
`to accelerate
`the
`mailing
`of
`this Note as if the same
`had matured
`and to exercise
`payment
`rights
`any and all
`and enforce
`for hereunder
`in equity.
`and remedies
`provided
`at
`law or
`In the event
`the holder
`shall elect
`to
`by reason
`accelerate
`the maturity
`date
`of an event
`of default,
`then
`due under
`the entire
`balance
`with
`the promissory
`together
`any other
`accrued
`charges
`and fees
`required
`to be paid
`note,
`in full.
`shall become
`due and payable
`hereunder,
`
`(15)
`
`to
`the
`
`immediately
`
`due hereunder
`sum
`are accelerated
`the amounts
`In the event
`or the principal
`understood
`and agreed
`date
`as herein
`shall not be paid on the maturity
`it
`is expressly
`provided,
`per annum (the "Default
`that
`shall bear
`this Note
`the rate of
`percent
`interest
`at
`twelve
`(12%)
`or after maturity
`until
`from the date of default
`the full principal
`to be due and payable
`Rate")
`Rate shall accrue
`shall be paid to the holder
`of
`this Note.
`Interest
`the Default
`indebtedness
`at
`through
`upon which
`the date
`if applicable,
`and including
`the Note
`is fully
`a judgment,
`paid, or,
`Rate shall be included
`this Note.
`satisfied
`and the Default
`in any judgment
`to enforce
`
`fully
`
`is
`
`be more
`never
`shall
`the
`than
`this Note
`of
`unpaid
`balance
`on the
`rate
`interest
`The
`law
`to the Borrower
`rate that may be lawfully
`maximum
`under
`applicable
`charged
`annual
`interest
`in any other
`in this Note
`or
`any provisions
`contained
`"Maximum
`Rate").
`(the
`Notwithstanding
`with
`note
`(the
`in connection
`the
`evidenced
`by this
`loan
`documents
`executed
`related
`"Loan"),
`the Lender
`shall never
`be entitled
`as interest
`any amount
`in excess
`to receive,
`collect
`or apply
`the Maximum
`Rate.
`In the
`Lender
`ever
`collects
`or applies
`any amount
`event
`the
`receives,
`the Obligor
`of
`that
`otherwise
`would
`be in excess
`of
`the Maximum
`respect
`such
`amount
`Rate,
`shall automatically
`be deemed
`to be applied
`in reduction
`of
`principal
`the unpaid
`balance
`of
`this
`if such principal
`is paid
`excess
`shall
`forthwith
`be paid to
`Note
`balance
`in full,
`or,
`any remaining
`as applicable.
`the Obligor,
`
`of
`in
`
`shall be in conflict
`or conditions
`any of
`Note
`the within
`of
`the terms
`In the event
`to
`shall have the right
`hereof
`the holder
`of any laws of
`the State of enforcement
`in violation
`or
`therewith.
`to effectuate
`make
`any adjustment
`as may be necessary
`compliance
`
`2
`
`9 of 10
`
`

`

`FILED: RICHMOND COUNTY CLERK 07/19/2022 12:51 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 151254/2022
`
`RECEIVED NYSCEF: 07/19/2022
`
`This Note may not be changed
`
`or
`
`terminated
`
`orally.
`
`This Note will be interpreted,
`the State
`of New York, without
`of
`brought
`to interpret
`or enforce
`the
`of New York.
`County
`
`construed
`to
`regard
`shall
`note
`
`the laws
`with
`in accordance
`and enforced
`Any action
`principles
`of conflicts
`of
`law.
`be brought
`in the courts
`in the State
`and
`
`The payment
`due under
`obligations
`and Alejandro
`guaranteed
`by Jamir Archer
`
`this Note are being
`a separate
`Nava, under
`
`unconditionally
`agreement.
`
`CABO PAGE AVENUE ASSOCIATES LLC
`
`MIR ARCHER, MANAGING
`
`MEMBER
`
`ALEJ
`
`DRO NAVA, MANAGING
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