throbber
FILED: WESTCHESTER COUNTY CLERK 07/22/2022 12:06 PM
`NYSCEF DOC. NO. 1
`RECEIVED NYSCEF: 07/22/2022
`
`INDEX NO. 62713/2022
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF WESTCHESTER
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
`Empire Coffee Company Inc.
`
`Index No.:
`
`::::::::::::::
`
`Plaintiff,
`
`-against-
`
`Essex House Coffee Co. Inc., and Thomas
`Ocera,
`
`Defendants.
`
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
`
`Date Index No. Purchased:
`
`SUMMONS
`Plaintiff designates
`Westchester County as the
`place of trial; Venue is based
`on CPLR 503
`Plaintiff’s address is 106
`Purdy Avenue, Port Chester,
`New York 10573
`
`TO THE ABOVE-NAMED DEFENDANTS:
`
`YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action and
`
`serve a copy of your answer on the Plaintiff’s undersigned attorney within 20 days after the
`
`service of this summons, exclusive of the day of service (or 30 days if this summons is not
`
`personally delivered to you within New York State). In case of your failure to appear or answer,
`
`judgment will be taken against you by default, in accordance with the Verified Complaint herein.
`
`1 of 14
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 07/22/2022 12:06 PM
`NYSCEF DOC. NO. 1
`RECEIVED NYSCEF: 07/22/2022
`
`INDEX NO. 62713/2022
`
`Dated: July 22, 2022
`Harrison, New York
`
`LAW OFFICE OF LAWRENCE M. SEGAN
`
`By:
`Lawrence M. Segan
`510 North Street
`Harrison, New York 10528-1021
`lmsegan@seganlaw.com
`Tel.: (917) 837-9213
`
`Attorney for Plaintiff
`Empire Coffee Company Inc.
`
`2
`
`2 of 14
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 07/22/2022 12:06 PM
`NYSCEF DOC. NO. 1
`RECEIVED NYSCEF: 07/22/2022
`
`INDEX NO. 62713/2022
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF WESTCHESTER
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
`Empire Coffee Company Inc.
`
`Index No.:
`
`VERIFIED COMPLAINT
`
`:::::::::
`
`Plaintiff,
`-against-
`Essex House Coffee Co. Inc., and Thomas
`Ocera,
`
`Defendants.
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
`
`Plaintiff Empire Coffee Company Inc. (“Empire”), by and through its undersigned
`
`attorney, as and for its Verified Complaint against Defendant Essex House Coffee Co. Inc.
`
`(“Essex”) and Defendant Thomas Ocera (“Ocera,” and with Essex, the “Defendants”), alleges as
`
`follows:
`
`FACTS
`
`1.
`
`This is a simple case. The Defendants have refused to pay for coffee purchased
`
`from Empire and owe Empire not less than $17,529.77 for unpaid invoices.
`
`2.
`
`Empire is a coffee company with its principal place of business in Port Chester,
`
`New York. Empire roasts, grinds and packages coffee for its customers.
`
`3.
`
`According to its website, and upon information and belief, Essex is (or was) a
`
`coffee company that sells coffee to offices, deli’s, restaurants, and cafés. See
`
`https://essexhousecoffee.com/. Empire has since discovered that Essex was dissolved by
`
`proclamation in 2016, and as a result Empire has also brought this action against Ocera
`
`personally because Ocera acted and purported to act as the CEO and sole owner of Essex.
`
`4.
`
`In 2019, Defendants entered into a relationship with Empire and began to
`
`purchase coffee from Empire.
`
`3
`
`3 of 14
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 07/22/2022 12:06 PM
`NYSCEF DOC. NO. 1
`RECEIVED NYSCEF: 07/22/2022
`
`INDEX NO. 62713/2022
`
`5.
`
`Over the course of the parties’ relationship, Defendants made multiple purchase
`
`orders from Empire. Empire fulfilled those purchase orders and, pursuant to the terms of the
`
`parties’ agreement, Empire invoiced Essex for those purchase orders
`
`6.
`
`Pursuant to the parties’ agreement, payment was due within 30 days of receipt of
`
`an invoice.
`
`7.
`
`In 2022, Defendants stopped paying Empire’s invoices. As a result, Defendants
`
`now have overdue invoices payable to Empire in an amount not less than $17,529.77. A ledger
`
`reflecting these past due invoices is annexed here as Exhibit A.
`
`8.
`
`Empire’s CEO Robert Richter has made repeated requests to Defendants for
`
`payment, but they refuse to pay.
`
`9.
`
`Ocera has told Richter that payment is not required because some of the boxes in
`
`which the coffee was delivered were brown and not white, and because some of the boxes lacked
`
`coffee filters.
`
`10.
`
`These are not valid reasons not to pay Empire. Importantly, Richter alerted Ocera
`
`that Empire could not provide white boxes and coffee filters for every order. Nonetheless,
`
`Defendants ordered coffee from Empire, Empire prepared the coffee for Defendants, Empire
`
`delivered the coffee to Defendants, and, upon information and belief, Defendants used the coffee
`
`by selling that coffee.
`
`11.
`
`Defendants have never asserted any credible rationale for not paying Empire’s
`
`invoices.
`
`12.
`
`Due to Defendants repeated refusals to pay these invoices, Empire had no choice
`
`but to commence this lawsuit to recover the $17,529.77 that Defendants owe to Empire.
`
`13.
`
`Empire has also been forced to bring this lawsuit against Ocera personally.
`
`4
`
`4 of 14
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 07/22/2022 12:06 PM
`NYSCEF DOC. NO. 1
`RECEIVED NYSCEF: 07/22/2022
`
`INDEX NO. 62713/2022
`
`14.
`
`Ocera represented in a customer intake form to Empire dated in 2019 that Essex
`
`was a company then in existence.
`
`15.
`
`Ocera continued to make these representations throughout the parties’ relationship
`
`by having Essex submit purchase orders to Empire for coffee.
`
`16.
`
`However, when preparing this lawsuit, Empire discovered that Essex, formerly a
`
`domestic New York business corporation, was dissolved by proclamation and has been inactive
`
`since October 26, 2016.
`
`17.
`
`Thus, Ocera’s failure to respect the corporate form renders him personally liable
`
`for the outstanding and unpaid invoices due and payable to Empire.
`
`18.
`
`In addition, since Defendants refused payment after repeated requests from
`
`Empire, Ocera has, upon information and belief, contacted at least one customer of Empire and
`
`made slanderous statements about Empire to a customer of Empire, purportedly making
`
`statements that, in words or substance, “Empire really sucks” and that Empire is a “terrible
`
`company.” Although Empire is not, by this action, pursuing claims for slander, Empire reserves
`
`its right to do so.
`
`THE PARTIES
`
`19.
`
`At all relevant times, Empire was and is a corporation organized and existing
`
`under the laws of the State of New York, with its principal place of business at 106 Purdy
`
`Avenue, Port Chester, New York 10573.
`
`20.
`
`At all relevant times, Empire believed that Essex was a New York domestic
`
`business corporation, and accordingly Empire’s invoices were directed to Essex, in the care of its
`
`purported Chief Executive Officer and owner Ocera. However, upon preparing this lawsuit,
`
`Empire learned from the New York Secretary of State’s website that Essex was dissolved by
`
`5
`
`5 of 14
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 07/22/2022 12:06 PM
`NYSCEF DOC. NO. 1
`RECEIVED NYSCEF: 07/22/2022
`
`INDEX NO. 62713/2022
`
`proclamation and has been inactive since October 26, 2016.
`
`21.
`
`Ocera is an individual who, upon information and belief, is residing at 44 West 1st
`
`Street, Freeport, New York 11520. He purported to be the CEO and owner of Essex, made all
`
`orders on behalf of Essex during the parties’ relationship, and was the sole interface that Empire
`
`had with Essex.
`
`JURISDICTION AND VENUE
`
`22.
`
`This Court has jurisdiction over Defendants because Defendants are resident in
`
`New York and transact business in New York.
`
`23.
`
`Venue is proper in this Court because Empire is located in Westchester County,
`
`New York and the events giving rise to this action occurred in Westchester County, New York.
`
`FIRST CAUSE OF ACTION
`(Account Stated)
`
`24.
`
`Empire repeats, realleges and incorporates by reference the allegations set forth in
`
`paragraphs 1 through 23 above with the same force and effect as if fully set forth herein.
`
`25.
`
`Essex has outstanding invoices for coffee purchased from Empire in the amount
`
`of $17,529.77.
`
`26.
`
`27.
`
`28.
`
`Ocera is also responsible for these unpaid invoices.
`
`Defendants have never asserted any valid justification not to pay these invoices.
`
`As a result, there is an account stated pursuant to which Defendants are jointly
`
`and severally liable to Empire for not less than $17,529.77.
`
`SECOND CAUSE OF ACTION
`(Breach of Contract)
`
`29.
`
`Empire repeats, realleges and incorporates by reference the allegations set forth in
`
`paragraphs 1 through 28 above with the same force and effect as if fully set forth herein.
`
`6
`
`6 of 14
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 07/22/2022 12:06 PM
`NYSCEF DOC. NO. 1
`RECEIVED NYSCEF: 07/22/2022
`
`INDEX NO. 62713/2022
`
`30.
`
`Empire and Essex had a contract in which Essex would submit purchase orders to
`
`Empire for coffee, Empire would fill those orders, Empire would invoice Essex for those orders,
`
`and then Essex was required to make payment within, at most, 30 days.
`
`31.
`
`Empire has complied with all of its obligations pursuant to the purchase orders
`
`made by Essex.
`
`32.
`
`Essex has breached, and continues to breach, its agreement with Empire because
`
`it refuses to pay Empire $17,529.77 for coffee that Empire sold to Essex and because it failed to
`
`make payment within 30 days.
`
`33.
`
`Ocera is also personally responsible because he falsely led Empire to believe that
`
`Essex was still in existence at the time of these purchase orders even though Essex had been
`
`dissolved in 2016.
`
`34.
`
`As a result of the aforementioned breach of contract, Empire has suffered actual
`
`damages of not less than $17,529.77.
`
`35.
`
`As a result, Defendants are jointly and severally liable to Empire for not less than
`
`$17,529.77.
`
`THIRD CAUSE OF ACTION
`(Breach of Implied Contract)
`
`36.
`
`Empire repeats, realleges and incorporates by reference the allegations set forth in
`
`paragraphs 1 through 35 above with the same force and effect as if fully set forth herein.
`
`37.
`
`Defendants, by their actions, impliedly agreed to pay Empire for the coffee they
`
`purchased from Empire.
`
`38.
`
`Defendants refusal to pay the amounts it owes is a continuing breach of the
`
`implied agreements into which the parties entered.
`
`39.
`
`Empire has duly and repeatedly demanded payment.
`
`7
`
`7 of 14
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 07/22/2022 12:06 PM
`NYSCEF DOC. NO. 1
`RECEIVED NYSCEF: 07/22/2022
`
`INDEX NO. 62713/2022
`
`40.
`
`As a result of the foregoing, Empire has been damaged in the amount of not less
`
`than $17,529.77.
`
`FOURTH CAUSE OF ACTION
`(Quantum Meruit)
`
`41.
`
`Empire repeats, realleges and incorporates by reference the allegations set forth in
`
`paragraphs 1 through 40 above with the same force and effect as if fully set forth herein.
`
`Empire sold coffee to Defendants with an expectation of payment for that coffee.
`
`Defendants accepted that coffee.
`
`The value of the coffee Empire sold that has not been paid for is not less than
`
`42.
`
`43.
`
`44.
`
`$17,529.77.
`
`45.
`
`As a result, Empire has been damaged in the amount of not less than $17,529.77.
`
`FIFTH CAUSE OF ACTION
`(Unjust Enrichment)
`
`46.
`
`Empire repeats, realleges and incorporates by reference the allegations set forth in
`
`paragraphs 1 through 45 above with the same force and effect as if fully set forth herein.
`
`47.
`
`Defendants received not less than $17,529.77 worth of coffee from Empire that
`
`they did not pay for.
`
`48.
`
`Defendants were enriched by ordering and taking coffee from Empire and not
`
`paying for it. Empire thus conferred a benefit upon Defendants.
`
`49.
`
`Under these circumstances, it would be inequitable for Defendants to profit from
`
`their wrongful conduct.
`
`50.
`
`Accordingly, Defendants are jointly and severally liable to Empire for not less
`
`than $17,529.77.
`
`8
`
`8 of 14
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 07/22/2022 12:06 PM
`NYSCEF DOC. NO. 1
`RECEIVED NYSCEF: 07/22/2022
`
`INDEX NO. 62713/2022
`
`SIXTH CAUSE OF ACTION
`(Goods Sold And Delivered)
`
`51.
`
`Empire repeats, realleges and incorporates by reference the allegations set forth in
`
`paragraphs 1 through 50 above with the same force and effect as if fully set forth herein.
`
`52.
`
`53.
`
`54.
`
`Empire sold and delivered goods to Defendants.
`
`Defendants accepted and enjoyed the use of those goods.
`
`Accordingly, Empire is entitled to be paid for the goods it sold and delivered to
`
`Defendants in an amount not less than $17,529.77 and Ocera is personally liable because Ocera
`
`disregarded the corporate form in New York.
`
`WHEREFORE, Empire respectfully demands judgment in its favor as follows:
`
`A.
`
`On its First Cause of Action, damages in the amount of not less than $17,529.77
`
`plus pre- and post-judgment interest and attorneys’ fees;
`
`B.
`
`On its Second Cause of Action, damages in the amount of not less than
`
`$17,529.77 plus pre- and post-judgment interest and attorneys’ fees;
`
`C.
`
`On its Third Cause of Action, damages in the amount of not less than $17,529.77
`
`plus pre- and post-judgment interest and attorneys’ fees;
`
`D.
`
`On its Fourth Cause of Action, damages in the amount of not less than $17,529.77
`
`plus pre- and post-judgment interest and attorneys’ fees;
`
`E.
`
`On its Fifth Cause of Action, damages in the amount of not less than $17,529.77
`
`plus pre- and post-judgment interest and attorneys’ fees;
`
`F.
`
`On its Sixth Cause of Action, damages in the amount of not less than $17,529.77
`
`plus pre- and post-judgment interest and attorneys’ fees;
`
`G.
`
`An award of costs and disbursements incurred in connection with this action; and
`
`9
`
`9 of 14
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 07/22/2022 12:06 PM
`NYSCEF DOC. NO. 1
`RECEIVED NYSCEF: 07/22/2022
`
`INDEX NO. 62713/2022
`
`H.
`
`Such other and further relief as the Court deems just and proper.
`
`10
`
`10 of 14
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 07/22/2022 12:06 PM
`NYSCEF DOC. NO. 1
`RECEIVED NYSCEF: 07/22/2022
`
`INDEX NO. 62713/2022
`
`Dated: July 22, 2022
`Harrison, New York
`
`LAW OFFICE OF LAWRENCE M. SEGAN
`
`By:
`Lawrence M. Segan
`510 North Street
`Harrison, New York 10528-1021
`lmsegan@seganlaw.com
`Tel.: (917) 837-9213
`
`Attorney for Plaintiff
`Empire Coffee Company Inc.
`
`11
`
`11 of 14
`
`

`

` Se.
`
`Sworn to before me
`thise20?day of July, 2022
`
`NOTARY PUBLIC
`
`OMAYRA HERNANDEZ
`Notary Public State of New York
`Qualified in Westchester County
`Commission Expires 12174 [roa
`
`ia
`
`Robert A. Richter
`
`12 of 14
`
`
`62713/2022
`INDEX NO. 62713/2022
`FILED: WESTCHESTER COUNTY CLERK 07/22/2022 12:06 PM
`
`FILED: WESTCHESTER COUNTY CLERK 07/22/2022 12:06 P Ee
`
`
`
`
`
`RECEIVED NYSCEF:
`NYSCEF DOC. NO.
`1
`07/22/2022
`NYSCEF DOC. NO. 1
`RECEIVED NYSCEF: 07/22/2022
`
`VERIFICATION
`
`ss:
`
`)
`
`))
`
`STATE OF NEW YORK
`
`COUNTY OF WESTCHESTER
`
`Robert. A. Richter, CEO ofPlaintiff Empire Coffee Company,Inc., being duly sworn,
`
`deposes and saysthat he has read the foregoing Verified Complaint and knowsthe contents
`
`thereof; and that the sameis true to his own knowledge, except as to those matters herein stated
`
`to be alleged on information and belief, and as to those matters, he believes them to betrue.
`
`

`

`INDEX NO. 62713/2022
`FILED: WESTCHESTER COUNTY CLERK 07/22/2022 12:06 PM
`FILED: WESTCHESTER COUNTY CLERK 07/22/2022 12:06 PM
`INDEX NO. 62713/2022
`NYSCEF DOC. NO. 1
`RECEIVED NYSCEF: 07/22/2022
`NYSCEF DOC. NO.
`1
`RECEIVED NYSCEF: 07/22/2022
`
`EXHIBIT A
`EXHIBIT A
`
`13
`13
`
`13 of 14
`13 of 14
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 07/22/2022 12:06 PM
`NYSCEF DOC. NO. 1
`
`AR Balance by Customer (Open Documents)
`Company/Branch:
`EMPIRE
`
`Financial Period:
`Customer:
`
`07-2022
`ESSE
`
`INDEX NO. 62713/2022
`
`RECEIVED NYSCEF: 07/22/2022
`
`Page:
`Date:
`User:
`
`1 of 1
`7/12/2022 10:57 AM
`Dina Herrera
`
`Applied
`
`Closed
`
`Description
`
`Customer
`
`Customer Name
`
`ESSE
`
`Account
`
`1100
`
`Ref. Number
`IN80492
`IN80579
`IN80737
`IN81215
`IN81304
`IN81458
`IN81599
`IN81566
`IN81740
`IN81793
`IN81930
`IN82171
`IN82500
`IN82736
`IN82812
`IN82936
`IN83061
`IN83231
`
`Essex House Coffee Co., Inc.
`
`Subaccount
`
`Doc. Date
`Doc. Type
`8/27/2020
`INVOICE
`9/17/2020
`INVOICE
`10/13/2020
`INVOICE
`1/6/2021
`INVOICE
`1/18/2021
`INVOICE
`2/22/2021
`INVOICE
`CREDIT MEMO 3/16/2021
`INVOICE
`3/16/2021
`INVOICE
`4/12/2021
`INVOICE
`4/15/2021
`INVOICE
`5/25/2021
`INVOICE
`7/8/2021
`INVOICE
`8/17/2021
`INVOICE
`10/18/2021
`CREDIT MEMO 10/20/2021
`INVOICE
`11/16/2021
`INVOICE
`12/16/2021
`INVOICE
`1/18/2022
`
`Posted
`08-2020
`09-2020
`10-2020
`01-2021
`01-2021
`02-2021
`03-2021
`03-2021
`04-2021
`04-2021
`05-2021
`07-2021
`08-2021
`10-2021
`10-2021
`11-2021
`12-2021
`01-2022
`
`Amount / Applied
`2,324.48
`3,197.88
`2,377.00
`1,605.00
`2,515.49
`1,301.25
`-1,040.48
`2,414.44
`2,247.00
`1,902.83
`4,482.40
`10,994.37
`2,478.00
`3,670.00
`-556.10
`3,195.00
`4,985.61
`6,300.00
`
`Balance
`1,099.68
`3,197.88
`143.45
`110.50
`432.99
`295.71
`-1,040.48
`373.59
`154.70
`375.26
`699.60
`159.98
`385.70
`3,670.00
`-556.10
`377.50
`1,349.81
`6,300.00
`
`17,529.77
`
`17,529.77
`
`Account Documents Total:
`
`Customer Documents Total:
`
`14 of 14
`
`

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