This Court dismissed defendants' first and second counterclaims for conversion and fraud as a matter of law based upon inadequacies in the pleading.
In response to plaintiff's in limine motion prior to trial, the Court precluded any evidence of sexual harassment as alleged in the fourth counterclaim as no such evidence had been adduced in response to discovery demands.
The claims for punitive damages were dismissed upon the prima facie motion based upon the failure to plead egregious or malicious conduct which would warrant such recovery.
Defendants interposed four counterclaims against Cortes claiming damages for conversion of money and corporate property for his own purposes, misrepresentation of corporate expenses, breach of the contract to sell his shares to defendants for the sum paid for such shares and various alleged breaches of his duty to perform his duties as manager in a responsible manner.
Generally, plaintiff was in charge of all aspects of day-to-day management.
At the end of each shift, he would turn over to Nathan Birkenfeld, the night manager, the server reports that had been generated in the course of the day.
Ramunni acknowledged that not all of the cash collected at Cabo was deposited in the Cabo bank account, but that some vendors and employees were paid in cash.Plaintiff complains that the individual defendants, each of whom owns 41.7% of the corportation, have breached their fiduciary duty to him and the corporation by siphoning off profits of the corporation, failing to hold shareholder meetings, failing to purchase his shares at fair value, and, against all defendants, for failure to declare a dividend in which he would receive his fair share of the profits in proportion to his ownership interest.Plaintiff seeks dissolution of the corporation on a common law theory of fraudulent and oppressive conduct toward him and, derivatively on behalf of the corporation, the imposition of a constructive trust over the money, property and assets of Ramunni and Dominick De Simone (De Simone) to secure the recovery of any judgment against them.Andrew Rotstein, Esq., Brooklyn, NY, Attorney for Plaintiffs. A handwritten addendum to the typewritten Agreement, which is separately executed by Cortes and Ramunni, further provides: “Purchasers [sic] position with the corporation is a managing partner. Cortes decides to resign his position as manager Sellers have the right to purchase back his shares and terminate the partnership”. Pursuant to written agreement dated August 9, 2003, executed by Cortes and defendant Angelo Ramunni (Ramunni), if Purchaser Cortes decided to sell his shares or resign his position as “managing partner” of the corporation, Seller had the option of first refusal to purchase the shares “unless said resignation is caused by the demand of the Seller and its principals for the Purchaser to engage in employment in an entity owned and operated by said Seller and principals” (Agreement).