Preview
FILED: NEW YORK COUNTY CLERK 04/08/2024 05:30 PM INDEX NO. 651821/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/08/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
x--------------------------------------------------------------------------------x
SUMMONS
Index Number: // Date Index Number Purchased: , 2024
Plaintiff(s): SETH CHAR
- against -
Defendant(s): CENTRAL PARK RESIDENCE LLC
x-------------------------------------------------------------------------------x
To the Person(s) Named as Defendant(s) above:
PLEASE TAKE NOTICE THAT YOU ARE SUMMONED to answer the complaint of the plaintiff(s)
herein and to serve a copy of your answer on the plaintiff(s) 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.
Signature: Dated: 2024
Print Name: SETH CHAR
Address and Telephone Number:
SETH CHAR
98-18_01 KILEKA P;AGE, AIEA, HAWAII 96701 USAJ (731) 393-1280
Defendant(s) Address:
CENTRAL PARK RESIDENCE LLC
DIDUBE DISTRICT, DIGOMI MASSIVE, V QUARTER, BUILDING 19, APARTMENT 9
TBILISI REPUBLIC OF GEORGIA
Venue: Plaintiff(s) designate(s) New York County as the place of trial. The basis of this designation is:
[ ] Plaintiff's residence in New York County
[ ] Defendant's residence in New York County
[X] Other [See CPLR Article 5]: Venue and dispute resolution clause in contract between the
Plaintiff and Defendants (NY CPLR § 501 (2022))
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1
2
SETH CHAR
3
98-1801 KILEKA PLACE
4
5 AIEA, HAWAII 96701
6 (731)-393-1280
7
8 SETH CHAR, IN PRO PER
9
THE SUPREME COURT OF THE STATE OF NEW YORK
10
11 COUNTY OF NEW YORK
12 SETH CHAR Index No. ___ // Date of Index Payment: __.
Plaintiff,
13 COMPLAINT FOR:
vs.
14 BREACH OF CONTRACT
CENTRAL PARK RESIDENCE LLC
15
FRAUDULENT MISREPRESENTATION
Defendant.
16
BAD FAITH
17
BREACH OF THE COVENANT OF GOOD
18 FAITH AND FAIR DEALING
19 NEGLIGENT MISREPRESENTATION
20 INTERFERENCE WITH CONTRACTUAL
RELATIONS
21
UNJUST ENRICHMENT
22
23
24 INTRODUCTION
25
1. On December 23rd, 2022, I, Seth Char, entered into an English language prevailing
26
Agreement,"
Agreement (the "Share Pre-Sale see Exhibit A; hereinafter referred to as "the
27
Agreement") with Central Park Residence LLC concerning the future sale of my company,
28
Iconia Capital LLC. The Agreement required Central Park Residence LLC to perform certain
1
COMPLAINT FOR DAMAGES - Char vs. Central Park Residence LLC
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2
construction works (Sections 5.3 and 5.4), and deliver financial payments (Sections 3.2.1,
3
3.2.2, and 3.2.3), within specified deadlines. The Agreement also required that the main share
4
5 purchase contract for the sale of Iconia Capital LLC be completed by April 5th, 2023 (Section
6 5.5).
7
2. Central Park Residence LLC is a fraudulent shell entity, whose true beneficial owners and
8
controlling parties include the principals of Demax Group LLC: Nika Merabishvili, Giorgi
9
Merabishvili, and Levan Shelia.
11
3. Central Park Residence LLC has willfully failed to perform the required construction works,
12 has failed to deliver required payments, and has failed to complete the main share purchase
13
contract by the agreed-upon deadlines. In addition, they have failed to fulfill their obligations
14
under the Agreement as of today's date.
15
4. Under Section 7.3 of the Agreement, unilateral termination of the Agreement is permissible in
case of breaches by the other party. In order to terminate the Agreement unilaterally, the
17
18 aggrieved party must send a written notification, with a reasonable time period for the
19 period,"
breaching party to respond. A Notice of Termination, with a 10 day "grace was sent
20
to Central Park Residence LLC to their official e-mail, written in Section 10.1 of the
21
Agreement, on June 23rd, 2023. In addition, courtesy copies of the Notice of Termination
22
were sent to Central Park Residence LLC's legal place of business multiple times afterwards
23
24 via recorded and tracked postal mail. Following the expiration of the 10 day period, Central
25 Park Residence LLC failed to respond to the Notice, nor took any actions to fulfill their
26
contract obligations in breach.
27
Right"
5. As a result of the Agreement, under Section 1.2, a "Pre-Emptive Ownership obligation
28
on the shares of Iconia Capital LLC was registered at the National Public of Georgia,
Registry
2
COMPLAINT FOR DAMAGES - Char vs. Central Park Residence LLC
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2
which acts as a lien on the company, effectively immobilizing it and preventing its sale and
3
operation to, and with, other partners, investors, and/or buyers (Exhibit B). This ongoing
4
situation has caused significant financial, time, and reputational damages to myself, the owner
5
6 of Iconia Capital LLC, who seeks to resume operations of the company, and/or sell the
company to a new buyer/investor. To this date, Central Park Residence LLC and its beneficial
8
"Nika"
owner and controlling party, Nikoloz Merabishvili, have refused to remove this lien on
9
Iconia Capital LLC, while also refusing to partially or fully abide by the terms of the
Agreement.
11
12 6. Therefore, due to the gross violations of contract by Central Park Residence LLC and its
13
controlling beneficiaries, the Agreement has been unilaterally terminated via the June 23d,
14
Right"
2023 Notice of Termination. (Exhibit J) Following this, the "Pre-Emptive Ownership
15
lien on the shares of Iconia Capital LLC must be abolished immediately, and financial
compensation from the Defendant must be paid.
17
18
19
JURISDICTION AND VENUE
20
7. This action arises out of Central Park Residence LLC's breach of its contractual and other
21
obligations to the Plaintiff, as well as other violations.
22
8. Under Section 9.4 of the Agreement, which was signed and executed by Seth Char and
23
24 Central Park Residence LLC, notarized, and registered at the National Public Registry of
25 the Parties agreed to the following: for the ICC Court
Georgia, jointly "If, any reason, of
26
Arbitration is unavailable, the parties may instead refer any dispute that cannot be resolved
27
USA."
through mediation/negotiation to the civil courts of New York,
28
9. Mediation and negotiations have failed with Central Park Residence LLC and its beneficial
3
COMPLAINT FOR DAMAGES - Char vs. Central Park Residence LLC
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2
owners and representatives via multiple discussions (all of which have ended in refusals to
3
cooperate), letters (including their willful ignorance of the June 23d, 2023 Notice of
4
Termination), and even arbitration hearing requests, which were formally requested of Central
5
6 Park Residence LLC the Georgian governmental body, the National Public
by Registry
(please refer to attached Exhibits C1, C2, C3, and C4). Concerning the latter offer of non-
8
court arbitration, Central Park Residence LLC and its officers and representatives refused to
9
participate or attend, despite being ordered to three separate times in the month of September
11
2023 by the National Public Registry. In addition, Central Park Residence LLC has ceased all
12 official communications as of August 2023 - via their official e-mail address and also via
15*,
13
postal mail.
14
10. Following this, pursuant to Section 9.3 of the Agreement, a Request for Arbitration at the
15
ICC Court of Arbitration in Paris, France was filed against Central Park Residence
LLC by the Plaintiff on February 15*, 2024. The Arbitration Request was confirmed by
17
18 the ICC on February 16*, 2024 and assigned a case reference number: 28457/HBH. In
19
addition, the ICC Secretariat confirmed the Arbitration had officially commenced on the date
20
of receipt of the Request, which was February 15*. (Exhibit D1)
21
11. Pursuant to the 2021 ICC Rules of Arbitration, the Plaintiff and his legal counsel served the
22
Request for Arbitration to Central Park Residence LLC at its official registered legal address
23
24 on February 15*, 2024 via electronic mail, and then on February 16*, 2024 via hardcopies
25 sent certified postal (Exhibit
by mail. D2)
26
12. Under Section 9.5 of the Agreement between the Parties, each Party is liable to pay for its
27
own share of Arbitration fees and costs. Following this, along with the submitted February
28
15*, 2024 Request for Arbitration, the Plaintiff requested that the Defendant Central Park
4
COMPLAINT FOR DAMAGES - Char vs. Central Park Residence LLC
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Residence LLC pay for its share of the initial arbitration costs to continue the arbitration
3
proceedings.
4
5 13. Central Park Residence LLC has failed to respond to the Request for Arbitration, the request
6 for payment of its share of arbitration costs, and failed to respond or react in any way to the
Plaintiff or the ICC Secretariat.
8
14. On February 16*, 2024, through citing Article 4(4) of the 2021 ICC Rules of Arbitration, the
9
ICC Secretariat informed the Plaintiff that the fees to continue the Arbitration proceedings
were due in 10 days from the date of its letter of receipt of the arbitration request.
11
12 15. On February 26*, 2024, the deadline for the payment of Arbitration costs had passed, and the
13
Defendant Central Park Residence LLC failed to pay its share of costs for the Arbitration, and
14
failed to react or respond in any way.
15
16. Due to the failure of the Defendant to respond or pay its mandated share of fees, the ICC
Secretariat therefore terminated the Arbitration proceedings and closed the file as of
17
18 February 26*, 2024.
19 refusal to respond or react to
17. The Defendant's to pay its share of arbitration costs, its failure
20
the February 15*, 2024 Request for Arbitration, and lack of response to the ICC Secretariat
21
has caused the ICC Arbitration proceedings, which was confirmed by the ICC on February
22
16*, to be terminated, and an additional Arbitration proceeding is now impossible without the
23
24 cooperation and participation of the Defendant.
25 18. pursuant to Section 9.4 of the and the fact that ICC Arbitration has
Therefore, Agreement,
26
been attempted and is now unavailable, jurisdiction and venue falls to the civil courts of New
27
York County, New York, and jurisdiction has been properly established.
28
19. Beyond the fact statements recited above which argue for proper jurisdiction in New York,
5
COMPLAINT FOR DAMAGES - Char vs. Central Park Residence LLC
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2
and the Agreement's Section 9.4 assigning jurisdiction to New York, the Agreement's own
3
law clause in Section 9.1 supports court jurisdiction of this dispute, even taking
governing
4
into account an arbitration clause, as set forth by the 2009 Georgian Law on Arbitration. The
5
6 2009 Law stipulates that Plaintiffs refer contract disputes to court, even with the presence
may
of an arbitration clause, and courts may not dismiss complaints sua sponte based on the mere
8
presence of an arbitration clause. Instead, courts must assign a specific period of time
9
(usually, 10 days) for the Defendant/Respondent to file a motion to object to jurisdiction. If
the objection is not made within the stipulated time period, the dispute may proceed in court,
11
12 and the Defendant/Respondent may have waived its right to arbitrate. (The International
13 Committee" - Page
Bar Association, "Arbitration Guide: IBA Arbitration 8, Article
14
last modified April Ihttps://www.ibanetorg/document?id=IBA-Georgia-
IV(ii), 2022,
15
Arbitration-Guide-Apr-2022D
20. In addition to the 2009 Georgian Law on Arbitration discussed above, which is apropos for
17
18 the instant case due to the choice of law clause of Section 9.1, New York case precedent also
19
supports proper jurisdiction for the Court (and the issuance of default judgments) with
20 Defendants'
contract disputes: even in the presence of an arbitration clause, following failure
21
to answer or appear. (Crowdpay US Inc. v. Midnight Gaming Corp. (a/k/a McGraw Inc.),
22
2019 N.Y. Misc. LEXIS 389 (Sup. Ct. N.Y. Co. Jan. 23, 2019); Charming Shoppes, Inc. v.
23
24 Oberling Constr. Inc., 186 Misc.2d 293, 297, 717 N.Y.S.2d 860, 2000 N.Y. Misc. LEXIS
25 471 (Sup. Ct. Monroe Co. 2000).
26
21. On the procedural side, pursuant to the provisions set forth in Article 5, Section 501 of the
27
New York Civil Practice Law and Rules (CPLR), this Court is the proper venue for
28
adjudicating the disputes arising from the dispute between the Plaintiff and the Defendant.
6
COMPLAINT FOR DAMAGES - Char vs. Central Park Residence LLC
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CPLR New York State recognizes and enforces contractual provisions that pre-
Under § 501,
3
emptively fix the place of trial. In this case, the Parties entered into a binding Agreement,
4
5 which explicitly stipulates the civil courts of New York as the designated jurisdiction for any
6 disputes arising from or related to the contract. The dispute resolution clause of the
Agreement that fixes the venue for disputes, as per CPLR § 501, should be honored and
8
upheld. Moreover, the agreement to fix the place of trial in New York was made prior to the
9
commencement of this action, as required under the statute. This pre-litigation clause on
Parties'
venue is a clear and unequivocal expression of the mutual intent and understanding
11
12 regarding the appropriate forum for resolving their disputes.
13 Parties'
22. The Plaintiff also invokes the enforceability of the forum clause in the Agreement's
14
Section 9.4; in that it aligns with the principles set forth in Brooke Group Ltd. v. JCH
15
488,"
Syndicate 87 N.Y 2d 530 (1996). In this case, the New York Court of Appeals
recognized that forum selection clauses are prima facie valid and enforceable unless proven to
17
18 be unreasonable or unjust.
19 of
23. While reiterating the above paragraphs, the Civil Branch of the Supreme Court of the State
20
New York, New York County, also possesses subject matter and personal jurisdiction over
21
Central Park Residence LLC, a Georgian entity, in light of the fact that this Defendant
22
explicitly signed, notarized, and registered the Agreement, where Section 9.4 of said
23
24 agreement obligates them to submit to the jurisdiction of the Civil Courts of New York as the
25 venue and forum of dispute resolution the failure of mediation and to
following inability
26
arbitrate.
27
24. Georgia is a member of the Hague Conference on Private International Law (the HCCH), and
28
is also a signatory to the Hague Convention of November 15*, 1965 on the Service Abroad of
7
COMPLAINT FOR DAMAGES - Char vs. Central Park Residence LLC
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Judicial and Extrajudicial Documents in Civil or Commercial Matters. International service of
3
process is substantiated by the provisions of Article 10(a) of the 1965 Convention, which
4
permits service of process via postal mail. The Republic of Georgia has not registered any
5
6 objections to Article 10(a), thereby they have consented to and enabled effective service of
process in this manner. Therefore, the Supreme Court of the State of New York is a suitable
8
forum for adjudicating disputes involving parties bound by international conventions to which
9
both the United States and Georgia are signatories. (Exhibit E)
25. Restating all of the above, under Section 9.4 of the Agreement, and international
11
12 commitments and conventions, the Civil Branch of the Supreme Court of the State of New
13
York, New York County has proper venue and jurisdiction.
14
15
THE PARTIES
16
"Plaintiff"
26. The Plaintiff, Seth Char (the or the "Seller") is a U.S. Citizen and dual resident of
17
18 Honolulu, Hawaii, and Tbilisi, Georgia. Mr. Char is an individual entrepreneur who entered
19
into business with Central Park Residence LLC and its owners in good faith and with good
20
intentions to follow their mutual Agreement into a successful conclusion.
21
Defendant"
27. The Defendant, Central Park Residence LLC (the "Primary or the "Buyer") is a
22
Georgian Limited Liability Company (ID# 402257035) formed under the laws of the
23
"Nika"
24 Republic of Georgia. (Exhibit F1) Nikoloz Merabishvili, a Georgian citizen, is a
25 beneficial
Preview
FILED: NEW YORK COUNTY CLERK 04/08/2024 05:30 PM INDEX NO. 651821/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/08/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x--------------------------------------------------------------------------------x SUMMONS Index Number: // Date Index Number Purchased: , 2024 Plaintiff(s): SETH CHAR - against - Defendant(s): CENTRAL PARK RESIDENCE LLC x-------------------------------------------------------------------------------x To the Person(s) Named as Defendant(s) above: PLEASE TAKE NOTICE THAT YOU ARE SUMMONED to answer the complaint of the plaintiff(s) herein and to serve a copy of your answer on the plaintiff(s) 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. Signature: Dated: 2024 Print Name: SETH CHAR Address and Telephone Number: SETH CHAR 98-18_01 KILEKA P;AGE, AIEA, HAWAII 96701 USAJ (731) 393-1280 Defendant(s) Address: CENTRAL PARK RESIDENCE LLC DIDUBE DISTRICT, DIGOMI MASSIVE, V QUARTER, BUILDING 19, APARTMENT 9 TBILISI REPUBLIC OF GEORGIA Venue: Plaintiff(s) designate(s) New York County as the place of trial. The basis of this designation is: [ ] Plaintiff's residence in New York County [ ] Defendant's residence in New York County [X] Other [See CPLR Article 5]: Venue and dispute resolution clause in contract between the Plaintiff and Defendants (NY CPLR § 501 (2022)) 1 of 20 FILED: NEW YORK COUNTY CLERK 04/08/2024 05:30 PM INDEX NO. 651821/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/08/2024 1 2 SETH CHAR 3 98-1801 KILEKA PLACE 4 5 AIEA, HAWAII 96701 6 (731)-393-1280 7 8 SETH CHAR, IN PRO PER 9 THE SUPREME COURT OF THE STATE OF NEW YORK 10 11 COUNTY OF NEW YORK 12 SETH CHAR Index No. ___ // Date of Index Payment: __. Plaintiff, 13 COMPLAINT FOR: vs. 14 BREACH OF CONTRACT CENTRAL PARK RESIDENCE LLC 15 FRAUDULENT MISREPRESENTATION Defendant. 16 BAD FAITH 17 BREACH OF THE COVENANT OF GOOD 18 FAITH AND FAIR DEALING 19 NEGLIGENT MISREPRESENTATION 20 INTERFERENCE WITH CONTRACTUAL RELATIONS 21 UNJUST ENRICHMENT 22 23 24 INTRODUCTION 25 1. On December 23rd, 2022, I, Seth Char, entered into an English language prevailing 26 Agreement," Agreement (the "Share Pre-Sale see Exhibit A; hereinafter referred to as "the 27 Agreement") with Central Park Residence LLC concerning the future sale of my company, 28 Iconia Capital LLC. The Agreement required Central Park Residence LLC to perform certain 1 COMPLAINT FOR DAMAGES - Char vs. Central Park Residence LLC 2 of 20 FILED: NEW YORK COUNTY CLERK 04/08/2024 05:30 PM INDEX NO. 651821/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/08/2024 1 2 construction works (Sections 5.3 and 5.4), and deliver financial payments (Sections 3.2.1, 3 3.2.2, and 3.2.3), within specified deadlines. The Agreement also required that the main share 4 5 purchase contract for the sale of Iconia Capital LLC be completed by April 5th, 2023 (Section 6 5.5). 7 2. Central Park Residence LLC is a fraudulent shell entity, whose true beneficial owners and 8 controlling parties include the principals of Demax Group LLC: Nika Merabishvili, Giorgi 9 Merabishvili, and Levan Shelia. 11 3. Central Park Residence LLC has willfully failed to perform the required construction works, 12 has failed to deliver required payments, and has failed to complete the main share purchase 13 contract by the agreed-upon deadlines. In addition, they have failed to fulfill their obligations 14 under the Agreement as of today's date. 15 4. Under Section 7.3 of the Agreement, unilateral termination of the Agreement is permissible in case of breaches by the other party. In order to terminate the Agreement unilaterally, the 17 18 aggrieved party must send a written notification, with a reasonable time period for the 19 period," breaching party to respond. A Notice of Termination, with a 10 day "grace was sent 20 to Central Park Residence LLC to their official e-mail, written in Section 10.1 of the 21 Agreement, on June 23rd, 2023. In addition, courtesy copies of the Notice of Termination 22 were sent to Central Park Residence LLC's legal place of business multiple times afterwards 23 24 via recorded and tracked postal mail. Following the expiration of the 10 day period, Central 25 Park Residence LLC failed to respond to the Notice, nor took any actions to fulfill their 26 contract obligations in breach. 27 Right" 5. As a result of the Agreement, under Section 1.2, a "Pre-Emptive Ownership obligation 28 on the shares of Iconia Capital LLC was registered at the National Public of Georgia, Registry 2 COMPLAINT FOR DAMAGES - Char vs. Central Park Residence LLC 3 of 20 FILED: NEW YORK COUNTY CLERK 04/08/2024 05:30 PM INDEX NO. 651821/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/08/2024 1 2 which acts as a lien on the company, effectively immobilizing it and preventing its sale and 3 operation to, and with, other partners, investors, and/or buyers (Exhibit B). This ongoing 4 situation has caused significant financial, time, and reputational damages to myself, the owner 5 6 of Iconia Capital LLC, who seeks to resume operations of the company, and/or sell the company to a new buyer/investor. To this date, Central Park Residence LLC and its beneficial 8 "Nika" owner and controlling party, Nikoloz Merabishvili, have refused to remove this lien on 9 Iconia Capital LLC, while also refusing to partially or fully abide by the terms of the Agreement. 11 12 6. Therefore, due to the gross violations of contract by Central Park Residence LLC and its 13 controlling beneficiaries, the Agreement has been unilaterally terminated via the June 23d, 14 Right" 2023 Notice of Termination. (Exhibit J) Following this, the "Pre-Emptive Ownership 15 lien on the shares of Iconia Capital LLC must be abolished immediately, and financial compensation from the Defendant must be paid. 17 18 19 JURISDICTION AND VENUE 20 7. This action arises out of Central Park Residence LLC's breach of its contractual and other 21 obligations to the Plaintiff, as well as other violations. 22 8. Under Section 9.4 of the Agreement, which was signed and executed by Seth Char and 23 24 Central Park Residence LLC, notarized, and registered at the National Public Registry of 25 the Parties agreed to the following: for the ICC Court Georgia, jointly "If, any reason, of 26 Arbitration is unavailable, the parties may instead refer any dispute that cannot be resolved 27 USA." through mediation/negotiation to the civil courts of New York, 28 9. Mediation and negotiations have failed with Central Park Residence LLC and its beneficial 3 COMPLAINT FOR DAMAGES - Char vs. Central Park Residence LLC 4 of 20 FILED: NEW YORK COUNTY CLERK 04/08/2024 05:30 PM INDEX NO. 651821/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/08/2024 1 2 owners and representatives via multiple discussions (all of which have ended in refusals to 3 cooperate), letters (including their willful ignorance of the June 23d, 2023 Notice of 4 Termination), and even arbitration hearing requests, which were formally requested of Central 5 6 Park Residence LLC the Georgian governmental body, the National Public by Registry (please refer to attached Exhibits C1, C2, C3, and C4). Concerning the latter offer of non- 8 court arbitration, Central Park Residence LLC and its officers and representatives refused to 9 participate or attend, despite being ordered to three separate times in the month of September 11 2023 by the National Public Registry. In addition, Central Park Residence LLC has ceased all 12 official communications as of August 2023 - via their official e-mail address and also via 15*, 13 postal mail. 14 10. Following this, pursuant to Section 9.3 of the Agreement, a Request for Arbitration at the 15 ICC Court of Arbitration in Paris, France was filed against Central Park Residence LLC by the Plaintiff on February 15*, 2024. The Arbitration Request was confirmed by 17 18 the ICC on February 16*, 2024 and assigned a case reference number: 28457/HBH. In 19 addition, the ICC Secretariat confirmed the Arbitration had officially commenced on the date 20 of receipt of the Request, which was February 15*. (Exhibit D1) 21 11. Pursuant to the 2021 ICC Rules of Arbitration, the Plaintiff and his legal counsel served the 22 Request for Arbitration to Central Park Residence LLC at its official registered legal address 23 24 on February 15*, 2024 via electronic mail, and then on February 16*, 2024 via hardcopies 25 sent certified postal (Exhibit by mail. D2) 26 12. Under Section 9.5 of the Agreement between the Parties, each Party is liable to pay for its 27 own share of Arbitration fees and costs. Following this, along with the submitted February 28 15*, 2024 Request for Arbitration, the Plaintiff requested that the Defendant Central Park 4 COMPLAINT FOR DAMAGES - Char vs. Central Park Residence LLC 5 of 20 FILED: NEW YORK COUNTY CLERK 04/08/2024 05:30 PM INDEX NO. 651821/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/08/2024 1 2 Residence LLC pay for its share of the initial arbitration costs to continue the arbitration 3 proceedings. 4 5 13. Central Park Residence LLC has failed to respond to the Request for Arbitration, the request 6 for payment of its share of arbitration costs, and failed to respond or react in any way to the Plaintiff or the ICC Secretariat. 8 14. On February 16*, 2024, through citing Article 4(4) of the 2021 ICC Rules of Arbitration, the 9 ICC Secretariat informed the Plaintiff that the fees to continue the Arbitration proceedings were due in 10 days from the date of its letter of receipt of the arbitration request. 11 12 15. On February 26*, 2024, the deadline for the payment of Arbitration costs had passed, and the 13 Defendant Central Park Residence LLC failed to pay its share of costs for the Arbitration, and 14 failed to react or respond in any way. 15 16. Due to the failure of the Defendant to respond or pay its mandated share of fees, the ICC Secretariat therefore terminated the Arbitration proceedings and closed the file as of 17 18 February 26*, 2024. 19 refusal to respond or react to 17. The Defendant's to pay its share of arbitration costs, its failure 20 the February 15*, 2024 Request for Arbitration, and lack of response to the ICC Secretariat 21 has caused the ICC Arbitration proceedings, which was confirmed by the ICC on February 22 16*, to be terminated, and an additional Arbitration proceeding is now impossible without the 23 24 cooperation and participation of the Defendant. 25 18. pursuant to Section 9.4 of the and the fact that ICC Arbitration has Therefore, Agreement, 26 been attempted and is now unavailable, jurisdiction and venue falls to the civil courts of New 27 York County, New York, and jurisdiction has been properly established. 28 19. Beyond the fact statements recited above which argue for proper jurisdiction in New York, 5 COMPLAINT FOR DAMAGES - Char vs. Central Park Residence LLC 6 of 20 FILED: NEW YORK COUNTY CLERK 04/08/2024 05:30 PM INDEX NO. 651821/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/08/2024 1 2 and the Agreement's Section 9.4 assigning jurisdiction to New York, the Agreement's own 3 law clause in Section 9.1 supports court jurisdiction of this dispute, even taking governing 4 into account an arbitration clause, as set forth by the 2009 Georgian Law on Arbitration. The 5 6 2009 Law stipulates that Plaintiffs refer contract disputes to court, even with the presence may of an arbitration clause, and courts may not dismiss complaints sua sponte based on the mere 8 presence of an arbitration clause. Instead, courts must assign a specific period of time 9 (usually, 10 days) for the Defendant/Respondent to file a motion to object to jurisdiction. If the objection is not made within the stipulated time period, the dispute may proceed in court, 11 12 and the Defendant/Respondent may have waived its right to arbitrate. (The International 13 Committee" - Page Bar Association, "Arbitration Guide: IBA Arbitration 8, Article 14 last modified April Ihttps://www.ibanetorg/document?id=IBA-Georgia- IV(ii), 2022, 15 Arbitration-Guide-Apr-2022D 20. In addition to the 2009 Georgian Law on Arbitration discussed above, which is apropos for 17 18 the instant case due to the choice of law clause of Section 9.1, New York case precedent also 19 supports proper jurisdiction for the Court (and the issuance of default judgments) with 20 Defendants' contract disputes: even in the presence of an arbitration clause, following failure 21 to answer or appear. (Crowdpay US Inc. v. Midnight Gaming Corp. (a/k/a McGraw Inc.), 22 2019 N.Y. Misc. LEXIS 389 (Sup. Ct. N.Y. Co. Jan. 23, 2019); Charming Shoppes, Inc. v. 23 24 Oberling Constr. Inc., 186 Misc.2d 293, 297, 717 N.Y.S.2d 860, 2000 N.Y. Misc. LEXIS 25 471 (Sup. Ct. Monroe Co. 2000). 26 21. On the procedural side, pursuant to the provisions set forth in Article 5, Section 501 of the 27 New York Civil Practice Law and Rules (CPLR), this Court is the proper venue for 28 adjudicating the disputes arising from the dispute between the Plaintiff and the Defendant. 6 COMPLAINT FOR DAMAGES - Char vs. Central Park Residence LLC 7 of 20 FILED: NEW YORK COUNTY CLERK 04/08/2024 05:30 PM INDEX NO. 651821/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/08/2024 1 2 CPLR New York State recognizes and enforces contractual provisions that pre- Under § 501, 3 emptively fix the place of trial. In this case, the Parties entered into a binding Agreement, 4 5 which explicitly stipulates the civil courts of New York as the designated jurisdiction for any 6 disputes arising from or related to the contract. The dispute resolution clause of the Agreement that fixes the venue for disputes, as per CPLR § 501, should be honored and 8 upheld. Moreover, the agreement to fix the place of trial in New York was made prior to the 9 commencement of this action, as required under the statute. This pre-litigation clause on Parties' venue is a clear and unequivocal expression of the mutual intent and understanding 11 12 regarding the appropriate forum for resolving their disputes. 13 Parties' 22. The Plaintiff also invokes the enforceability of the forum clause in the Agreement's 14 Section 9.4; in that it aligns with the principles set forth in Brooke Group Ltd. v. JCH 15 488," Syndicate 87 N.Y 2d 530 (1996). In this case, the New York Court of Appeals recognized that forum selection clauses are prima facie valid and enforceable unless proven to 17 18 be unreasonable or unjust. 19 of 23. While reiterating the above paragraphs, the Civil Branch of the Supreme Court of the State 20 New York, New York County, also possesses subject matter and personal jurisdiction over 21 Central Park Residence LLC, a Georgian entity, in light of the fact that this Defendant 22 explicitly signed, notarized, and registered the Agreement, where Section 9.4 of said 23 24 agreement obligates them to submit to the jurisdiction of the Civil Courts of New York as the 25 venue and forum of dispute resolution the failure of mediation and to following inability 26 arbitrate. 27 24. Georgia is a member of the Hague Conference on Private International Law (the HCCH), and 28 is also a signatory to the Hague Convention of November 15*, 1965 on the Service Abroad of 7 COMPLAINT FOR DAMAGES - Char vs. Central Park Residence LLC 8 of 20 FILED: NEW YORK COUNTY CLERK 04/08/2024 05:30 PM INDEX NO. 651821/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/08/2024 1 2 Judicial and Extrajudicial Documents in Civil or Commercial Matters. International service of 3 process is substantiated by the provisions of Article 10(a) of the 1965 Convention, which 4 permits service of process via postal mail. The Republic of Georgia has not registered any 5 6 objections to Article 10(a), thereby they have consented to and enabled effective service of process in this manner. Therefore, the Supreme Court of the State of New York is a suitable 8 forum for adjudicating disputes involving parties bound by international conventions to which 9 both the United States and Georgia are signatories. (Exhibit E) 25. Restating all of the above, under Section 9.4 of the Agreement, and international 11 12 commitments and conventions, the Civil Branch of the Supreme Court of the State of New 13 York, New York County has proper venue and jurisdiction. 14 15 THE PARTIES 16 "Plaintiff" 26. The Plaintiff, Seth Char (the or the "Seller") is a U.S. Citizen and dual resident of 17 18 Honolulu, Hawaii, and Tbilisi, Georgia. Mr. Char is an individual entrepreneur who entered 19 into business with Central Park Residence LLC and its owners in good faith and with good 20 intentions to follow their mutual Agreement into a successful conclusion. 21 Defendant" 27. The Defendant, Central Park Residence LLC (the "Primary or the "Buyer") is a 22 Georgian Limited Liability Company (ID# 402257035) formed under the laws of the 23 "Nika" 24 Republic of Georgia. (Exhibit F1) Nikoloz Merabishvili, a Georgian citizen, is a 25 beneficial