Preview
FILED: NEW YORK COUNTY CLERK 01/24/2018 05:03 PM INDEX NO. 653476/2013
NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 01/24/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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:
PETER STERN and EXPRESS TRADE CAPITAL, Index No. 653476/13
INC., : (Hagler, J.)
Plaintiffs, : AFFIRMATION OF
LON J. SEIDMAN IN
-against- : SUPPORT OF MOTION
FOR LEAVE TO AMEND
OLEG ARDACHEV, AIR CARGO SERVICES L.L.C., :
DELEX INC., DELEX AIR CARGO, LLC, a Delaware
limited liability company, and DELEX AIR CARGO, :
LLC, a Washington limited liability company,
Defendants.
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LON J. SEIDMAN, an attorney duly admitted to the courts of the State of New York,
hereby affirms the following to be true under the penalties of perjury:
1. I am a partner of Diamond McCarthy LLP, counsel to plaintiffs, and am I fully
familiar with the facts set forth below.
Plaintiffs'
This Action and the Sale of 50% Ownership in ACS
defendants'
2. This action alleges the breach of an agreement to purchase plaintiff's
50% ownership interest in a company called Air Cargo Services, LLC ("ACS").
3. The defendants claim that despite substantial evidence of a sale agreement -
the company's tax returns and from the company's outside accountant -- no
including testimony
agreement to sell 50% of ACS was ever reached.
4. The defendants claim that the plaintiff continues to own 50% of ACS.
defendants'
5. A major problem with the theory is that the defendants have arranged
it so that ACS is no longer in business, and so that a 50/0 ownership of ACS has no value.
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FILED: NEW YORK COUNTY CLERK 01/24/2018 05:03 PM INDEX NO. 653476/2013
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6. As explained below, the defendants recently revealed that they continued ACS's
business through another defendant company with substantially the same name, i.e.,defendant
Delex Air Cargo Services LLC ("Delex ACS").
7. Thus, the defendants claim that:
(a) despite substantial evidence of a sale, no sale of 50% of ACS ever took
place, and the plaintiff, therefore, continues to own 50% of ACS; and/but
(b) ACS is worthless because the defendants moved ACS's entire business to
Delex ACS.
The Deposition Evidence that Defendant Delex ACS is the Successor to ACS
8. In November, Plaintiffs conducted the deposition of ACS's former bookkeeper,
Ilana Lisichkina. Ms. Lisichkina was ACS's bookkeeper until ACS stopped conducting business
and she is now the bookkeeper for Delex ACS.
9. Ms. Lisichkina testified that Delex ACS operates the business that was previously
operated by ACS.
10. Ms. Lisichkina testified that the day after ACS stopped its business operations,
Delex ACS continued to operate ACS's business with ACS's same employees, and same
customers.
11. Defendant Ardachev, the person in control of ACS and the person now in control
of Delex ACS, was present at the deposition of Ms. Lisichkina and testified two days later that
he could not identify anything incorrect about Ms. Lisichkina's testimony. In addition, Mr.
Ardachev confirmed that Delex ACS, in fact, took over ACS's business.
12. Annexed as Exhibit A is a true and correct copy of the deposition excerpt of Ilona
Lisichkina.
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NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 01/24/2018
13. Annexed as Exhibit B is a true and correct copy of the deposition excerpt of
Defendant Oleg Ardachev.
14. Thus, there is substantial evidence that Defendant Delex ACS is the successor to
ACS. As a result, if the plaintiff never sold 50% of ACS, the plaintiff remains a 50% owner of
Delex ACS through today.
Conclusion
15. Accordingly, the proposed amended complaint asserting, as alternative claims,
successor liability against Defendant Delex ACS has substantial merit.
16. Moreover, the Defendants will not be prejudiced by the proposed amendment
because all the information concerning the successor liability claims has always been in the
possession of the defendants.
17. Annexed as Exhibit C isthe proposed amended complaint, together with a redline
showing the changes to the original complaint.
18. For the foregoing reasons, and as further explained in the accompanying
Memorandum of Law, it is respectfully submitted that the motion for leave to file the amended
complaint asserting successor liability claims against Defendant Delex ACS should be granted.
Dated: New York, New York
January 24, 2018
O J S AN
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Preview
FILED: NEW YORK COUNTY CLERK 01/24/2018 05:03 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 01/24/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------- - ----- - ---------- -- -------x : PETER STERN and EXPRESS TRADE CAPITAL, Index No. 653476/13 INC., : (Hagler, J.) Plaintiffs, : AFFIRMATION OF LON J. SEIDMAN IN -against- : SUPPORT OF MOTION FOR LEAVE TO AMEND OLEG ARDACHEV, AIR CARGO SERVICES L.L.C., : DELEX INC., DELEX AIR CARGO, LLC, a Delaware limited liability company, and DELEX AIR CARGO, : LLC, a Washington limited liability company, Defendants. ---- ------- --- --- -- -- ------- -- ---- ---- ---x LON J. SEIDMAN, an attorney duly admitted to the courts of the State of New York, hereby affirms the following to be true under the penalties of perjury: 1. I am a partner of Diamond McCarthy LLP, counsel to plaintiffs, and am I fully familiar with the facts set forth below. Plaintiffs' This Action and the Sale of 50% Ownership in ACS defendants' 2. This action alleges the breach of an agreement to purchase plaintiff's 50% ownership interest in a company called Air Cargo Services, LLC ("ACS"). 3. The defendants claim that despite substantial evidence of a sale agreement - the company's tax returns and from the company's outside accountant -- no including testimony agreement to sell 50% of ACS was ever reached. 4. The defendants claim that the plaintiff continues to own 50% of ACS. defendants' 5. A major problem with the theory is that the defendants have arranged it so that ACS is no longer in business, and so that a 50/0 ownership of ACS has no value. 1 of 3 FILED: NEW YORK COUNTY CLERK 01/24/2018 05:03 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 01/24/2018 6. As explained below, the defendants recently revealed that they continued ACS's business through another defendant company with substantially the same name, i.e.,defendant Delex Air Cargo Services LLC ("Delex ACS"). 7. Thus, the defendants claim that: (a) despite substantial evidence of a sale, no sale of 50% of ACS ever took place, and the plaintiff, therefore, continues to own 50% of ACS; and/but (b) ACS is worthless because the defendants moved ACS's entire business to Delex ACS. The Deposition Evidence that Defendant Delex ACS is the Successor to ACS 8. In November, Plaintiffs conducted the deposition of ACS's former bookkeeper, Ilana Lisichkina. Ms. Lisichkina was ACS's bookkeeper until ACS stopped conducting business and she is now the bookkeeper for Delex ACS. 9. Ms. Lisichkina testified that Delex ACS operates the business that was previously operated by ACS. 10. Ms. Lisichkina testified that the day after ACS stopped its business operations, Delex ACS continued to operate ACS's business with ACS's same employees, and same customers. 11. Defendant Ardachev, the person in control of ACS and the person now in control of Delex ACS, was present at the deposition of Ms. Lisichkina and testified two days later that he could not identify anything incorrect about Ms. Lisichkina's testimony. In addition, Mr. Ardachev confirmed that Delex ACS, in fact, took over ACS's business. 12. Annexed as Exhibit A is a true and correct copy of the deposition excerpt of Ilona Lisichkina. 2 2 of 3 FILED: NEW YORK COUNTY CLERK 01/24/2018 05:03 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 01/24/2018 13. Annexed as Exhibit B is a true and correct copy of the deposition excerpt of Defendant Oleg Ardachev. 14. Thus, there is substantial evidence that Defendant Delex ACS is the successor to ACS. As a result, if the plaintiff never sold 50% of ACS, the plaintiff remains a 50% owner of Delex ACS through today. Conclusion 15. Accordingly, the proposed amended complaint asserting, as alternative claims, successor liability against Defendant Delex ACS has substantial merit. 16. Moreover, the Defendants will not be prejudiced by the proposed amendment because all the information concerning the successor liability claims has always been in the possession of the defendants. 17. Annexed as Exhibit C isthe proposed amended complaint, together with a redline showing the changes to the original complaint. 18. For the foregoing reasons, and as further explained in the accompanying Memorandum of Law, it is respectfully submitted that the motion for leave to file the amended complaint asserting successor liability claims against Defendant Delex ACS should be granted. Dated: New York, New York January 24, 2018 O J S AN 3 3 of 3