Lerner et al v. Connerty, Jr.

Filing 35

ORDER denying 26 Motion to Dismiss for Failure to State a Claim. For the reasons stated herein, Defendants' motion to dismiss is denied. (Ordered by Judge Leonard D. Wexler on 9/29/2015.) (Fagan, Linda)

FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E 0 N Y

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

*

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ORDER

-against-

CV 14-5510 (LDW) (GRB)

HUGH M. CONNERTY, JR., CHRIS T.
SULLIVAN, CONSUL PARTNERS, LLC, and
BESITO, LLC,
Defendants.

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WE)(LER, District Judge:
Plaintiff, David Lerner ("Plaintiff'), brings this diversity action against the Defendants,
Hugh M. Connerty, Jr. ("Connerty"), ChrisT. Sullivan ("Sullivan"), ConSul Partners, LLC
("ConSul"), and Besito, LLC ("Besito"), alleging claims for breach of contract, promissory
estoppel, defamation, tortious interference with business relations, fraud and unjust enrichment.
The action arises out of a business relationship to develop various national restaurant concepts
that soured. Defendants move to dismiss Plaintiffs Complaint, pursuant to Federal Rule of Civil
Procedure 12(b)(6). Plaintiff opposes the motion.
As alleged in the Complaint, Plaintiff, a broker, had a long-standing relationship with
Defendant Connerty, going back more than twenty years (Compl.

~~

9-10.) Starting in 2011,

Plaintiff and Connerty began discussing building a restaurant company together and Defendant
Sullivan was brought into the venture. In 2013, Connerty and Sullivan formed ConSul. 1
(Compl.

~

14.) Throughout 2013, Plaintiff worked with Connerty and Sullivan to identify

1

Defendants Connerty and Sullivan both have a long and prosperous history in the
restaurant industry. (Compl. ~~ 11, 13.)
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*

LONG ISLAND OFFICE

DAVID LERNER,

Plaintiff,

SEP 29 2015

restaurant properties to develop. The parties ultimately decided upon Besito, a restaurant chain
that, at that time, had locations in New York and Connecticut. (Compl. ~~ 10, 14-16.) Plaintiffs
role was to acquire investors and raise capital to establish new Besito restaurants. In exchange
for his contributions, Plaintiff was to be given an equity interest in an entity known as ETDF
Partners, which owned sixty percent of ConSul. (Compl.

~~

18-21.) The Besito transaction

closed in December 2013; however, Plaintiffwas not provided an equity interest in ETDF
Partners or any other entity. (Compl. ~~50-51, 57-58.) In addition, Plaintiff has only received
partial reimbursement for the expenses he incurred in assisting Defendants in their efforts to
establish new Besito locations. (Compl. ~ 67.)
In determining the sufficiency of the Complaint, the Court assumes that all of the
allegations contained therein are true and draws all reasonable inferences in Plaintiffs favor, see
Kassner v. 2nd Ave. Delicatessen. Inc., 496 F.3d 229, 237 (2d Cir. 2007), mindful, however, that
plaintiff is required to plead enough facts "to state a claim for relief that is plausible on its face."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). Upon consideration, the Court finds that Plaintiffs Complaint is sufficient to state
a plausible claim for breach of contract, promissory estoppel, defamation, tortious interference
with business relations, fraud and unjust enrichment.
Accordingly, Defendants' motion to dismiss is denied.

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SO ORDERED:
Dated: Central Islip, New York
September 23_, 2015
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_,

s/ Leonard D. Wexler. / I
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{

'rtc)NARD D. WEXLER

United States District Judge

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