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Angelo Ramunni, who is the chief financial officer for Cabo and was most directly involved in the day-to-day authorization of payments and monitoring of sales, testified that he owns three businesses, two, with De Simone, whom he has known for 35 years.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.Plaintiff testified that he observed stacks of cash in a safe in a locked basement office, to which he also had the combination, and that he had regularly accessed such cash to pay bartenders and vendors, as instructed by Ramunni.Plaintiff called both individual defendants on his direct case.
Plaintiff testified that he repeatedly asked for his 16.67% share of the profits, but was told defendants were going to recoup their investment first.
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.
While he paid taxes on the salary he received by check, he did not pay taxes on the cash and there is no documentation of such cash payments. Plaintiff described Ramunni as in charge of financial matters and the one to whom he most frequently spoke about his share of profits and the opportunity to review the books of Cabo.
Plaintiff testified that De Simone “oversaw” the dining room, but only appeared at the restaurant, for twenty minutes, three or four times a week.
The complaint originally pleaded ten causes of action, including, pursuant to Business Corporation Law (BCL) § 624, for inspection of books and records and financial statements (the first and second causes of action), and an equitable accounting (the fourth and ninth causes of action) which were dismissed, without opposition, upon defendants' motion for summary judgment, by Order dated June 28, 2013.