IFILED: NEW YORK COUNTY CLERK 02/14/20121

NYSCEF DOC. NO.1

INDEX NO. 650407/2012 RECEIVED NYSCEF: 02/14/2012

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK RICHARD J. TIENKEN, ROBERT D. WACHS, and COMIC STRIP PROMOTIONS, INC., Plaintiffs, - againstBRENT STERLING NEMETZ, ABBY RUSSELL, and LETTERBO)( PICTURES, INC., Defendants.

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Index No. Date Purchased: SUMMONS Venue is placed in NEW YORK COUNTY based on the residences of the parties

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TO THE ABOVE NAMED DEFENDANT: YOU ARE HEREBY SUMMONED and required to serve upon plaintiffs attorneys an answer to the complaint in this action within twenty (20) days after the service of this summons, exclusive of the day of service, or within thirty days (30) after service is complete if this summons is not personally delivered to you within the State of New York. In case of your

failure to answer, judgment will be taken against you by default for the relief demanded in the Complaint. Dated: New City, New York February 14,2012 MONTALBANO, CONDON & FRANK, P.C.

By:-j!>,,;;f---=~------=~=:--+-.!...;:....:::.....:::..--~=--J hn E. Finnegan Atto n s for Plaintiffs Rich d J. Tienken, Robert D. Wachs, and Comic Strip Promotions, Inc. 67 North Main Street - POBox 1070 New City, New York 10956-8070 (845) 634-7010 Defendants' Addresses: (Set forth on Page 2 hereof)

Letterbox Pictures, Inc. 333 2nd Street Greenport, NY 11944 Brent Sterling Nemetz c/o Letterbox Pictures, Inc. 407 Park Avenue South, Ste 23A New York, NY 10016 Abby Russell c/o Letterbox Pictures, Inc. 407 Park Avenue South, Ste 23A New York, NY 10016

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------RICHARD J. TIENKEN, ROBERT D. WACHS, and COMIC STRIP PROMOTIONS, INC., Plaintiffs, - againstBRENT STERLING NEMETZ, ABBY RUSSELL, and LETTERBOJ( PICTURES, INC., Defendants. ---------------------------------------------------------------J( RICHARD 1. TIENKEN, ROBERT D. WACHS, and COMIC STRIP PROMOTIONS, INC., by their attorneys, Montalbano, follows: NATURE OF THE ACTION 1. This is an action to prohibit the Defendants' use of materials provided by the Condon & Frank, P.C., for their complaint, allege as J( Index No. COMPLAINT

Plaintiffs pursuant to an Agreement dated April 30, 2009 (the "Agreement"). 2. Said Agreement was entered into by the parties to allow exclusive rights and

access to Defendants to direct and produce a documentary film with the working title "Eat, Drink, Laugh" about the history of the Plaintiffs' legendary nightclublbar "The Cornie Strip." 3. 4. A true and correct copy of the Agreement is annexed hereto as Exhibit 1. The Agreement purported to provide Defendants exclusive rights and access to and celebrity contacts to business known as

Plaintiffs' materials, including all archival video, still photographs, assist in production.

5. production. 6. Agreement. 7.

In exchange, Defendants were required to work with Plaintiffs in all phases of

To date, Plaintiffs

have fully performed

all of their obligations

under the

Conversely, without reason or justification,

Defendants have brazenly breached

the Agreement as set forth further below. 8. Moreover, Defendants have ignored virtually all of Plaintiffs requests to remedy

same and to avoid the necessity of the instant action. 9. By reason of the foregoing, Plaintiffs respectfully request that this Court enter a against Defendants restraining them from using, in any manner, the

permanent injunction

materials provided by the Plaintiffs pursuant to the Agreement and which have wrongfully been withheld from them, and for, inter alia, the return of same,

THE PARTIES
10. Richard J. Tienken ("Tienken") is a resident of the Town of Hawthorne, State of

New Jersey, and was at all times relevant hereto the President and fifty percent shareholder of Comic Strip Promotions, Inc. 11. Robert D. Wachs ("Wachs") is a resident of the City, County, and State of New

York, and was at all times relevant hereto a fifty percent shareholder of Comic Strip Promotions, Inc. 12. Comic Strip Promotions, Inc. ("Comic Strip Promotions") was and is a

corporation, duly organized and existing under the laws of the State of New York, and maintains its principal office at 1568 Second Avenue in the City, County and State of New York.

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13.

Comic Strip Promotions operates the legendary nightc1ublbar business commonly

known as "The Comic Strip" located at 1568 Second Avenue in New York City. 14. Upon information and belief, Brent Sterling Nemetz ("Nemetz") is a resident of

the State of New York, and was at all times relevant hereto a partner/producer of Letterbox Pictures, Inc. 15. Upon information and belief, Abby Russell ("Russell") is a resident of the State of

New York, and was at all times relevant hereto a partner/producer of Letterbox Pictures, Inc. 16. Upon information and belief, Letterbox Pictures, Inc. ("Letterbox Pictures") was

and is a corporation, duly organized and existing under the laws of the State of New York, and maintains its principal office at 333 2nd Street, Greenport, New York, 11944. 17. Upon information and belief, Letterbox Pictures is a production company that

produces reality and lifestyle television. UNDERLYING FACTS 18. that time. 19. Originally, The Comic Strip featured comics, singers, magicians and novelty acts, The Comic Strip was founded in June 1976 and has remained in operation since

but subsequently transitioned to showcase comedy acts only. 20. Numerous comedic stars such as Jerry Seinfeld, Chris Rock, Eddie Murphy, and

Adam Sandler began their careers by performing at The Comic Strip. 21. As a result of its rich history of famous performers, The Comic Strip is a highly

regarded venue in the industry and is regularly referred to in pop media, television, and radio.

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22.

In April 2009, Mr. Tienken and Jeffrey Gurian, a comedic writer, began co-

writing a book and audio CD that featured interviews with celebrity stand-up comedians linked to The Comic Strip. 23. Upon information and belief, around that time, Mr. Gurian separately contacted

Letterbox Pictures partners/producers Nemetz and Russell regarding the possible production of a documentary of The Comic Strip as it approached is 35th anniversary. 24. On April 30, 2009, Mr. Tienken, on behalf of Comic Strip Promotions, entered

into the Agreement with Letterbox Pictures annexed hereto as Exhibit 1. 25. Said Agreement purported to allow Letterbox Pictures access and rights to all

archival video, still photographs, and other relevant materials available in Comic Strip Promotions' possession for the production of the documentary. 26. In exchange, The Agreement required Letterbox Pictures to work with Mr.

Tienken and his team to capture the essence of the history of The Comic Strip and the influence of the club since its founding.
DEFENDANTS' BREACH OF THE AGREEMENT

27. Agreement. 28.

Plaintiffs thereafter fully performed all of their obligations and duties under said

However, Defendants, without cause or justification, continue to repeatedly

breach the Agreement. 29. From the inception of production in 2009, Defendants have refused to provide

Plaintiffs with regular updates concerning the progress of the film or the contents of same. 30. Defendants have also cut off all of Mr. Tienken and his team's right to provide

feedback on the film as it has developed.

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31.

The anticipated release date, June 2011, which was to coincide with the thirty-

fifth anniversary of the club's founding, came and went without Defendants producing a finished product. It was a material term of the parties' agreement that a documentary film be available for release in conjunction with "The Comic Strip's" thirty-fifth anniversary. 32. In or about July 2011, Mr. Wachs uncovered a teaser for the documentary

produced by Letterbox Pictures that was produced without any input andlor communication from Plaintiffs whatsoever. 33. By letter dated July 19, 2011, Mr. Wachs advised Defendants' attorney Jerold

Nemetz, Esq. of his discovery of this issue and demanded, among other things, that Letterbox Pictures "cease and desist from exhibiting or causing to be exhibited andlor distributed such trailer," as such exhibition was in violation of Plaintiffs' rights. 34. 35. 36. A true and correct copy of that letter is annexed hereto as Exhibit 2. To date, Mr. Wachs' letter has not been responded to. Upon information and belief, despite Plaintiffs' repeated requests to immediately

cease production, Defendants then submitted for consideration a trailer, or portion of a film, to the Sundance Film Festival, without any input or authorization from Plaintiffs, which submission, upon information and belief, was not accepted for inclusion in the Sundance Film Festival. 37. Upon information and belief, Defendants have also dishonestly held the film out

as a sponsored project of "Fractured Atlas," a non-profit arts service organization. 38. Upon information and belief, Defendants have solicited charitable donations

through Fractured Atlas to assist them in completing the documentary.

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39.

Apart from the negative connotation and publicity such solicitation has for "The

Comic Strip," it also is embarrassing and humiliating for Messrs. Tienken and Wachs to have their names and reputations in the industry associated with a project concerning "The Comic Strip" that is dependant on charity to bring to completion. 40. Moreover, Defendants' appeal for such aid reveals that they fraudulently induced

the Plaintiffs to collaborate with Defendants by falsely representing their ability to finance the project and bring it to completion.

41.

To date, Defendants have ignored numerous demands by Plaintiffs to return all

materials furnished to them in accordance with The Agreement. 42. Defendants have likewise thwarted Plaintiffs' attempts to resolve these ongoing

issues without the need for litigation 43. As of the date of this Complaint, Plaintiffs continue to defy the demands of the videos. photographs, and likeness without consent or

Defendants and are utilizing Defendants' authorization, 44.

As a result of the foregoing, Plaintiffs now assert the following causes of action. AS AND FOR A FIRST CAUSE OF ACTION

45.

Plaintiffs repeat the allegations contained in paragraphs denominated "1" through

"44" as if set forth in full here.
46. Agreement, By reason of Plaintiffs' and failure to perform fraudulent inducement of defendants to make the that the

same, Plaintiffs are entitled to a declaration

Agreement is null and void and of no further force or effect.

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AS AND FOR A SECOND CAUSE OF ACTION 47. Plaintiffs repeat the allegations contained in paragraphs denominated "1" through

"46" as if set forth in full here. 48. By reason of the foregoing, Plaintiffs demand a permanent injunction against

Defendants, their agents or assigns, that restrains them from using Plaintiffs' materials that were provided pursuant to the Agreement, which includes, by no way of limitation, archival video and still photographs. AS AND FOR A THIRD CAUSE OF ACTION 49. Plaintiffs repeat the allegations contained in paragraphs denominated "1" through

"48" as if set forth in full here. 50. Additionally, Plaintiffs demand an inventory, accounting and the return of all

things andlor persons used in the production of the documentary "Eat, Drink, Laugh" or any other related film or project concerning "The Comic Strip," that were provided pursuant to the terms of the Agreement. This includes, without limitation: a. b. c. d. e. f. g. archival video; still photographs; persons interviewed as a result of contacts shared by Plaintiffs; patrons, employees, or other agents of the Comic Strip interviewed; and all other relevant materials. all contracts, including releases. all products consisting of or including or incorporating therein any of the materials provided by plaintiffs.

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AS AND FOR A FOURTH CAUSE OF ACTION 51. Plaintiffs repeat the allegations contained in paragraphs denominated "1" through

"50" as if set forth in full here. 52. By reason of the foregoing, Plaintiffs also demand that Defendants cease from

using the names "The Comic Strip," "Comic Strip Live" or any similar nomenclature in its production of the documentary or any subsequent documentary. AS AND FOR A FIFTH CAUSE OF ACTION 53. Plaintiffs repeat the allegations contained in paragraphs denominated "1" through

"5T~as if set forth in full here. 54. By reason of the foregoing, Plaintiffs also demand that Defendants cease

referencing, in any fashion, or using the name, portrait or picture of Richard Tienken and/or Robert D. Wachs in its production of the documentary or any subsequent documentary, or for any advertising purpose or any trade purpose, as such uses are unauthorized. WHEREFORE, Plaintiffs pray for judgment as follows: a. On the First Cause of Action, a declaration that the Agreement is null and void and of no further force or effect. b. On the Second Cause of Action, a permanent injunction restraining Defendants or their agents or assigns from using Plaintiffs' materials that were provided pursuant to the Agreement, or any product using, including or incorporating therein the materials provided by Plaintiffs; c. On the Third Cause of Action, an injunction requiring Defendants to inventory, account and return the materials that were provided by Plaintiffs pursuant to the Agreement, which includes, by no way of

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limitation, archival video and still photographs, and all materials created by or with, or which use, include or incorporate, the materials provided by Plaintiffs. d. On the Fourth Cause of Action, an injunction prohibiting Defendants from using the names "The Comic Strip," "Comic Strip Live" or any similar nomenclature in its production of the documentary or any subsequent documentary. e. On the Fifth Cause of Action, an injunction prohibiting Defendants from referencing, in any fashion, the name, portrait, picture or likeness of Richard Tienken andlor Robert D. Wachs in its production of the documentary or any subsequent documentary or for any advertising purpose or for any trade purpose. f. On the Fourth and Fifth Causes of Action, a direction that Defendants account to the Plaintiffs all income and profits gained from the unauthorized use of the provided materials or through the commercial exploitation of any documentary film based on "The Comic Strip." g. For such other and further relief in favor of Plaintiffs as to this Court seems just and proper.

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Dated:

New City, New York February 14,2012 MONTALBANO, CONDON & FRANK,

r.c,

John E. Finnegan Attorn y for Plaintiffs Richar J Tienken, Robert D. Wachs, and Comic Strip Promotions, Inc. 67 North Main Street - POBox 1070 New City, New York 10956-8070 (845) 634-7010

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Index No.:

Year:

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

RICHARD 1. TIENKEN, ROBERT D. WACHS, and COMIC STRIP PROMOTIONS, INC., Plaintiffs, - againstBRENT STERLING NEMETZ, ABBY RUSSELL, and LETTERBOX PICTURES, INC., Defendants,

SUMMONS AND COMPLAINT
MONTALBANO, CONDON & FRANK, r.c, Attorneys for Plaintiffs Richard J. Tienken, Robert D. Wachs, and Comic Strip Promotions, Inc. 67 NORTH MAIN STREET P.O. BOX 1070 NEW CITY, NEW YORK 10956·8070 (845) 634-7010 Ph. (845) 634·8993 Fax

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Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annex ar not frivolo Dated: To: Attorneys for: Service of a copy of the within Dated: is hereby admitted. February 14, 20 12 Signature-:+-+,::::--=-c~--,-t--'-.-r-P-'<=':"--'="""'~~~~

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PLEASE TAKE NOTICE
[ }

Attorney{s) for

NOTICE OF ENTRY [] NOTICE OF SETTLEMENT Dated:

that the within is a hue copy of a entered in the office of the clerk of the within named Court on that a of which the within is a true copy will be presented for settlement to the one of the judges of the within named Court at on

at 9:30 a.m.

To:

MONTALBANO, CONDON & FRANK, P.e. Attorneys for Plaintiffs Richard J. Tienken, Robert D. Wachs, and Comic Strip Promotions, Inc. 67 North Main Street P.O. Box 1070 New City, NY 10956-8070 (845) 634-7010

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