Rochester, New York THE GLENNON L^W FIJ^ 1 p«.

STATE OF NEW YORK
SUPREME COURT, MONROE COUNTY
KRITERIUM, LLC,
SUMMONS
Plaintiff,
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MONRO MUFFLER BRAKE, INC.,
Defendant.
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve
a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of
appearance, on the plaintiffs' attomey(s) within 20 days after service of this summons, exclusive
ofthe day of service, where service is made by delivery upon you personally within the state, or
within 30 days after completion of service where service is made in any other manner. In case of
your failure to appear or answer,judgment will be taken against you by default for the relief
demanded in the complaint.
Plaintiff designates Monroe County as the place of trial.
The basis ofthe venue is defendant's place of business.
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Dated: October 23, 2014
Rochester, New York
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THE GLENNON L^W FIJ^
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By:
Peter J. Gldnnon, Esq.
Attorney for Plaintiff
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160 Linden Oaks
Rochester, New York 14625
Tel: 585-210-2150
[email protected]
STATE OF NEW YORK
SUPREME COURT, MONROE COUNTY
KRITERIUM, LLC,
Plaintiff,
COMPLAINT
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INDEX N0.:jtj'H9L|^
MONRO MUFFLER BRAKE, INC.,
Defendant.
The plaintiff, Kriterinm, LLC ("Kriterium"), by its attorney, Peter J. Glennon,
Esq. of The Glennon Law FirmP.C., as andfor its Complaint against defendant, Monro
MufflerBrake, Inc. ("defendant" or "Monro"), alleges as follows:
PRELIMINARY STATEMENT
1.
In this action, Kriterium seeks damages for defendant'sbreach of contract,
conversion of Kriterium's property, andunjust enrichment arising from defendant's
failure to perform its obligations under certain contracts, invoices, and other agreements
(collectively, "agreements") with Kriterium, related Kriterium's provision of certain
information technology services and equipment to defendant.
2.
Accordingly, Kriterium seeksjudgment in its favor in an amountto be
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determined at trial, but in no event less than $100,000, plus interest.
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3.
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Jurisdiction and Venue
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Thejurisdiction of this Court is invoked pursuant to New York Civil
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4.
Venue is proper beforethis Courtpursuantto C.P.L.R §503 because
defendant maintains executive offices in this County, a substantial portion of the
transactions and wrongs complained of hereinoccurred in this County, and Defendant
has received substantial compensation in this County by doing business hereand
engagingin numerous activitiesthat have had an effect in this County.
Parties
5.
Plaintiff Kriterium is a limited liability company formed and existing
under the laws of the State of New York, and has a principal place of business
located at 595 Blossom Road, Suite 220, Rochester, New York 14610.
6.
Upon information and belief. Defendant Monro is a corporation duly
organized and existing under the laws ofthe State ofNew York, with its principal
executive offices at 200 Holleder Parkway, Rochester, New York 14615.
Background
7.
Kriterium is a provider of technology management services and provides
businesses, including Monro, with various information technology ("IT") services and
equipment, including, among other things, network design, installation, administration,
hardware and software sales, premise writing, voice over internet protocol telephony, and
related managed services.
8.
Upon information and belief, Monro operates numerous locations
throughout the United States that provide automotive undercar repair and tire services
under the brand names of Monro Muffler Brake and Service, Mr. Tire, Tread Quarters
Discount Tires, Autotire, Tire Warehouse, Tire Bam, and Towery's Tire and Auto
Care. Currently, Monro operates 953 locations in 22 states and the District of
Columbia. The locations provide a full range of services for brake systems, steering
and suspension systems, tires, exhaust systems, and many vehicle maintenance
services.
9.
Beginning in or around 2006, Monro contracted with Kriterium for
various managed services (including periodic monitoring of information technology
equipment and hardware for security compliance), licenses, software, and equipment
pursuantto the agreements (collectively, the "services").
10.
Kriterium performed its obligations tmder the agreement, including
providing IT services and IT equipment, as well as providing various licenses for
Monro's use with the required IT equipment.
11.
In exchangefor Kriteriumperformingthe services, Monrowas
obligated to pay Kriterium pursuant to the agreements.
12.
However, Monro has failed to perform as obligated and failed to pay
Kriterium for theservices it provided, resulting in Kriterium being damaged in an
amount no less than $100,000.
13.
Upon information and belief, Monro knowingly failed topay Kriterium
the full amount owed for the contracted services and equipment Monro received from
Knterium for over three years. To this day, Monro stiU continues to use the equipment
from Kriterium without paying appropriate compensation to Kriterium.
FIRST CAUSE OF ACTION
Breach of Contract
14.
Knterium repeats and realleges the allegations ineach ofthe foregoing
paragraphs as iffully set forth herein.
15.
Knterium entered into a valid and legally enforceable agreements with
Monro to provide managed services, licenses, other services, and equipment inexchange
for compensation as set forth in the agreements.
16.
Knterium performed allof itsobligations under the agreements, including
the managed services, provision of licenses, and provision of ITequipment.
17.
Monro breached the agreements by failing to make full payment forthe
services provided by Kriterium and byfailing to retum to Kriterium the IT equipment it
owns, which is used by Monro.
18.
Kriterium hasinvoiced defendant for the services provided.
19.
Defendant acknowledges that it owes payments to Kriterium.
20.
Defendant willfully refuses to perform its obligations.
21.
Defendant willfully refuses to pay forthe services and IT equipment it
received from Kriterium.
22.
Defendant has acted in bad faith in its performance of its obligations under
the agreements.
23.
Defendanthas continued receiving tiie benefit ofKriterium's servicesand
equipment without paying the contractualsums owed to Kriterium.
24.
Defendant failed to pay Kriterium the full amoimt owed
under the agreements for the services and equipment received fromKfiterium.
25.
Accordingly, Kriterium has been damaged by defendant's bad faith acts
and omissions and is entitledto judgment in its favor in an amountto be determined at
trial, but in no event less than $100,000.
SECOND CAUSE OF ACTION
Conversion
26.
Knterium repeats and realleges the allegations in each ofthe foregoing
paragraphs as iffully set forth herein.
27.
Knterium has legal ownership orimmediate superior (i^t ofpossession to
the specific IT equipment (including among other things computer servers and firewalls)
as setforth in the agreements ("the IT equipment").
28.
Defendant is presently exercisingunauthorized dominionand control over
the IT equipment.
29.
Because of defendant's acts andomissions, Knterium has requested the
retum ofthe IT equipment at issue in this action.
30.
Because of defendant's acts andomissions, Kriterium has requested the
retum of the IT eqmpment at issue in this action.
29. Defendant has refused to retumthe servers to Kriterium, unlawfully
converting and assuming ownership oftliese assets.
31. Knterium has thereforebeen damaged by defendant's unlawfiil conversion in
an amountto be determined at trial, but in no eventless than $40,000.
THIRD CAUSE OF ACTION
Unjust Enrichment
32. Knterium repeats andrealleges the allegations in each of theforegoing
paragraphs as iffully set forth herein.
33.
In the alternative, Monro improperly accepted services and equipment
firom Kriterium with a value in excess of $100,000.
34.
Defendant failed to fully pay Kriterium as required by the contract forthe
services and equipment received from BCriterium.
35.
It would therefore be imjust for Monro to continue to benefit from the
unpaid services and equipmentit received from Kriterium.
36.
Accordingly, Kriterium is entitled to judgment in its favor in an amount to
bedetermined at trial, butin no event less thanthefull amount bywhich it was damaged
by Monro's unjust enrichment
Wherefore, Plaintiff Kriteriumprays for judgment in its favor as follows:
(i)
on its First CauseofAction in an amount to be determinedat trial, but in
no event less than the full amount owed to Kriterium for the licenses,
services, equipment, and managed services, plus other consequential
damages, and pre and post judgment interest;
(ii)
on its Second Cause ofAction in an amount to be determined at trial, but
in no event less than the fiill amountby whichKriterium was damaged by
defendants' unjust enrichment, plus pre and post judgment interest;
(iii)
on its Third Cause ofAction in an amount to be determined at trial, but in
no event less than the full amount by which Kriteriumwas damagedby
defendant, plus pre and post judgment interest;
(iv)
on all Causes ofAction, punitive damages for defendant's willful bad faith
conduct; and
(v)
grantingKriteriumthe costs ofthis action, including attorney's fees,
together with such other and further relief as the court deemsjust,
necessary, and proper.
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Dated: Rochester, New York
October 23,2014
THEGLENNONLA
By:
Peter J, Glerinon, Esq.
Attorneyfor Plaintiff
160 Linden Oaks
Rochester, New York 14625
Tel: 585-210-2150
[email protected]

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