Preview
FILED: NEW YORK COUNTY CLERK 05/04/2023 12:24 PM INDEX NO. 161105/2021
5/4/23, 10:02 AM Punch & Pedal House Mail - 19 West 21st Street-Fifth Partners LLC
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/04/2023
Joseph Foley
19 West 21st Street-Fifth Partners LLC
David Rosenbaum Tue, Sep 14, 2021 at 3:35 PM
To: Joseph Foley
Doesn’t apply. We have an agreement. It’s called the lease and it
has a provision that says that all oral communications are merged
into the document and no changes can be made unless in writing.
DAVID B. ROSENBAUM, ESQ.
BORAH, GOLDSTEIN, ALTSCHULER, NAHINS & GOIDEL P.C.
377 BROADWAY,6TH FLOOR
NEW YORK,N.Y. 10013
(PH) 212 431-1300
E-MAIL: DROSENBAUM@BORAHGOLDSTEIN.COM
FOR SETTLEMENT PURPOSES ONLY. NOT TO BE CONSTRUED AS A BONA FIDE SETTLEMENT. ONLY A
SEPARATE WRITTEN AGREEMENT EXECUTED BY THE PARTIES SHALL BE DEEMED SUCH A SETTLEMENT.
NOR SHOULD ANY COMMUNICATION FROM COUNSEL BE CONSTRUED AS A SETTLEMENT AS ONLY AN
AGREEMENT RATIFIED AND EXECUTED BY THE CLIENT SHALL BE DEEMED AN ACCEPTANCE.
From: Joseph Foley
Sent: Tuesday, September 14, 2021 3:30 PM
To: David Rosenbaum
Cc: Vijay Mehra
Subject: Re: 19 West 21st Street-Fifth Partners LLC
https://mail.google.com/mail/u/1/?ik=c6099e361c&view=pt&search=all&permmsgid=msg-f:1710907094513102757&dsqt=1&simpl=msg-f:1710907094513102757 1/4
FILED: NEW YORK COUNTY CLERK 05/04/2023 12:24 PM INDEX NO. 161105/2021
5/4/23, 10:02 AM Punch & Pedal House Mail - 19 West 21st Street-Fifth Partners LLC
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/04/2023
Although courts in a number of states have held that agreements to agree are not enforceable, such agreements are
enforceable under both New York and Delaware law. In Teachers Insurance and Annuity Association of America v. Tribune
Company, a federal court applying New York law held that a commitment letter represented a binding preliminary
commitment obligating both sides to conclude a final loan agreement upon the agreed terms by negotiating in good faith
to resolve additional terms.
Again, we will go down this route if you like. I don't need an attorney to pull up actual laws.
On Tue, Sep 14, 2021 at 3:27 PM David Rosenbaum wrote:
If you consulted a lawyer, he would advise you that an oral
statement is of no value in the face of a written document which
takes precedence. You have just advised the landlord that you
are going to anticipatorily breach the lease. That’s your choice,
but not a wise one. As I said in my letter, if you fail to remit the
rent, you will be liable for the free rent. Not a way to commence
a relationship.
Be guided accordingly.
DAVID B. ROSENBAUM, ESQ.
BORAH, GOLDSTEIN, ALTSCHULER, NAHINS & GOIDEL P.C.
377 BROADWAY,6TH FLOOR
NEW YORK,N.Y. 10013
(PH) 212 431-1300
E-MAIL: DROSENBAUM@BORAHGOLDSTEIN.COM
FOR SETTLEMENT PURPOSES ONLY. NOT TO BE CONSTRUED AS A BONA FIDE SETTLEMENT. ONLY A
SEPARATE WRITTEN AGREEMENT EXECUTED BY THE PARTIES SHALL BE DEEMED SUCH A SETTLEMENT.
NOR SHOULD ANY COMMUNICATION FROM COUNSEL BE CONSTRUED AS A SETTLEMENT AS ONLY AN
AGREEMENT RATIFIED AND EXECUTED BY THE CLIENT SHALL BE DEEMED AN ACCEPTANCE.
https://mail.google.com/mail/u/1/?ik=c6099e361c&view=pt&search=all&permmsgid=msg-f:1710907094513102757&dsqt=1&simpl=msg-f:1710907094513102757 2/4
FILED: NEW YORK COUNTY CLERK 05/04/2023 12:24 PM INDEX NO. 161105/2021
5/4/23, 10:02 AM Punch & Pedal House Mail - 19 West 21st Street-Fifth Partners LLC
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/04/2023
From: Joseph Foley
Sent: Tuesday, September 14, 2021 3:08 PM
To: David Rosenbaum
Cc: Vijay Mehra
Subject: Re: 19 West 21st Street-Fifth Partners LLC
HI:
I don't need an attorney to tell you anything or contact you. July 15th the storefront was to be done. This was a verbal
agreement, not only did Vjay verbally agree in front of Saq and my wife, Mehra Proeprties secretary was present. We
were supposed to open July 20th. This was understood. We moved boxes in and realized we could not do
anything until the material moves. The super even told me to get out of their way. That is not given possession by any
means.
Vjay and Saq have received emails and photos about the delay of the storefront nearly every week from the week of
July 4th and almost every day until it was finihsed. We are not paying rent or using our free rent for a time that we could
not be open: July 15 until August 27th. We signed the lease with the understanding that we would be able to open July
20th, 5 days after the storefront was done. It was 43 days later. I am telling you right now. I am not paying that at all.
There is nothing to discuss, nothing to negotiate. Your client had the entire hallway and lobby filled with the material
until the last week of August. There was a 5-foot gap open to the outside until the 20th. Also, there is no condenser unit
for the 10-ton unit ac. (It magically disappeared.)
No meditation, arbitrator, or understanding person would agree with your client. Maybe you want to speak to your client
before going any further because I promise you there is no negotiation here.
Furthermore, free rent has nothing to do with at all. It is a part of the lease agreement. The storefront delayed our open
because of the landlord's work, not ours. We were waiting 43 days to open.
We are delaying 2nd month's payment to the time 43 days. Otherwise, you can take it to arbitration. And then, I will still
not need an attorney to defend me.
Have a good day!
https://mail.google.com/mail/u/1/?ik=c6099e361c&view=pt&search=all&permmsgid=msg-f:1710907094513102757&dsqt=1&simpl=msg-f:1710907094513102757 3/4
FILED: NEW YORK COUNTY CLERK 05/04/2023 12:24 PM INDEX NO. 161105/2021
5/4/23, 10:02 AM Punch & Pedal House Mail - 19 West 21st Street-Fifth Partners LLC
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/04/2023
On Tue, Sep 14, 2021 at 2:52 PM David Rosenbaum wrote:
Mr. Foley:
I represent your landlord Fifth Partners LLC. Kindly see the
attached letter. You are encouraged to have your attorney call
me to discuss, should there be a need. Thank you.
DAVID B. ROSENBAUM, ESQ.
BORAH, GOLDSTEIN, ALTSCHULER, NAHINS & GOIDEL P.C.
377 BROADWAY,6TH FLOOR
NEW YORK,N.Y. 10013
(PH) 212 431-1300
E-MAIL: DROSENBAUM@BORAHGOLDSTEIN.COM
FOR SETTLEMENT PURPOSES ONLY. NOT TO BE CONSTRUED AS A BONA FIDE SETTLEMENT. ONLY A
SEPARATE WRITTEN AGREEMENT EXECUTED BY THE PARTIES SHALL BE DEEMED SUCH A
SETTLEMENT. NOR SHOULD ANY COMMUNICATION FROM COUNSEL BE CONSTRUED AS A SETTLEMENT
AS ONLY AN AGREEMENT RATIFIED AND EXECUTED BY THE CLIENT SHALL BE DEEMED AN
ACCEPTANCE.
https://mail.google.com/mail/u/1/?ik=c6099e361c&view=pt&search=all&permmsgid=msg-f:1710907094513102757&dsqt=1&simpl=msg-f:1710907094513102757 4/4
Preview
FILED: NEW YORK COUNTY CLERK 05/04/2023 12:24 PM INDEX NO. 161105/2021 5/4/23, 10:02 AM Punch & Pedal House Mail - 19 West 21st Street-Fifth Partners LLC NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/04/2023 Joseph Foley 19 West 21st Street-Fifth Partners LLC David Rosenbaum Tue, Sep 14, 2021 at 3:35 PM To: Joseph Foley Doesn’t apply. We have an agreement. It’s called the lease and it has a provision that says that all oral communications are merged into the document and no changes can be made unless in writing. DAVID B. ROSENBAUM, ESQ. BORAH, GOLDSTEIN, ALTSCHULER, NAHINS & GOIDEL P.C. 377 BROADWAY,6TH FLOOR NEW YORK,N.Y. 10013 (PH) 212 431-1300 E-MAIL: DROSENBAUM@BORAHGOLDSTEIN.COM FOR SETTLEMENT PURPOSES ONLY. NOT TO BE CONSTRUED AS A BONA FIDE SETTLEMENT. ONLY A SEPARATE WRITTEN AGREEMENT EXECUTED BY THE PARTIES SHALL BE DEEMED SUCH A SETTLEMENT. NOR SHOULD ANY COMMUNICATION FROM COUNSEL BE CONSTRUED AS A SETTLEMENT AS ONLY AN AGREEMENT RATIFIED AND EXECUTED BY THE CLIENT SHALL BE DEEMED AN ACCEPTANCE. From: Joseph Foley Sent: Tuesday, September 14, 2021 3:30 PM To: David Rosenbaum Cc: Vijay Mehra Subject: Re: 19 West 21st Street-Fifth Partners LLC https://mail.google.com/mail/u/1/?ik=c6099e361c&view=pt&search=all&permmsgid=msg-f:1710907094513102757&dsqt=1&simpl=msg-f:1710907094513102757 1/4 FILED: NEW YORK COUNTY CLERK 05/04/2023 12:24 PM INDEX NO. 161105/2021 5/4/23, 10:02 AM Punch & Pedal House Mail - 19 West 21st Street-Fifth Partners LLC NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/04/2023 Although courts in a number of states have held that agreements to agree are not enforceable, such agreements are enforceable under both New York and Delaware law. In Teachers Insurance and Annuity Association of America v. Tribune Company, a federal court applying New York law held that a commitment letter represented a binding preliminary commitment obligating both sides to conclude a final loan agreement upon the agreed terms by negotiating in good faith to resolve additional terms. Again, we will go down this route if you like. I don't need an attorney to pull up actual laws. On Tue, Sep 14, 2021 at 3:27 PM David Rosenbaum wrote: If you consulted a lawyer, he would advise you that an oral statement is of no value in the face of a written document which takes precedence. You have just advised the landlord that you are going to anticipatorily breach the lease. That’s your choice, but not a wise one. As I said in my letter, if you fail to remit the rent, you will be liable for the free rent. Not a way to commence a relationship. Be guided accordingly. DAVID B. ROSENBAUM, ESQ. BORAH, GOLDSTEIN, ALTSCHULER, NAHINS & GOIDEL P.C. 377 BROADWAY,6TH FLOOR NEW YORK,N.Y. 10013 (PH) 212 431-1300 E-MAIL: DROSENBAUM@BORAHGOLDSTEIN.COM FOR SETTLEMENT PURPOSES ONLY. NOT TO BE CONSTRUED AS A BONA FIDE SETTLEMENT. ONLY A SEPARATE WRITTEN AGREEMENT EXECUTED BY THE PARTIES SHALL BE DEEMED SUCH A SETTLEMENT. NOR SHOULD ANY COMMUNICATION FROM COUNSEL BE CONSTRUED AS A SETTLEMENT AS ONLY AN AGREEMENT RATIFIED AND EXECUTED BY THE CLIENT SHALL BE DEEMED AN ACCEPTANCE. https://mail.google.com/mail/u/1/?ik=c6099e361c&view=pt&search=all&permmsgid=msg-f:1710907094513102757&dsqt=1&simpl=msg-f:1710907094513102757 2/4 FILED: NEW YORK COUNTY CLERK 05/04/2023 12:24 PM INDEX NO. 161105/2021 5/4/23, 10:02 AM Punch & Pedal House Mail - 19 West 21st Street-Fifth Partners LLC NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/04/2023 From: Joseph Foley Sent: Tuesday, September 14, 2021 3:08 PM To: David Rosenbaum Cc: Vijay Mehra Subject: Re: 19 West 21st Street-Fifth Partners LLC HI: I don't need an attorney to tell you anything or contact you. July 15th the storefront was to be done. This was a verbal agreement, not only did Vjay verbally agree in front of Saq and my wife, Mehra Proeprties secretary was present. We were supposed to open July 20th. This was understood. We moved boxes in and realized we could not do anything until the material moves. The super even told me to get out of their way. That is not given possession by any means. Vjay and Saq have received emails and photos about the delay of the storefront nearly every week from the week of July 4th and almost every day until it was finihsed. We are not paying rent or using our free rent for a time that we could not be open: July 15 until August 27th. We signed the lease with the understanding that we would be able to open July 20th, 5 days after the storefront was done. It was 43 days later. I am telling you right now. I am not paying that at all. There is nothing to discuss, nothing to negotiate. Your client had the entire hallway and lobby filled with the material until the last week of August. There was a 5-foot gap open to the outside until the 20th. Also, there is no condenser unit for the 10-ton unit ac. (It magically disappeared.) No meditation, arbitrator, or understanding person would agree with your client. Maybe you want to speak to your client before going any further because I promise you there is no negotiation here. Furthermore, free rent has nothing to do with at all. It is a part of the lease agreement. The storefront delayed our open because of the landlord's work, not ours. We were waiting 43 days to open. We are delaying 2nd month's payment to the time 43 days. Otherwise, you can take it to arbitration. And then, I will still not need an attorney to defend me. Have a good day! https://mail.google.com/mail/u/1/?ik=c6099e361c&view=pt&search=all&permmsgid=msg-f:1710907094513102757&dsqt=1&simpl=msg-f:1710907094513102757 3/4 FILED: NEW YORK COUNTY CLERK 05/04/2023 12:24 PM INDEX NO. 161105/2021 5/4/23, 10:02 AM Punch & Pedal House Mail - 19 West 21st Street-Fifth Partners LLC NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/04/2023 On Tue, Sep 14, 2021 at 2:52 PM David Rosenbaum wrote: Mr. Foley: I represent your landlord Fifth Partners LLC. Kindly see the attached letter. You are encouraged to have your attorney call me to discuss, should there be a need. Thank you. DAVID B. ROSENBAUM, ESQ. BORAH, GOLDSTEIN, ALTSCHULER, NAHINS & GOIDEL P.C. 377 BROADWAY,6TH FLOOR NEW YORK,N.Y. 10013 (PH) 212 431-1300 E-MAIL: DROSENBAUM@BORAHGOLDSTEIN.COM FOR SETTLEMENT PURPOSES ONLY. NOT TO BE CONSTRUED AS A BONA FIDE SETTLEMENT. ONLY A SEPARATE WRITTEN AGREEMENT EXECUTED BY THE PARTIES SHALL BE DEEMED SUCH A SETTLEMENT. NOR SHOULD ANY COMMUNICATION FROM COUNSEL BE CONSTRUED AS A SETTLEMENT AS ONLY AN AGREEMENT RATIFIED AND EXECUTED BY THE CLIENT SHALL BE DEEMED AN ACCEPTANCE. https://mail.google.com/mail/u/1/?ik=c6099e361c&view=pt&search=all&permmsgid=msg-f:1710907094513102757&dsqt=1&simpl=msg-f:1710907094513102757 4/4