On December 13, 2021 a
Exhibit,Appendix
was filed
involving a dispute between
Fifth Partners Llc,
and
Joseph W. Foley,
Nada Vasilijevic,
Punch House Flatiron Llc,
for Real Property - Other (Breach of Lease)
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 05/04/2023 12:24 PM INDEX NO. 161105/2021
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 05/04/2023
BORAH GOLDSTEIN
ALTSCHULER NAHINS & GOIDEL, P.C. I
David B. Rosenbaum
Senior Partner
DROSENBAUM@BORAHGOLDSTEIN.COM
O: (212) 431-1300, Ext. 360
F: (212) 965-2655
September 14, 2021
VIA Federal Express Overnight
& Email
Joey@punch-pedal.com
Joseph Foley
c/o Punch House Flatiron LLC
21st
19 West Street
New York, New York 10010
Re: Lease dated June 14, 2021 between Fifth
Partners LLC ("Landlord") and Punch House
Flatiron LLC ("Tenant") for the ground Floor
21st
retail store located at 19 West Street, NYC
(the "Space")
Dear Mr. Foley:
The undersigned represents the landlord. Your various emails to Vijay Mehra just
came to my attention, was forwarded to me for review, comment, and response. Kindly
forward all future correspondence regarding this lease dispute to my attention.
Reference is made to the lease executed on June 24, 2021 (the "Lease"). Pursuant
to the Lease, possession and the keys were delivered on June 24, 2021. Apparently, the
store front replacement was already initiated as of the lease execution and possession
date. It is represented that the Tenant was anxious to get a head start on renovations and
consented to commence such alterations while the storefront was being replaced.
Seemingly, Landlord's replacement of the storefront did not impede Tenanes buildout of
the Space.
"26" Perform"
There is at paragraph of the Lease an "lnability to clause. There, it
is the Landlord who derives the benefit of its inability to comply with the Lease under
certain circumstances. That clause is not reciprocal and does not benefit the Tenant.
"4"
Paragraph of the Lease obligates the Landlord to maintain and repair
the public portions of the building, both exterior and interior. Likewise, Lease
"13"
paragraph grants to the Landlord the right of access to the Space to make
repairs or improvements that the Landlord deems necessary. Tenant may not
assert a claim of eviction nor shall it be entitled to an abatement or claim for loss
of business for such work.
FILED: NEW YORK COUNTY CLERK 05/04/2023 12:24 PM INDEX NO. 161105/2021
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 05/04/2023
BORAH GOLDSTEIN
ALTSCHULER NAHINS & GOlDEL, P.C.
Joseph Foley
September 14, 2021
Page Two
"23"
Your reliance on Lease paragraph is misguided. Therein, the Landlord
would be protected if it promised the Tenant the Space as of a certain date and
could not deliver possession because the prior tenant was still occupying or for
such similar reasons. Here, possession was duly delivered on the Lease
execution date and Tenant took lawful possession and even performed
improvements to the Space. It has and has had superior possession of the Space
since June 24, 2021.
My understanding is that the storefront has been fully completed as of August 27,
2021, well within the free rent period. I suggest you have your attorney contact me to
resolve any unresolved punch list items if you are unable to work it out with the onsite
manager.
I would note that the Tenants failure to remit base rent and additional
charges as of the rent commencement date will be construed as a Lease default
entitling Landlord to seek the abated rent, a consequence, I am confident, the
Tenant would abhor.
road"
Perhaps we can view this "bump in the as a nervous start to the
relationship. In any event, the Landlord hopes that the parties can get past this
issue and looks forward to a successful landlord-tenant relationship. I am
available to discuss any outstanding unresolved issues. Thank you for your
anticipated attention and prompt response, if any.
Respectfully,
Borah, Goldstein, Altschuler, Nahins
& Goidel, P.C.
By:
David B. Rosenbaum, Esq.
cc: Fifth Partners LLC
Document Filed Date
May 04, 2023
Case Filing Date
December 13, 2021
Category
Real Property - Other (Breach of Lease)
Status
Disposed-Court Date/Application Pending
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FILED: NEW YORK COUNTY CLERK 05/04/2023 12:24 PM INDEX NO. 161105/2021 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 05/04/2023 BORAH GOLDSTEIN ALTSCHULER NAHINS & GOIDEL, P.C. I David B. Rosenbaum Senior Partner DROSENBAUM@BORAHGOLDSTEIN.COM O: (212) 431-1300, Ext. 360 F: (212) 965-2655 September 14, 2021 VIA Federal Express Overnight & Email Joey@punch-pedal.com Joseph Foley c/o Punch House Flatiron LLC 21st 19 West Street New York, New York 10010 Re: Lease dated June 14, 2021 between Fifth Partners LLC ("Landlord") and Punch House Flatiron LLC ("Tenant") for the ground Floor 21st retail store located at 19 West Street, NYC (the "Space") Dear Mr. Foley: The undersigned represents the landlord. Your various emails to Vijay Mehra just came to my attention, was forwarded to me for review, comment, and response. Kindly forward all future correspondence regarding this lease dispute to my attention. Reference is made to the lease executed on June 24, 2021 (the "Lease"). Pursuant to the Lease, possession and the keys were delivered on June 24, 2021. Apparently, the store front replacement was already initiated as of the lease execution and possession date. It is represented that the Tenant was anxious to get a head start on renovations and consented to commence such alterations while the storefront was being replaced. Seemingly, Landlord's replacement of the storefront did not impede Tenanes buildout of the Space. "26" Perform" There is at paragraph of the Lease an "lnability to clause. There, it is the Landlord who derives the benefit of its inability to comply with the Lease under certain circumstances. That clause is not reciprocal and does not benefit the Tenant. "4" Paragraph of the Lease obligates the Landlord to maintain and repair the public portions of the building, both exterior and interior. Likewise, Lease "13" paragraph grants to the Landlord the right of access to the Space to make repairs or improvements that the Landlord deems necessary. Tenant may not assert a claim of eviction nor shall it be entitled to an abatement or claim for loss of business for such work. FILED: NEW YORK COUNTY CLERK 05/04/2023 12:24 PM INDEX NO. 161105/2021 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 05/04/2023 BORAH GOLDSTEIN ALTSCHULER NAHINS & GOlDEL, P.C. Joseph Foley September 14, 2021 Page Two "23" Your reliance on Lease paragraph is misguided. Therein, the Landlord would be protected if it promised the Tenant the Space as of a certain date and could not deliver possession because the prior tenant was still occupying or for such similar reasons. Here, possession was duly delivered on the Lease execution date and Tenant took lawful possession and even performed improvements to the Space. It has and has had superior possession of the Space since June 24, 2021. My understanding is that the storefront has been fully completed as of August 27, 2021, well within the free rent period. I suggest you have your attorney contact me to resolve any unresolved punch list items if you are unable to work it out with the onsite manager. I would note that the Tenants failure to remit base rent and additional charges as of the rent commencement date will be construed as a Lease default entitling Landlord to seek the abated rent, a consequence, I am confident, the Tenant would abhor. road" Perhaps we can view this "bump in the as a nervous start to the relationship. In any event, the Landlord hopes that the parties can get past this issue and looks forward to a successful landlord-tenant relationship. I am available to discuss any outstanding unresolved issues. Thank you for your anticipated attention and prompt response, if any. Respectfully, Borah, Goldstein, Altschuler, Nahins & Goidel, P.C. By: David B. Rosenbaum, Esq. cc: Fifth Partners LLC