Preview
FILED: ROCKLAND COUNTY CLERK 04/21/2024 12:31 PM INDEX NO. 031292/2023
NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 04/21/2024
"P"
EXHIBIT
FILED: ROCKLAND COUNTY CLERK 04/21/2024 12:31 PM INDEX NO. 031292/2023
NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 04/21/2024
JUSTICE COURT OF THE COUNTY OF ROCKLAND
TOWN OF CLARKSTOWN
__________________________________________________________________Ç
171 NO. PASCACK ROAD CORP. Case No. 23100416
Petitioner, AFFIRMATION OF
BRIAN K. CONDON
-against- IN OPPOSITION TO
PETITIONER'S
MOTION FOR
A NU U INJECTABLES, LLC, SUMMARY JUDGMENT
AND MOTION FOR PAST
Respondent. DUE PENDENTE LITE
-------------------------------------------------------------------X RENT
BRIAN K. CONDON, an attorney duly licensed to practice in the State of New York,
affirms the following under the penalties of perjury:
1. I submit this Affirmation in Opposition to Petitioner's Motion for Summary
Judgment and Motion for Past Due Pendente Lite Rent.
2. For a full recitation of facts and the tortured history that the Tenant has
experienced at the hands of this Landlord, I would respectfully refer this Honorable Court to the
accompanying Affidavit of Christina Milizia, a principal of the tenant in the case at bar, A Nu U
Injectables LLC (the "Tenant") which is submitted herewith.
"true"
3. Actually, in order to put the Landlord's motivation to evict the Tenant in
context, it is critically important that this Honorable Court read Ms. Milizia's accompanying
Affidavit (including all exhibits attached thereto) before reading this instant Affirmation.
4. As the Court can see, the noise and smell of DCA's operation, from day one, has
caused incredible disruption to Tenant's business (See Paragraphs - - -
¶¶ 9 13, 70 78, 97 99, 111,
114 - 115 of Milizia .
Affidavit)
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5. The Tenant had first asked the Landlord to cease DCA's disruptive actions, and
when she was rebuffed, for over a year, the Tenant sought redress from both the Town of
Clarkstown and County of Rockland alleging that DCA was operating illegally (See Paragraph ¶
80 of Milizia Affidavit).
6. On February 16, 2023, the Town of Clarkstown finally issued a violation to DCA
"M"
about its operations (See Paragraph $106 of Milizia Affidavit; See Exhibit of Milizia
Affidavit).
7. Thereafter, on February 27, 2023, the Landlord (again the owner and operator of
DCA) improperly served a Notice to Cure upon Tenant listing ten (10) ambiguous, vague and
"breaches"
bogus of the Lease that are unsupported by facts, logic or reasoning (See Paragraph
"C"
$19 of Milizia Affidavit; See Exhibit of Milizia Affidavit)
8. This Notice to Cure is nothing more then a thinly veiled attempt by the Landlord's
to evict a Tenant who is doing nothing but trying to stop the Landlord's illegal actions in running
his awning business from under the Tenant's med spa.
drive"
9. As can be seen in the videos which have been submitted as a "flash as
"B"
Exhibit to the Milizia Affidavit, the cutting of galvanized steel under Tenant's location is
causing loud noises, emitting dangerous cancer causing particles and smells into the Tenant's
med spa.
10. What the Landlord conveniently leaves out in its motion papers, is that the Tenant
responded to the February 27, 2023 Notice to Cure through its attorney, Phil George, Esq. of
"D"
Driscoll George LLP on March 7, 2023 ("Tenant's Cure Letter")(See Exhibit to Milizia
Affidavit).
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11. Most of the noted violations, were ambigous and vague and were not capable of
"cured" "D"
being as they were alleged (See Exhibit to Milizia Affidavit).
12. However, along with the Tenant's Cure Letter, Mr. George enclosed various
documents which clearly cured some of the alleged violations that could be responded to by the
"D"
Tenant (See Exhibit to Milizia Affidavit).
13. In this Tenant's Cure Letter, Mr. George asked the Landlord to further elaborate if
there were specific violations that the Landlord could provide detail to. Not surprisingly, there
was nothing else provided by the Landlord adding clarity and/or specificity to the vague
violations claimed. It is Tenant's contention that are no violations that were uncured (See Exhibit
"D"
to Milizia Affidavit).
LEGAL ARGUMENT
L Notice of Violation/Notice to Cure served upon Tenant was vague and
ambiguous and did not set forth sufficient facts to establish grounds for
eviction
14. The law is clear. A notice to cure that forms the basis for a petition initiating a
holdover proceeding must set forth sufficient facts to establish grounds for the tenant's eviction,
and inform the tenant how the tenant violated the lease, as well as the conduct required to prevent
eviction. Westhampton Cabins & Cabanas Owners Corp. v. Westhampton Bath & Tennis Club
(2nd
Owner Corp., 62 A.D.3d 987 Dept. 2009) citing Domen Holding Co. v. Aranovich, 1 NY3d
117, 769 N.Y.S.2d 785 (2003).
15. In the case at bar, the Petition has failed to establish grounds for the Tenant's
"C"
eviction as the Notice of Violation, see Exhibit to Milizia Affidavit, is woefully insufficient
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in informing the Tenant how it violated the Lease, as well as failed to establish what was needed
to be done in order to prevent eviction.
16. It is telling that the Petitioner fails to reference, in its motion papers: (a) Mr.
George's March 7, 2023 letter with exhibits; (b) Coyle Insurance Agency's email to the Landlord
providing amended Certificates on March 1, 2023; and (c) the fact that Mr. George requested for
more detail from the Landlord as to the purported violations so the Tenant could address the
"D" "E"
same immediately (See Exhibits and to Milizia Affidavit).
17. Although the Landlord's purported ten (10) violations set forth in its Notice of
Violation dated February 27, 2023 are addressed in Ms. Milizia's Affidavit, I think it is important
to highlight, again, how ambiguous and vague those violations were.
18. I would like to address each of the ten (10) claimed (and vague) violation by the
Landlord and Mr. George's logical response in turn.
19. Purported Violation No. 1: Citing to Section 23 items c of the - "all
a, b and Lease
work done without permission must be returned to the original state". Nothing in the Landlord's
Notice to Cure states, with particularity, as to what work the Landlord was claiming was done by
the Landlord without permission. In Mr. George's March 7, 2023 letter he asked for clarification
from the Landlord as the purported violation was vague and ambiguous. Landlord never
responded to Mr. George's logical request (See Paragraph $129 of Milizia Affidavit; See
"C" "D"
Exhibits and of Milizia Affidavit).
20. Purported Violation No. 2: Citing to Sections 28 and 29 of the Lease -
26, 27,
"insurance certificates provided has incorrect and has incomplete information". As is set forth in
Mr. George's March 7, 2023 letter to the Landlord, on March 1, 2023, Ms. JoAnne Ruesch from
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Coyle Insurance Agency Inc. sent revised Certificate of Insurance to the Landlord. This purported
violation had been cured on March 1, 2023 (See Paragraph $130 of Milizia Affidavit; See
"C" "D" "E"
Exhibits and of Milizia Affidavit).
21. Purported Violation No. 3: Citing to Section 37 of the Lease - "you must provide
a material safety data sheet for all products that are considered dangerous and proof that no
dangerous materials are stored on the premises. Proof of compliance with bio waste removal
rules and safety regulations is required". In this Violation No. 3, the Landlord references to a
paragraph of the Lease that is inapplicable. Mr. George, trying to work with the Landlord,
corrects the Landlord and advises the Landlord as to the paragraph of the Lease that he meant to
cite to. Again, Mr. George states in his March 7, 2023 letter that he does not know what
"materials"
the Landlord is referring to. He asks the Landlord for clarification (See Paragraph
"C" "D"
$131 of Milizia Affidavit; See Exhibits and of Milizia Affidavit).
22. Purported Violation No. 4: Citing to Section 41 of the Lease - "Insurance
Certificate must be provided with all of the correct information". In Violation No. 4, the
Landlord (again) references to a paragraph that is inapplicable. In Violation No. 4, the Landlord
cites to Section 41 of the Lease which states "the tenant agrees that there will be three percent
increases in the base rent per year". This has nothing to do with the instant Violation No. 4.
However, in the spirit of working with the Landlord, Mr. George's March 7, 2023 letter refers to
the March 1, 2023 providing of the insurance certificates to the Landlord by Coyle Insurance
Agency Inc. on March 1, 2023. This purported violation has been cured (See Paragraph $132 of
"D" "E"
Milizia Affidavit; See Exhibits "C", and of Milizia Affidavit).
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23. Purported Violation No. 5: Citing to Section 42 of the Lease - "All of the
contractors that have done work in the premises in store 14 must provide insurance certificates.
Please send these to me from all prior contractors". First all, in purported Violation No. 5, the
Landlord cites to paragraph 42 of the Lease which states: "[t]he tenant agrees to send insurance
certificates to the landlord upon renewal". That paragraph of the Lease, again, has nothing to do
with what was being requested from the Tenant in this Purported Violation No. 5. In his March
7, 2023 letter, Mr. George reminds the Landlord that he had already approved all work performed
by the Tenant and that the Town of Clarkstown had already given a Certificate of Occupancy.
However, again in the spirit of working together, Mr. George encloses fourteen (14) pages of
certificates of insurances and copy of the permit that was filed by the Tenant with the Town of
"C" "D"
Clarkstown (See Paragraph $133 of Milizia Affidavit; See Exhibits and of Milizia
Affidavit).
24. Purported Violation No. 6: Citing to Section 43 of the Lease - "[t]here have been
complaints of strange smells from your back door into the hallway that may be dangerous". The
Landlord refers to paragraph 43 of the Lease in support of this Violation No. 6 which (again) has
nothing to do with what was being violated. Mr. George reminds the Landlord that the putrid
(and dangerous) smell of cutting metal awnings below the Tenant's space is what caused the
Tenant to use a lime/basil Jo Malone diffuser to combat the stench of the cut metal emanating
smell"
from the basement. Without any further description of when this alleged "strange was
experienced and by whom, Mr. George advised the Landlord, that there was nothing to be cured.
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While lime/basil Jo Malone diffusers are not my cup of tea, they are most certainly not dangerous
as suggested by the Landlord. Another bogus violation charged by the Landlord (See Paragraph
"C" "D"
¶l34 of Milizia Affidavit; See Exhibits and of Milizia Affidavit).
25. Purported Violation No. 7: Citing to Section 47 of the Lease - "please provide
proof that you are paying for trash removal". In his March 7, 2023 letter to the Landlord, Mr.
George, provided proof that the Tenant was paying for trash removal. This Purported Violation
"C" "D"
was cured (See Paragraph $135 of Milizia Affidavit; See Exhibits and of Milizia
Affidavit).
26. Purported Violation No. 8: Citing to Section 48 of the Lease - "it is my opinion as
the landlord that you are creating a nuisance and disturbing the comforts and conveniences of the
other tenants and their employees". In this Purported Violation No. 8, the Landlord cites to
paragraph 48 of the Lease, which states: '[t]he tenant will promptly notify the Landlord of any
damage, or of any situation that may significantly interfere with the normal use of the Premises".
However, as was set forth in Mr. George's March 7, 2023 letter to the Landlord, this claimed
(baseless) violation was not supported with any facts, any references to complaints by any tenant
and/or their employees. It was vague and unsupported and, clearly, in retaliation for all of the
complaints that the Tenant was lodging with the Landlord, the Town of Clarkstown and the
County of Rockland about the commercial awning business that was being operated underneath
"opinion"
the Tenant's spa. This violation was based on the Landlord's and is baseless (See
"C" "D"
Paragraph $136 of Milizia Affidavit; See Exhibits and of Milizia Affidavit).
27. Purported Violation No. 9: Citing to Section 50 of the Lease - "tenant must have
a bio waste container and dispose of all trash in a safe manner". To this purported violation, No.
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9, the Landlord cites to a paragraph in the Lease that says "the Tenant will not engage in any
illegal trade or activity on or about the Premises". There was no alleged illegal trade or activity
being alleged as per the Lease. Again, in an effort to work with the Landlord, along with his
March 7, 2023 letter, Mr. George provides a contract that the Tenant has with MedPro Waste
Disposal, LLC to show that the med waste is being disposed of properly. This complaint was
"C" "D"
cured (See Paragraph ¶l37 of Milizia Affidavit; See Exhibits and of Milizia Affidavit).
28. Purported Violation No. 10: to Section 52 of the Lease - "no articles or
Citing
things of a danger are allowed in the leased premises". There is no description of what the
Landlord is referring to. It is another vague and ambiguous allegation against the Tenant (See
"C" "D"
Paragraph $138 of Milizia Affidavit; See Exhibits and of Milizia Affidavit).
29. The Landlord's Notice to Cure ended with the following statement: [p]lease
provide proof that all of these violations are cured within 10 days or your lease will be
terminated" "C"
(See Paragraph $139 of Milizia Affidavit; See Exhibit of Milizia Affidavit).
30. As this Honorable Court can see from the documents annexed to Mr. George's
March 7, 2023 Tenant Cure Letter, the Tenant timely provided to the Landlord documents in
response what could be discerned and asked for further clarification, which went ignored by the
"D"
Landlord (See Exhibit of Milizia Affidavit).
31. As sufficient facts were not laid out by the Landlord, their instant Motion and
Petition should be dismissed.
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IL Notice of Violation/Notice to Cure was not served property upon Tenant
and, as such, the same should be declared a nullity
32. When the sufficiency of a notice to cure is sufficiently challenged (the notice itself
and the manner of service), where the landlord fails to serve requisite notice to cure, the lease
remains in effect and the tenancy can not be terminated. 259 E. Broadway LLC v. 259 East
Broadway Associates, LLC, 77 Misc.3d 1228, 180 N.Y.S.3d 897 (NY County, 2023).
33. First, the Notice of Violation/Notice to Cure (purportedly served 02/27/23) was
not delivered to the Tenant's proper address, as that address is defined in the Lease, and, as such,
"A"
the service of the same is invalid (See Exhibit of Milizia Affidavit).
34. The Petitioner's purported February 27, 2023 Notice to Cure ("Notice to Cure") is
significantly deficient and should be invalidated, therefore, nullifying the Petitioner's purported
"C" "Y"
April 28, 2023 Notice of Termination (See Exhibits and of Milizia Affidavit).
35. The Notice to Cure was not delivered to the Tenant's address as is defined in
"A"
parties Commercial Lease Agreement dated February 14, 2022 ("Lease")(See Exhibit
Milizia Affidavit).
36. On the first page of the Lease, it states, in relevant part,
COMMERCIAL LEASE AGREEMENT
14th
THIS COMMERCIAL LEASE (this "Lease") dated this dq of Februam 2022
BETWEEN:
171 No. Pascack Rd. Corp. of 285 Route 303, Congers #5, NY 10920
Telephone: (845) 671-0607 Fax: (845) 425-6678 (the "Landlord")
OF THE FIRST PART
-AND-
A Nu U Injectibles, LLC of 48 Meriwether Trail Congers NY 10920
Telephone: (914) 906-4782 Fax:
(the "Tenant")
OF THE SECOND PART
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37. The Tenant, as defined in the first page, has a legal address of 48 Meriwether
Preview
FILED: ROCKLAND COUNTY CLERK 04/21/2024 12:31 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 04/21/2024 "P" EXHIBIT FILED: ROCKLAND COUNTY CLERK 04/21/2024 12:31 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 04/21/2024 JUSTICE COURT OF THE COUNTY OF ROCKLAND TOWN OF CLARKSTOWN __________________________________________________________________Ç 171 NO. PASCACK ROAD CORP. Case No. 23100416 Petitioner, AFFIRMATION OF BRIAN K. CONDON -against- IN OPPOSITION TO PETITIONER'S MOTION FOR A NU U INJECTABLES, LLC, SUMMARY JUDGMENT AND MOTION FOR PAST Respondent. DUE PENDENTE LITE -------------------------------------------------------------------X RENT BRIAN K. CONDON, an attorney duly licensed to practice in the State of New York, affirms the following under the penalties of perjury: 1. I submit this Affirmation in Opposition to Petitioner's Motion for Summary Judgment and Motion for Past Due Pendente Lite Rent. 2. For a full recitation of facts and the tortured history that the Tenant has experienced at the hands of this Landlord, I would respectfully refer this Honorable Court to the accompanying Affidavit of Christina Milizia, a principal of the tenant in the case at bar, A Nu U Injectables LLC (the "Tenant") which is submitted herewith. "true" 3. Actually, in order to put the Landlord's motivation to evict the Tenant in context, it is critically important that this Honorable Court read Ms. Milizia's accompanying Affidavit (including all exhibits attached thereto) before reading this instant Affirmation. 4. As the Court can see, the noise and smell of DCA's operation, from day one, has caused incredible disruption to Tenant's business (See Paragraphs - - - ¶¶ 9 13, 70 78, 97 99, 111, 114 - 115 of Milizia . Affidavit) -1- FILED: ROCKLAND COUNTY CLERK 04/21/2024 12:31 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 04/21/2024 5. The Tenant had first asked the Landlord to cease DCA's disruptive actions, and when she was rebuffed, for over a year, the Tenant sought redress from both the Town of Clarkstown and County of Rockland alleging that DCA was operating illegally (See Paragraph ¶ 80 of Milizia Affidavit). 6. On February 16, 2023, the Town of Clarkstown finally issued a violation to DCA "M" about its operations (See Paragraph $106 of Milizia Affidavit; See Exhibit of Milizia Affidavit). 7. Thereafter, on February 27, 2023, the Landlord (again the owner and operator of DCA) improperly served a Notice to Cure upon Tenant listing ten (10) ambiguous, vague and "breaches" bogus of the Lease that are unsupported by facts, logic or reasoning (See Paragraph "C" $19 of Milizia Affidavit; See Exhibit of Milizia Affidavit) 8. This Notice to Cure is nothing more then a thinly veiled attempt by the Landlord's to evict a Tenant who is doing nothing but trying to stop the Landlord's illegal actions in running his awning business from under the Tenant's med spa. drive" 9. As can be seen in the videos which have been submitted as a "flash as "B" Exhibit to the Milizia Affidavit, the cutting of galvanized steel under Tenant's location is causing loud noises, emitting dangerous cancer causing particles and smells into the Tenant's med spa. 10. What the Landlord conveniently leaves out in its motion papers, is that the Tenant responded to the February 27, 2023 Notice to Cure through its attorney, Phil George, Esq. of "D" Driscoll George LLP on March 7, 2023 ("Tenant's Cure Letter")(See Exhibit to Milizia Affidavit). -2- FILED: ROCKLAND COUNTY CLERK 04/21/2024 12:31 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 04/21/2024 11. Most of the noted violations, were ambigous and vague and were not capable of "cured" "D" being as they were alleged (See Exhibit to Milizia Affidavit). 12. However, along with the Tenant's Cure Letter, Mr. George enclosed various documents which clearly cured some of the alleged violations that could be responded to by the "D" Tenant (See Exhibit to Milizia Affidavit). 13. In this Tenant's Cure Letter, Mr. George asked the Landlord to further elaborate if there were specific violations that the Landlord could provide detail to. Not surprisingly, there was nothing else provided by the Landlord adding clarity and/or specificity to the vague violations claimed. It is Tenant's contention that are no violations that were uncured (See Exhibit "D" to Milizia Affidavit). LEGAL ARGUMENT L Notice of Violation/Notice to Cure served upon Tenant was vague and ambiguous and did not set forth sufficient facts to establish grounds for eviction 14. The law is clear. A notice to cure that forms the basis for a petition initiating a holdover proceeding must set forth sufficient facts to establish grounds for the tenant's eviction, and inform the tenant how the tenant violated the lease, as well as the conduct required to prevent eviction. Westhampton Cabins & Cabanas Owners Corp. v. Westhampton Bath & Tennis Club (2nd Owner Corp., 62 A.D.3d 987 Dept. 2009) citing Domen Holding Co. v. Aranovich, 1 NY3d 117, 769 N.Y.S.2d 785 (2003). 15. In the case at bar, the Petition has failed to establish grounds for the Tenant's "C" eviction as the Notice of Violation, see Exhibit to Milizia Affidavit, is woefully insufficient -3- FILED: ROCKLAND COUNTY CLERK 04/21/2024 12:31 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 04/21/2024 in informing the Tenant how it violated the Lease, as well as failed to establish what was needed to be done in order to prevent eviction. 16. It is telling that the Petitioner fails to reference, in its motion papers: (a) Mr. George's March 7, 2023 letter with exhibits; (b) Coyle Insurance Agency's email to the Landlord providing amended Certificates on March 1, 2023; and (c) the fact that Mr. George requested for more detail from the Landlord as to the purported violations so the Tenant could address the "D" "E" same immediately (See Exhibits and to Milizia Affidavit). 17. Although the Landlord's purported ten (10) violations set forth in its Notice of Violation dated February 27, 2023 are addressed in Ms. Milizia's Affidavit, I think it is important to highlight, again, how ambiguous and vague those violations were. 18. I would like to address each of the ten (10) claimed (and vague) violation by the Landlord and Mr. George's logical response in turn. 19. Purported Violation No. 1: Citing to Section 23 items c of the - "all a, b and Lease work done without permission must be returned to the original state". Nothing in the Landlord's Notice to Cure states, with particularity, as to what work the Landlord was claiming was done by the Landlord without permission. In Mr. George's March 7, 2023 letter he asked for clarification from the Landlord as the purported violation was vague and ambiguous. Landlord never responded to Mr. George's logical request (See Paragraph $129 of Milizia Affidavit; See "C" "D" Exhibits and of Milizia Affidavit). 20. Purported Violation No. 2: Citing to Sections 28 and 29 of the Lease - 26, 27, "insurance certificates provided has incorrect and has incomplete information". As is set forth in Mr. George's March 7, 2023 letter to the Landlord, on March 1, 2023, Ms. JoAnne Ruesch from -4- FILED: ROCKLAND COUNTY CLERK 04/21/2024 12:31 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 04/21/2024 Coyle Insurance Agency Inc. sent revised Certificate of Insurance to the Landlord. This purported violation had been cured on March 1, 2023 (See Paragraph $130 of Milizia Affidavit; See "C" "D" "E" Exhibits and of Milizia Affidavit). 21. Purported Violation No. 3: Citing to Section 37 of the Lease - "you must provide a material safety data sheet for all products that are considered dangerous and proof that no dangerous materials are stored on the premises. Proof of compliance with bio waste removal rules and safety regulations is required". In this Violation No. 3, the Landlord references to a paragraph of the Lease that is inapplicable. Mr. George, trying to work with the Landlord, corrects the Landlord and advises the Landlord as to the paragraph of the Lease that he meant to cite to. Again, Mr. George states in his March 7, 2023 letter that he does not know what "materials" the Landlord is referring to. He asks the Landlord for clarification (See Paragraph "C" "D" $131 of Milizia Affidavit; See Exhibits and of Milizia Affidavit). 22. Purported Violation No. 4: Citing to Section 41 of the Lease - "Insurance Certificate must be provided with all of the correct information". In Violation No. 4, the Landlord (again) references to a paragraph that is inapplicable. In Violation No. 4, the Landlord cites to Section 41 of the Lease which states "the tenant agrees that there will be three percent increases in the base rent per year". This has nothing to do with the instant Violation No. 4. However, in the spirit of working with the Landlord, Mr. George's March 7, 2023 letter refers to the March 1, 2023 providing of the insurance certificates to the Landlord by Coyle Insurance Agency Inc. on March 1, 2023. This purported violation has been cured (See Paragraph $132 of "D" "E" Milizia Affidavit; See Exhibits "C", and of Milizia Affidavit). -5- FILED: ROCKLAND COUNTY CLERK 04/21/2024 12:31 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 04/21/2024 23. Purported Violation No. 5: Citing to Section 42 of the Lease - "All of the contractors that have done work in the premises in store 14 must provide insurance certificates. Please send these to me from all prior contractors". First all, in purported Violation No. 5, the Landlord cites to paragraph 42 of the Lease which states: "[t]he tenant agrees to send insurance certificates to the landlord upon renewal". That paragraph of the Lease, again, has nothing to do with what was being requested from the Tenant in this Purported Violation No. 5. In his March 7, 2023 letter, Mr. George reminds the Landlord that he had already approved all work performed by the Tenant and that the Town of Clarkstown had already given a Certificate of Occupancy. However, again in the spirit of working together, Mr. George encloses fourteen (14) pages of certificates of insurances and copy of the permit that was filed by the Tenant with the Town of "C" "D" Clarkstown (See Paragraph $133 of Milizia Affidavit; See Exhibits and of Milizia Affidavit). 24. Purported Violation No. 6: Citing to Section 43 of the Lease - "[t]here have been complaints of strange smells from your back door into the hallway that may be dangerous". The Landlord refers to paragraph 43 of the Lease in support of this Violation No. 6 which (again) has nothing to do with what was being violated. Mr. George reminds the Landlord that the putrid (and dangerous) smell of cutting metal awnings below the Tenant's space is what caused the Tenant to use a lime/basil Jo Malone diffuser to combat the stench of the cut metal emanating smell" from the basement. Without any further description of when this alleged "strange was experienced and by whom, Mr. George advised the Landlord, that there was nothing to be cured. -6- FILED: ROCKLAND COUNTY CLERK 04/21/2024 12:31 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 04/21/2024 While lime/basil Jo Malone diffusers are not my cup of tea, they are most certainly not dangerous as suggested by the Landlord. Another bogus violation charged by the Landlord (See Paragraph "C" "D" ¶l34 of Milizia Affidavit; See Exhibits and of Milizia Affidavit). 25. Purported Violation No. 7: Citing to Section 47 of the Lease - "please provide proof that you are paying for trash removal". In his March 7, 2023 letter to the Landlord, Mr. George, provided proof that the Tenant was paying for trash removal. This Purported Violation "C" "D" was cured (See Paragraph $135 of Milizia Affidavit; See Exhibits and of Milizia Affidavit). 26. Purported Violation No. 8: Citing to Section 48 of the Lease - "it is my opinion as the landlord that you are creating a nuisance and disturbing the comforts and conveniences of the other tenants and their employees". In this Purported Violation No. 8, the Landlord cites to paragraph 48 of the Lease, which states: '[t]he tenant will promptly notify the Landlord of any damage, or of any situation that may significantly interfere with the normal use of the Premises". However, as was set forth in Mr. George's March 7, 2023 letter to the Landlord, this claimed (baseless) violation was not supported with any facts, any references to complaints by any tenant and/or their employees. It was vague and unsupported and, clearly, in retaliation for all of the complaints that the Tenant was lodging with the Landlord, the Town of Clarkstown and the County of Rockland about the commercial awning business that was being operated underneath "opinion" the Tenant's spa. This violation was based on the Landlord's and is baseless (See "C" "D" Paragraph $136 of Milizia Affidavit; See Exhibits and of Milizia Affidavit). 27. Purported Violation No. 9: Citing to Section 50 of the Lease - "tenant must have a bio waste container and dispose of all trash in a safe manner". To this purported violation, No. -7- FILED: ROCKLAND COUNTY CLERK 04/21/2024 12:31 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 04/21/2024 9, the Landlord cites to a paragraph in the Lease that says "the Tenant will not engage in any illegal trade or activity on or about the Premises". There was no alleged illegal trade or activity being alleged as per the Lease. Again, in an effort to work with the Landlord, along with his March 7, 2023 letter, Mr. George provides a contract that the Tenant has with MedPro Waste Disposal, LLC to show that the med waste is being disposed of properly. This complaint was "C" "D" cured (See Paragraph ¶l37 of Milizia Affidavit; See Exhibits and of Milizia Affidavit). 28. Purported Violation No. 10: to Section 52 of the Lease - "no articles or Citing things of a danger are allowed in the leased premises". There is no description of what the Landlord is referring to. It is another vague and ambiguous allegation against the Tenant (See "C" "D" Paragraph $138 of Milizia Affidavit; See Exhibits and of Milizia Affidavit). 29. The Landlord's Notice to Cure ended with the following statement: [p]lease provide proof that all of these violations are cured within 10 days or your lease will be terminated" "C" (See Paragraph $139 of Milizia Affidavit; See Exhibit of Milizia Affidavit). 30. As this Honorable Court can see from the documents annexed to Mr. George's March 7, 2023 Tenant Cure Letter, the Tenant timely provided to the Landlord documents in response what could be discerned and asked for further clarification, which went ignored by the "D" Landlord (See Exhibit of Milizia Affidavit). 31. As sufficient facts were not laid out by the Landlord, their instant Motion and Petition should be dismissed. -8- FILED: ROCKLAND COUNTY CLERK 04/21/2024 12:31 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 04/21/2024 IL Notice of Violation/Notice to Cure was not served property upon Tenant and, as such, the same should be declared a nullity 32. When the sufficiency of a notice to cure is sufficiently challenged (the notice itself and the manner of service), where the landlord fails to serve requisite notice to cure, the lease remains in effect and the tenancy can not be terminated. 259 E. Broadway LLC v. 259 East Broadway Associates, LLC, 77 Misc.3d 1228, 180 N.Y.S.3d 897 (NY County, 2023). 33. First, the Notice of Violation/Notice to Cure (purportedly served 02/27/23) was not delivered to the Tenant's proper address, as that address is defined in the Lease, and, as such, "A" the service of the same is invalid (See Exhibit of Milizia Affidavit). 34. The Petitioner's purported February 27, 2023 Notice to Cure ("Notice to Cure") is significantly deficient and should be invalidated, therefore, nullifying the Petitioner's purported "C" "Y" April 28, 2023 Notice of Termination (See Exhibits and of Milizia Affidavit). 35. The Notice to Cure was not delivered to the Tenant's address as is defined in "A" parties Commercial Lease Agreement dated February 14, 2022 ("Lease")(See Exhibit Milizia Affidavit). 36. On the first page of the Lease, it states, in relevant part, COMMERCIAL LEASE AGREEMENT 14th THIS COMMERCIAL LEASE (this "Lease") dated this dq of Februam 2022 BETWEEN: 171 No. Pascack Rd. Corp. of 285 Route 303, Congers #5, NY 10920 Telephone: (845) 671-0607 Fax: (845) 425-6678 (the "Landlord") OF THE FIRST PART -AND- A Nu U Injectibles, LLC of 48 Meriwether Trail Congers NY 10920 Telephone: (914) 906-4782 Fax: (the "Tenant") OF THE SECOND PART -9- FILED: ROCKLAND COUNTY CLERK 04/21/2024 12:31 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 04/21/2024 37. The Tenant, as defined in the first page, has a legal address of 48 Meriwether