Exhibit,Appendix: Bvk 55 West 125th Street Llc v. Physician Affiliate Group Of New York, P.C.

On September 30, 2022 a Exhibit,Appendix was filed involving a dispute between Bvk 55 West 125Th Street Llc, and Physician Affiliate Group Of New York, P.C., for Commercial - Contract in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 05/17/2024 06:43 PM INDEX NO. 653599/2022
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 05/17/2024

EXHIBIT “I”
FILED: NEW YORK COUNTY CLERK 05/17/2024
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05:33 PM INDEX NO. 653599/2022
NYSCEF DOC. NO. 29
8 RECEIVED NYSCEF: 05/17/2024
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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BVK 55 WEST 125TH STREET LLC, : Index No.: 653599/2022
:
Plaintiff, :
: VERIFIED ANSWER
- against – : WITH COUNTERCLAIMS
:
PHYSICIAN AFFILIATE GROUP OF NEW YORK, :
P.C., :
:
Defendant. :
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Defendant, Physician Affiliate Group of New York, P.C. (“Defendant”), by its attorneys,

Fox Rothschild LLP, hereby alleges as and for its Verified Answer with Counterclaims to the

Complaint, dated September 30, 2022, of plaintiff BVK 55 West 125th Street LLC (“Plaintiff”),

as follows:

1. Denies knowledge and information sufficient to form a belief as to the allegations

contained in paragraphs “1”, “2”, “8”, “37”, “50”, “51”, and “64” of the Complaint.

2. Denies the allegations contained in paragraph “3” of the Complaint excepts admits

that Defendant is a professional corporation authorized to conduct business in the State of New

York.

3. Admits the allegations contained in paragraph “4” of the Complaint.

4. Denies the allegations contained in paragraphs “5”, “6”, “7”, “9”, “10”, “11”, “12”,

“13”, “14”, “15”, “16”, “17”, “18”, “19”, “20”, “21”, “22”, “23”, “24”, “25”, “26”, “27”, “28”,

“29”, “30”, “31”, “32”, “34”, “35”, and “36” of the Complaint and respectfully refers the Court to

the document(s) referenced for an accurate recitation of its contents and/or for the information

contained therein.

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5. Denies the allegations contained in paragraphs “33”, “38”, “39”, “40”, “41”, 42”,

“43”, “44”, “45”, “46”, “47”, “48”, “49”, “52”, “53”, “54”, “55”, “56”, “57”, “58”, “59”, “60”,

“61”, “62”, “63”, “65”, “66”, “67”, “68”, “69”, “70”, “71”, “72”, “73”, “74”, “75”, “76”, “77”,

“78”, and “79” and respectfully refers all questions of fact and law to the Court.

FIRST AFFIRMATIVE DEFENSE

6. The Complaint fails to state a cause of action upon which relief can be granted.

7. Accordingly, the Complaint should be dismissed.

SECOND AFFIRMATIVE DEFENSE

8. Plaintiff’s claims are barred and/or refuted by documentary evidence.

9. Accordingly, the Complaint should be dismissed.

THIRD AFFIRMATIVE DEFENSE

10. Plaintiff’s claims are barred because Plaintiff breached the covenant of quiet

enjoyment with respect to the lease and substantially deprived Defendant of its beneficial use and

enjoyment of the subject premises.

11. Accordingly, the Complaint should be dismissed.

FOURTH AFFIRMATIVE DEFENSE

12. Plaintiff’s Complaint is barred by the doctrine of unclean hands and bad faith.

13. Plaintiff promised to correct safety issues at and surrounding the Building (defined

below).

14. Defendant relied upon Plaintiff’s repeated promises.

15. Plaintiff failed to correct safety issues at and surrounding the Building (defined

below) despite repeatedly promising to do so.

16. Accordingly, the Complaint should be dismissed.

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FIFTH AFFIRMATIVE DEFENSE

17. Plaintiff’s claims are barred because Plaintiff constructively evicted Defendant

from the subject premises.

18. Accordingly, the Complaint should be dismissed.

SIXTH AFFIRMATIVE DEFENSE

19. Plaintiff has failed to mitigate its damages and is thereby precluded from utilizing

Section 19.3 of the Lease to calculate its damages.

20. Accordingly, the Complaint should be dismissed.

SEVENTH AFFIRMATIVE DEFENSE

21. Upon information and belief, Plaintiff failed to properly serve its purported Notice

of Termination in a manner that would afford Defendant notice.

22. Upon information and belief, Plaintiff only served Defendant the Notice of

Termination at the Premises (defined below), a location that Plaintiff knew Defendant no longer

occupied.

23. Therefore, service of the Notice of Termination was destined to fail.

24. Accordingly, the Complaint should be dismissed.

EIGHTH AFFIRMATIVE DEFENSE

25. Legal fees is not a proper separate cause of action. See Pier 59 Studios v. Chelsea

Piers, 27 AD3d 217 (1st Dept. 2006).

26. Accordingly, Plaintiff’s cause of action for legal fees should be dismissed.

NINTH AFFIRMATIVE DEFENSE

27. Plaintiff’s Complaint is barred by the doctrine of promissory estoppel.

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28. Plaintiff promised to correct safety issues at and surrounding the Building (defined

below).

29. Defendant relied upon Plaintiff’s repeated promises.

30. Plaintiff failed to correct safety issues at and surrounding the Building (defined

below) despite repeatedly promising to do so.

31. Defendant has been injured by its reliance upon Plaintiff’s promises.

32. Accordingly, the Complaint should be dismissed.

COUNTERCLAIMS

33. Defendant repeats and re-alleges each and every allegation contained in paragraphs

1 through 32 above as if fully set forth at length herein.

34. Defendant is a New York Professional Corporation with tax-exempt status that,

through an affiliation agreement with NYC Health and Hospitals Corporation, provides clinical

staff at municipal hospitals serving the underprivileged and underserved communities in the City

of New York.

35. Defendant was the prior commercial tenant of a portion of the tenth (10th) floor (the

“Premises”) in the building known as 55 West 125th Street, New York, New York (the “Building”)

pursuant to an Initial Lease, dated June 26, 2013, between 55 Fee LLC, as landlord, and Defendant,

as tenant (the “Initial Lease”), as thereafter amended by: (a) an Amendment to Lease, dated July

13, 2016, between Plaintiff, as landlord, and Defendant, as tenant (“First Amendment”); and (b) a

Second Amendment to Lease, dated August 5, 2019, between Plaintiff, as landlord, and Defendant,

as tenant (the “Second Amendment”, together with the Initial Lease and First Amendment, the

“Lease”).

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36. Pursuant to Section 5.2 of the Initial Lease, Plaintiff agreed to maintain the public

and common areas of the Building in reasonably good order and condition.

37. Pursuant to Section 32 of the Initial Lease, Plaintiff agreed that Defendant was

entitled to peacefully and quietly enjoy the Premises.

38. Security of the Building is Plaintiff’s responsibility.

39. Commencing in or around July 2021, there were multiple security breaches and

incidents in and surrounding the Building which threatened the safety of Defendant’s employees

and affected Defendant’s ability to operate its business at the Premises.

40. Specifically, among other things, unauthorized persons repeatedly: (a) entered the

Building and the Premises; (b) threatened and menaced Defendant’s employees; and (c) prevented

Defendant’s employees’ safe passage to and from the Premises.

41. On August 5, 2021, Defendant notified Plaintiff of the various security breaches at

the Premises (the “August 5th Letter”), including, inter alia: (a) on July 1, 2021, the entrance to

the Building was blocked by a man – naked from the waist down – who was ranting and raving

and preventing safe access to the Building; (b) on July 29, 2021, an unauthorized male was able to

enter the Building and go up to the 10th floor, where the Premises are located, and attempted entry

to the Premises; (c) on various occasions, there was very open and public drug activity in the

Building; (d) in or about mid-July 2021 Defendant’s employees were unable to safely leave the

garage located in the Building until an ambulance arrived to remove a person who was passed out

and blocking the exit; and (e) on multiple occasions, the garage of the Building was left unattended,

with the gate open for anyone to enter.

42. On August 23, 2021, Plaintiff advised that it was committed to improving security

in and around the Building (the “August 23rd Letter”).

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43. Plaintiff’s promise to increase security included the following: (a) add an additional

security officer to increase interior/exterior patrols and consistently have 2 officers at the lobby;

(b) security officers would be retrained on the Building access control policy and other protocols;

door when they step away from the entrance area; (e) upgraded camera on the garage ramp and

installation of a sensor and speaker; (f) planned installation of a turnstile system for main lobby in

first quarter of 2022; and (g) consideration of installment of an elevator floor access system.

44. Defendant continued to use and occupy the Premises in reliance upon Plaintiff’s

representations that it would implement safety measures at and surrounding the Building.

45. Despite Plaintiff’s promises, Plaintiff did not install or implement the safety

measures outlined in its August 23rd Letter.

46. On January 31, 2022, Plaintiff and Defendant held a meeting to address the ongoing

and unaddressed safety concerns.

47. At the meeting, Defendant was assured that the security measures outlined in

Plaintiff’s August 23rd Letter would soon be implemented.

48. Again, Defendant replied upon Plaintiff’s representations and continued to put its

employees at risk by occupying the Premises.

49. Notwithstanding Plaintiff’s continued promises, the measures were not

implemented and safety around the Building and at the Premises did not improve.

50. Defendant’s employees continued to be harassed, accosted, and intimidated by

unauthorized individuals in and around the Building.

51. On March 4, 2022, Defendant sent another letter to Plaintiff outlining the need for

increased safety measures in and around the Building (the “March 4th Letter”).

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52. Within the March 4th Letter, Defendant outlined that the security measures in the

August 23rd Letter were still not implemented.

53. In addition, Defendant outlined additional incidents that put Defendant’s

employees’ life, health, and safety at risk at and around the Building, including: (a) unauthorized

person(s) were found wandering the Building; (b) continued rampant drug activity on the ramp to

the garage in the Building; (c) an unauthorized person was on the ramp to the garage and proceeded

to attempt to assault Defendant’s employee by, inter alia, banging on said employee’s car window

as they attempted to exit the garage and then chased said car down the street; and (d) 2 incidents

of urination and defecation at the entrance of the Building.

54. In response, Plaintiff advised it would: (a) install an access control and intercom in

the garage; (b) install a turnstile in the lobby; and (c) install a 3rd security guard to perform Building

inspections so that there are 2 guards in the lobby between 9am and 5pm.

55. Plaintiff failed to fully perform per its prior representations and failed to rectify the

situation despite its repeated promises to do so and Defendant’s reliance upon the same.

56. On March 21, 2022, Defendant advised that Plaintiff’s purported actions and

suggestions were insufficient to address the ongoing safety issues (the “March 21st Letter”).

57. Defendant further advised that its tenancy continued to suffer from life, health, and

safety issues in and around the Building, including: (a) people continued to have unauthorized

access to the Building and its elevators and floors; and (b) continued harassment of Defendant’s

employees by persons blocking the entrance/exit of the Building.

58. Plaintiff still took no action.

59. Thereafter, Defendant’s employees continued to be exposed to dangerous situations

on a daily basis.

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60. Defendant relied on Plaintiff to carry out its repeated promises to address the safety

issues and implement security measures at the Building.

61. However, Plaintiff never took any substantive steps to address the life, health, and

safety issues at the Building notwithstanding its repeated promises to do so and Defendant’s

reliance upon the same.

62. Plaintiff’s failure to address the safety issues and implement security measures

wrongfully interfered with Defendant’s use and enjoyment of the Premises.

63. As a result, Defendant was forced to vacate and abandon the Premises as of May 4,

2022.

64. On May 11, 2022, Defendant, through counsel, notified Plaintiff that it has been

constructively evicted from the Premises due to Plaintiff’s wrongful actions, including its failure

to address safety issues at and surrounding the Building.

FIRST COUNTERCLAIM
(Constructive Eviction – Declaratory Judgment)

65. Defendant repeats and re-alleges each and every allegation contained in paragraphs

1 through 64 above as if fully set forth at length herein.

66. Plaintiff’s wrongful actions, including, but not limited to, its failure to address

safety issues at and surrounding the Building, despite Plaintiff’s repeated promises and

Defendant’s reliance upon same, substantially and materially deprived Defendant of the beneficial

use and enjoyment of the Premises.

67. As a result of Plaintiff’s wrongful actions, Defendant was forced to vacate and

abandon the Premises on or about May 4, 2022.

68. Defendant respectfully seeks a declaratory judgment that: (a) the Lease is

terminated as of May 4, 2022; (b) Defendant has no obligations under the Lease, including the
8

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obligation to pay rent; and (c) Defendant’s abandonment of the Premises due to constructive

eviction is not an “Event of Default” under the parties’ Lease.

SECOND COUNTERCLAIM
(Breach of Covenant of Quiet Enjoyment)

69. Defendant repeats and re-alleges each and every allegation contained in paragraphs

1 through 68 above as if fully set forth at length therein.

70. There is implied in Defendant’s tenancy of the Premises a covenant of quiet

enjoyment of the Premises.

71. In addition, pursuant to Section 32 of the Initial Lease, Plaintiff agreed that

Defendant was entitled to peacefully and quietly enjoy the Premises.

72. Plaintiff’s wrongful actions, including, but not limited to, its failure to address

safety issues at and surrounding the Building, despite Plaintiff’s repeated promises and

Defendant’s reliance upon same, substantially and materially denied Defendant of the beneficial

use and enjoyment of the Premises.

73. As a result of Plaintiff’s wrongful actions, Defendant was forced to vacate and

abandon the Premises on or about May 4, 2022.

74. By reason of the foregoing, Plaintiff has breached the covenant of quiet enjoyment,

entitling Defendant to an abatement of rent for the Premises.

75. In addition, Defendant is entitled to, inter alia, damages incurred as a result of

Plaintiff’s wrongful constructive eviction of Defendant, including, but not limited to, moving costs

and expenses.

76. Defendant respectfully demands judgment against Plaintiff for: (a) an

abatement/refund of already-paid rent for the Premises, in an amount to be determined at trial, but

believed to be no less than an amount equal to the period commencing one (1) year prior to the
9

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commencement of this action; and (b) damages for Defendant’s expenses, costs, and losses

incurred as a result of the constructive eviction, in amount to be determined at trial.

DEMAND FOR RELIEF

WHEREFORE, Defendant demands judgment as follows:

(a) Dismissing Plaintiff’s Complaint in its entirety;

(b) On Defendant’s First Counterclaim, a declaratory judgment that: (i) the Lease is terminated
as of May 4, 2022; (ii) Defendant has no further obligations under the Lease, including the
obligation to pay rent; and (iii) Defendant’s abandonment of the Premises due to constructive
eviction is not an “Event of Default” under the parties’ Lease; and

(c) On Defendant’s Second Counterclaim, a judgment against Plaintiff for: (i) an
abatement/refund of already-paid rent for the Premises, in an amount to be determined at trial,
but believed to be no less than an amount equal to the period commencing one (1) year prior
to the commencement of this action; and (ii) damages for Defendant’s expenses, costs, and
losses incurred as a result of the constructive eviction, in an amount to be determined at trial;
and

(d) Awarding Defendant such other and further relief as this Court deems just and proper.

Dated: New York, New York FOX ROTHSCHILD LLP
November 28, 2022 Attorneys for Defendant

By: /s/ Joshua Kopelowitz
Joshua Kopelowitz
101 Park Avenue, 17th Floor
New York, New York 10178
(646) 601-7619
JKopelowitz@foxrothschild.com

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VERIFICATION

STATEOFNEWYORK )

COUNTYOF NCtÅ) d ) ss.:

)

JAMESHALLER, being duly sworn, deposes and says:

1. I amthe Interim Chief Executive Officer of Physician Affiliate Group of NewYork,

P.C., the defendant herein.

2. I have read the foregoing Answer with Counterclaims and know the contents

thereof; and the same is true to my own knowledge, except as to those matters therein stated to be

alleged upon information and belief, and as to those matters, I believe them to be true. The source

of my information and belief is the books and records of defendant.

3. This Verification is made by deponent because defendant is a professional

corporation and I am the Interim Chief Executive Officer thereof.

J s Haller

Sworn to before methis
day of November, 2022

NOTARYP LIC

VICKI C. BRATHWAITE
Notary Public, State of New
York
No. 01BR6307012
Qualified in Kings County
Commission Expires June30,20

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Document Filed Date

May 17, 2024

Case Filing Date

September 30, 2022

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Exhibit,Appendix: Bvk 55 West 125th Street Llc v. Physician Affiliate Group Of New York, P.C.

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