Preview
FILED: NEW YORK COUNTY CLERK 05/17/2024 06:43 PM INDEX NO. 653599/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/17/2024
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, :
: AMENDED 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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NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/17/2024
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. Additionally, pursuant to Section 5.2, Plaintiff was permitted to close parts of the
common areas for security reasons.
38. Pursuant to Section 5.5 of the Initial Lease, Plaintiff agreed to make all repairs
required under the Initial Lease within 45 days of notice or if the required repairs could not be
completed within 45 days, Plaintiff agreed to diligently pursue such repairs to completion.
39. Pursuant to Section 32 of the Initial Lease, Plaintiff agreed that Defendant was
entitled to peacefully and quietly enjoy the Premises.
40. Pursuant to Section 26 of the Rules and Regulations of the Building (the “House
Rules”), Plaintiff was to request all persons entering the Building to identify themselves and
establish their right to enter the Building.
41. Additionally, pursuant to Section 26 of the House Rules, any person whose
presence in the Building was prejudicial to the safety of tenants could be denied access to the
Building or may be ejected therefrom.
42. Security of the Building is Plaintiff’s responsibility.
43. 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.
44. 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.
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45. 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.
46. On August 23, 2021, Plaintiff advised that it was committed to improving security
in and around the Building (the “August 23rd Letter”).
47. 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;
(c) activation of a Building access control system; (d) the parking attendant would close the garage
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 the main lobby
in first quarter of 2022; and (g) consideration of installment of an elevator floor access system.
48. 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.
49. Despite Plaintiff’s promises, Plaintiff did not install or implement the safety
measures outlined in its August 23rd Letter.
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50. On January 31, 2022, Plaintiff and Defendant held a meeting to address the ongoing
and unaddressed safety concerns.
51. At the meeting, Defendant was assured that the security measures outlined in
Plaintiff’s August 23rd Letter would soon be implemented.
52. Again, Defendant relied upon Plaintiff’s representations and continued to put its
employees at risk by occupying the Premises.
53. Notwithstanding Plaintiff’s continued promises, the measures were not
implemented and safety around the Building and at the Premises did not improve.
54. Defendant’s employees continued to be harassed, accosted, and intimidated by
unauthorized individuals in and around the Building.
55. 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”).
56. Within the March 4th Letter, Defendant outlined that the security measures in
Plaintiff’s August 23rd Letter were still not implemented.
57. 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 in 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
attempted 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.
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58. 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.
59. 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.
60. 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”).
61. 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.
62. Plaintiff still took no action.
63. Thereafter, Defendant’s employees continued to be exposed to dangerous situations
on a daily basis.
64. Defendant relied on Plaintiff to carry out its repeated promises to address the safety
issues and implement security measures at the Building.
65. 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.
66. Plaintiff’s failure to address the safety issues and implement security measures
wrongfully interfered with Defendant’s use and enjoyment of the Premises.
67. As a result, Defendant was forced to vacate and abandon the Premises as of May 4,
2022.
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FILED: NEW YORK COUNTY CLERK 05/17/2024 06:43 PM INDEX NO. 653599/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/17/2024
68. 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)
69. Defendant repeats and re-alleges each and every allegation contained in paragraphs
1 through 68 above as if fully set forth at length herein.
70. 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.
71. As a result of Plaintiff’s wrongful actions, Defendant was forced to vacate and
abandon the Premises on or about May 4, 2022.
72. 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
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)
73. Defendant repeats and re-alleges each and every allegation contained in paragraphs
1 through 72 above as if fully set forth at length therein.
74. There is implied in Defendant’s tenancy of the Premises a covenant of quiet
enjoyment of the Premises.
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75. In addition, pursuant to Section 32 of the Initial Lease, Plaintiff agreed that
Defendant was entitled to peacefully and quietly enjoy the Premises.
76. 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.
77. As a result of Plaintiff’s wrongful actions, Defendant was forced to vacate and
abandon the Premises on or about May 4, 2022.
78. By reason of the foregoing, Plaintiff has breached the covenant of quiet enjoyment,
entitling Defendant to an abatement of rent for the Premises.
79. 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.
80. 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
commencement of this action; and (b) damages for Defendant’s expenses, costs, and losses
incurred as a result of the constructive eviction, in an amount to be determined at trial.
THIRD COUNTERCLAIM
(Breach of Contract)
81. Defendant repeats and re-alleges each and every allegation contained in paragraphs
1 through 80 above as if fully set forth at length therein.
82. The Lease is a valid and binding contract.
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83. 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 and, in exercising its
obligations, Plaintiff was permitted to close parts of the common areas for security reasons.
84. In addition, pursuant to Section 5.5 of the Initial Lease, Plaintiff agreed to make all
repairs required under the Initial Lease within 45 days of notice or if the required repairs could not
be completed within 45 days, Plaintiff agreed to diligently pursue such repair to completion.
85. In maintaining the Building, Plaintiff was permitted to close the parking garage for
security reasons.
86. Moreover, pursuant to Section 26 of the House Rules Plaintiff was obligated request
all persons entering the Building to identify themselves and establish their right to enter the
Building.
87. Plaintiff breached the Lease by (a) failing to maintain the public and common areas
resulting in the persistence of security risks and incidents; and (b) failing to implement safety
measures or take substantive steps, such as closing the parking garage, to remedy the repeated
security breaches in the Premises and Building, despite receiving multiple notices from Defendant
about security incidents between August 5, 2021 and May 11, 2022.
88. By reason of the foregoing, Defendant has suffered damages and is entitled to a
money judgment in a sum to be determined at trial, together with interest thereon, costs, and
expenses.
FOURTH COUNTERCLAIM
(Conversion of Property)
89. Defendant repeats and re-alleges each and every allegation contained in paragraphs
1 through 88 above as if fully set forth at length therein.
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90. After Plaintiff’s constructive eviction of Defendant from the Premises, Landlord
wrongfully exercised dominion over Defendant’s personal property, e.g., furniture, that remained
in the Premises without Defendant’s authorization.
91. Plaintiff remains in control and possession of the Premises and Defendant’s
personal property therein.
92. Defendant has suffered damages as a result of this unlawful interference with its
personal property and is entitled to recover damages for the cost of replacement of such personal
property, in an amount to be determined at trial.
FIFTH COUNTERCLAIM
(Negligent Security)
93. Defendant repeats and re-alleges each and every allegation contained in paragraphs
1 through 92 above as if fully set forth at length therein.
94. Pursuant to the Initial Lease, Plaintiff owed Defendant a duty to make required
repairs to the Premises and Building.
95. Additionally and/or in the alternative, landlords have a common law duty to take
precautions to protect tenants from foreseeable harm.
96. Accordingly, Plaintiff, as landlord, had a common law duty to protect Defendant,
as tenant, from foreseeable harm in the Building and Premises.
97. Plaintiff breached its duty by failing to institute protective measures to protect
Defendant from such issues despite repeated notice from Defendant of reoccurring safety issues.
98. As a direct and proximate result of Plaintiff’s failure to exercise a reasonable
standard of care, Defendant has suffered damages and respectfully demands judgment against
Plaintiff for Defendant’s expenses, costs, and losses incurred as a result of Plaintiff’s negligence,
in an amount to be determined at trial.
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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;
(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;
(d) On Defendant’s Third Counterclaim, a money judgment against Plaintiff in an amount to
be determined at trial, together with interest thereon, costs, and expenses;
(e) On Defendant’s Fourth Counterclaim, a money judgment for Defendant’s cost of
replacement of personal property, in an amount to be determined at trial;
(f) On Defendant’s Fifth Counterclaim, a money judgment against Plaintiff for Defendant’s
expenses, costs, and losses incurred as a result of Plaintiff’s negligence, in an amount to be
determined at trial; and
(g) Awarding Defendant such other and further relief as this Court deems just and proper.
Dated: New York, New York FOX ROTHSCHILD LLP
17 2024
May __, Attorneys for Defendant
/s/ Joshua Kopelowitz
By: _____________________
Joshua Kopelowitz
Bansari Sheth
101 Park Avenue, 17th Floor
New York, New York 10178
(212) 878-7900
JKopelowitz@foxrothschild.com
BSheth@foxrothschild.com
13
Preview
FILED: NEW YORK COUNTY CLERK 05/17/2024 06:43 PM INDEX NO. 653599/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/17/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------- X BVK 55 WEST 125TH STREET LLC, : Index No.: 653599/2022 : Plaintiff, : : AMENDED VERIFIED ANSWER - against – : WITH COUNTERCLAIMS : PHYSICIAN AFFILIATE GROUP OF NEW YORK, : P.C., : : Defendant. : ------------------------------------------------------------------ X 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. FILED: NEW YORK COUNTY CLERK 05/17/2024 06:43 PM INDEX NO. 653599/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/17/2024 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. 2 FILED: NEW YORK COUNTY CLERK 05/17/2024 06:43 PM INDEX NO. 653599/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/17/2024 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. 3 FILED: NEW YORK COUNTY CLERK 05/17/2024 06:43 PM INDEX NO. 653599/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/17/2024 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”). 4 FILED: NEW YORK COUNTY CLERK 05/17/2024 06:43 PM INDEX NO. 653599/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/17/2024 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. Additionally, pursuant to Section 5.2, Plaintiff was permitted to close parts of the common areas for security reasons. 38. Pursuant to Section 5.5 of the Initial Lease, Plaintiff agreed to make all repairs required under the Initial Lease within 45 days of notice or if the required repairs could not be completed within 45 days, Plaintiff agreed to diligently pursue such repairs to completion. 39. Pursuant to Section 32 of the Initial Lease, Plaintiff agreed that Defendant was entitled to peacefully and quietly enjoy the Premises. 40. Pursuant to Section 26 of the Rules and Regulations of the Building (the “House Rules”), Plaintiff was to request all persons entering the Building to identify themselves and establish their right to enter the Building. 41. Additionally, pursuant to Section 26 of the House Rules, any person whose presence in the Building was prejudicial to the safety of tenants could be denied access to the Building or may be ejected therefrom. 42. Security of the Building is Plaintiff’s responsibility. 43. 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. 44. 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. 5 FILED: NEW YORK COUNTY CLERK 05/17/2024 06:43 PM INDEX NO. 653599/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/17/2024 45. 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. 46. On August 23, 2021, Plaintiff advised that it was committed to improving security in and around the Building (the “August 23rd Letter”). 47. 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; (c) activation of a Building access control system; (d) the parking attendant would close the garage 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 the main lobby in first quarter of 2022; and (g) consideration of installment of an elevator floor access system. 48. 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. 49. Despite Plaintiff’s promises, Plaintiff did not install or implement the safety measures outlined in its August 23rd Letter. 6 FILED: NEW YORK COUNTY CLERK 05/17/2024 06:43 PM INDEX NO. 653599/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/17/2024 50. On January 31, 2022, Plaintiff and Defendant held a meeting to address the ongoing and unaddressed safety concerns. 51. At the meeting, Defendant was assured that the security measures outlined in Plaintiff’s August 23rd Letter would soon be implemented. 52. Again, Defendant relied upon Plaintiff’s representations and continued to put its employees at risk by occupying the Premises. 53. Notwithstanding Plaintiff’s continued promises, the measures were not implemented and safety around the Building and at the Premises did not improve. 54. Defendant’s employees continued to be harassed, accosted, and intimidated by unauthorized individuals in and around the Building. 55. 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”). 56. Within the March 4th Letter, Defendant outlined that the security measures in Plaintiff’s August 23rd Letter were still not implemented. 57. 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 in 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 attempted 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. 7 FILED: NEW YORK COUNTY CLERK 05/17/2024 06:43 PM INDEX NO. 653599/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/17/2024 58. 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. 59. 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. 60. 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”). 61. 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. 62. Plaintiff still took no action. 63. Thereafter, Defendant’s employees continued to be exposed to dangerous situations on a daily basis. 64. Defendant relied on Plaintiff to carry out its repeated promises to address the safety issues and implement security measures at the Building. 65. 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. 66. Plaintiff’s failure to address the safety issues and implement security measures wrongfully interfered with Defendant’s use and enjoyment of the Premises. 67. As a result, Defendant was forced to vacate and abandon the Premises as of May 4, 2022. 8 FILED: NEW YORK COUNTY CLERK 05/17/2024 06:43 PM INDEX NO. 653599/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/17/2024 68. 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) 69. Defendant repeats and re-alleges each and every allegation contained in paragraphs 1 through 68 above as if fully set forth at length herein. 70. 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. 71. As a result of Plaintiff’s wrongful actions, Defendant was forced to vacate and abandon the Premises on or about May 4, 2022. 72. 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 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) 73. Defendant repeats and re-alleges each and every allegation contained in paragraphs 1 through 72 above as if fully set forth at length therein. 74. There is implied in Defendant’s tenancy of the Premises a covenant of quiet enjoyment of the Premises. 9 FILED: NEW YORK COUNTY CLERK 05/17/2024 06:43 PM INDEX NO. 653599/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/17/2024 75. In addition, pursuant to Section 32 of the Initial Lease, Plaintiff agreed that Defendant was entitled to peacefully and quietly enjoy the Premises. 76. 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. 77. As a result of Plaintiff’s wrongful actions, Defendant was forced to vacate and abandon the Premises on or about May 4, 2022. 78. By reason of the foregoing, Plaintiff has breached the covenant of quiet enjoyment, entitling Defendant to an abatement of rent for the Premises. 79. 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. 80. 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 commencement of this action; and (b) damages for Defendant’s expenses, costs, and losses incurred as a result of the constructive eviction, in an amount to be determined at trial. THIRD COUNTERCLAIM (Breach of Contract) 81. Defendant repeats and re-alleges each and every allegation contained in paragraphs 1 through 80 above as if fully set forth at length therein. 82. The Lease is a valid and binding contract. 10 FILED: NEW YORK COUNTY CLERK 05/17/2024 06:43 PM INDEX NO. 653599/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/17/2024 83. 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 and, in exercising its obligations, Plaintiff was permitted to close parts of the common areas for security reasons. 84. In addition, pursuant to Section 5.5 of the Initial Lease, Plaintiff agreed to make all repairs required under the Initial Lease within 45 days of notice or if the required repairs could not be completed within 45 days, Plaintiff agreed to diligently pursue such repair to completion. 85. In maintaining the Building, Plaintiff was permitted to close the parking garage for security reasons. 86. Moreover, pursuant to Section 26 of the House Rules Plaintiff was obligated request all persons entering the Building to identify themselves and establish their right to enter the Building. 87. Plaintiff breached the Lease by (a) failing to maintain the public and common areas resulting in the persistence of security risks and incidents; and (b) failing to implement safety measures or take substantive steps, such as closing the parking garage, to remedy the repeated security breaches in the Premises and Building, despite receiving multiple notices from Defendant about security incidents between August 5, 2021 and May 11, 2022. 88. By reason of the foregoing, Defendant has suffered damages and is entitled to a money judgment in a sum to be determined at trial, together with interest thereon, costs, and expenses. FOURTH COUNTERCLAIM (Conversion of Property) 89. Defendant repeats and re-alleges each and every allegation contained in paragraphs 1 through 88 above as if fully set forth at length therein. 11 FILED: NEW YORK COUNTY CLERK 05/17/2024 06:43 PM INDEX NO. 653599/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/17/2024 90. After Plaintiff’s constructive eviction of Defendant from the Premises, Landlord wrongfully exercised dominion over Defendant’s personal property, e.g., furniture, that remained in the Premises without Defendant’s authorization. 91. Plaintiff remains in control and possession of the Premises and Defendant’s personal property therein. 92. Defendant has suffered damages as a result of this unlawful interference with its personal property and is entitled to recover damages for the cost of replacement of such personal property, in an amount to be determined at trial. FIFTH COUNTERCLAIM (Negligent Security) 93. Defendant repeats and re-alleges each and every allegation contained in paragraphs 1 through 92 above as if fully set forth at length therein. 94. Pursuant to the Initial Lease, Plaintiff owed Defendant a duty to make required repairs to the Premises and Building. 95. Additionally and/or in the alternative, landlords have a common law duty to take precautions to protect tenants from foreseeable harm. 96. Accordingly, Plaintiff, as landlord, had a common law duty to protect Defendant, as tenant, from foreseeable harm in the Building and Premises. 97. Plaintiff breached its duty by failing to institute protective measures to protect Defendant from such issues despite repeated notice from Defendant of reoccurring safety issues. 98. As a direct and proximate result of Plaintiff’s failure to exercise a reasonable standard of care, Defendant has suffered damages and respectfully demands judgment against Plaintiff for Defendant’s expenses, costs, and losses incurred as a result of Plaintiff’s negligence, in an amount to be determined at trial. 12 FILED: NEW YORK COUNTY CLERK 05/17/2024 06:43 PM INDEX NO. 653599/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/17/2024 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; (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; (d) On Defendant’s Third Counterclaim, a money judgment against Plaintiff in an amount to be determined at trial, together with interest thereon, costs, and expenses; (e) On Defendant’s Fourth Counterclaim, a money judgment for Defendant’s cost of replacement of personal property, in an amount to be determined at trial; (f) On Defendant’s Fifth Counterclaim, a money judgment against Plaintiff for Defendant’s expenses, costs, and losses incurred as a result of Plaintiff’s negligence, in an amount to be determined at trial; and (g) Awarding Defendant such other and further relief as this Court deems just and proper. Dated: New York, New York FOX ROTHSCHILD LLP 17 2024 May __, Attorneys for Defendant /s/ Joshua Kopelowitz By: _____________________ Joshua Kopelowitz Bansari Sheth 101 Park Avenue, 17th Floor New York, New York 10178 (212) 878-7900 JKopelowitz@foxrothschild.com BSheth@foxrothschild.com 13