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| (FILED: NEW YORK COUNTY CLERK 11/05/2014 05:13 PM INDEX NO. 160991/2014
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/05/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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TRIBECA DELICATESSEN, INC. d/b/a TRIBECA DELI
and SERGIO URENA,
Index No. [G0%u\25 \4
Plaintiffs,
AFFIDAVIT IN SUPPORT
- against -
IP MORTGAGE BORROWER, LLC and
WB/STELLAR IP OWNER, LLC
Defendants.
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STATE OF New York )
)ss.
COUNTY OF Nzw foun )
SERGIO URENA, being duly sworn, deposes and says:
1 That I am the Principal and authorized signatory of Plaintiff TRIBECA
DELICATESSEN, INC. d/b/a TRIBECA DELI, a New York Corporation,
with its principal place of business located at 368 % Greenwich Street, New
York, NY 10013, in the State and City of New York. I am fully familiar with
the facts and circumstances herein.
That I make this affidavit in support of the instant order to show cause which
seeks a Preliminary Injunction
The herein action for a Declaratory Judgment and other relief is being
commenced simultaneously, with the service of this Order to Show Cause. A
copy of the Summons and Verified Complaint are annexed hereto as Exhibit
884.2480
A and made a part hereof. As the Court will see from the Complaint, the
central issue herein involves
At no point in time was a real estate tax escalations clause to be calculated
based on the entire block and lot on which the premises is located.
The Lease does not refer to the tax block and lot.
The Lease rider Paragraph 48 only refers to the increase in tax escalations to
be calculated based upon the building in which the premises is located.
Moreover, the actual block and lot used by the defendant(s) to calculate real
estate tax escalations does not even include the subject building, as shown on
the DHPD records, copies of which are annexed hereto as Exhibit D.
This has always been the only agreement with the Defendants.
I did not realize until recently that I was actually being billed for a portion of
the tax escalations for no less than twenty four (24) buildings.
10. No one in their right mind would have agreed to such an increase. At this
rate, I could very well be paying in the future more in real estate tax
escalations than in actual rent. It makes no economic sense, was never agreed
to and this is not what the language in the lease states.
11 I have tremendously overpaid the real estate tax escalations from the inception
of the tenancy, and seek a refund thereof, together with actual damages, treble
damages and punitive damages.
12. The facts are set forth in the annexed verified complaint (EXHIBIT A).
13 Plaintiff moves by Order to Show Cause in order to protect its valuable lease,
and to enjoin the Defendant from violating same further.
884.2480
14. No previous application for the same or similar relief has been made to this or
any other Court.
WHEREFORE, it is respectfully requested that the Court grant the Plaintiffs motion,
including for a preliminary injunction and issue an Order: (1) Restraining and enjoining
the Defendants , their agents, attorneys and / or assigns, from in any way commencing or
pursuing any proceedings or taking any actions to evict or cause the removal of the
Plaintiff from the premises known as and located at 368 % Greenwich Street, New York,
NY 10013, specifically staying the Defendants from proceeding under L&T Index #
72497/2014 including without limitation staying issuance and / or execution of any
warrant of eviction; and (2) Restraining and enjoining the Defendants, their agents,
attorneys and / or assigns from in any way collection or charging additional rent in the
form of real estate tax escalation charges; and (3) Pursuant to CPLR § 602(b) staying
L&T Index # 72497/2014 and transferring said proceeding to this Court and
consolidating it with this action in order for all claims and counterclaims arising out of
and related to the real estate tax escalation charges to be adjudicated in one forum; and
(4) Rescinding retroactively to the inception of the tenancy, Paragraph 48 of the Lease
Rider as relating to the real estate tax escalation charges on the grounds of fraud,
overreaching, unenforceability, and / or unconscionability, and issuing a money judgment
in favor of Plaintiff in the amount of all real estate tax escalation charges paid since the
inception of the tenancy, with treble and punitive damages; or alternatively, (5)
Reforming retroactively to the inception of the tenancy, Paragraph 48 of the Lease Rider
as relating to the real estate tax escalation charges on the grounds of fraud, overreaching,
unenforceability, unconscionability and / or unjust enrichment, and issuing a money
judgment in favor of Plaintiff in the amount of all real estate tax escalation charges paid
since the inception of the tenancy, with treble and punitive damages; or alternatively, (6)
issuing a money judgment in favor of Plaintiff in the amount of all real estate tax
escalation charges paid since the inception of the tenancy, with treble and punitive
damages, for breach of contract; and (7) award the Plaintiff such other and further relief
as to this Court may seem just and proper.
SERGIO U INA, President
Sworn to before me this
> ‘day of November 2014
N [hell Nal
|NOTARY |
8x -G, O2MU6I31996 STATE
NOTARY PUBLIC ission Expionre zorz
Augu
sst22,
884.2480
Preview
| (FILED: NEW YORK COUNTY CLERK 11/05/2014 05:13 PM INDEX NO. 160991/2014 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/05/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK me eeen ne nennnnenennennnannnnneenennecncnnnneneennnenennn nn en en nenee! TRIBECA DELICATESSEN, INC. d/b/a TRIBECA DELI and SERGIO URENA, Index No. [G0%u\25 \4 Plaintiffs, AFFIDAVIT IN SUPPORT - against - IP MORTGAGE BORROWER, LLC and WB/STELLAR IP OWNER, LLC Defendants. mene n enn n ene e mene nen e nnn n em enen nen nenenenen en ee nn nne! STATE OF New York ) )ss. COUNTY OF Nzw foun ) SERGIO URENA, being duly sworn, deposes and says: 1 That I am the Principal and authorized signatory of Plaintiff TRIBECA DELICATESSEN, INC. d/b/a TRIBECA DELI, a New York Corporation, with its principal place of business located at 368 % Greenwich Street, New York, NY 10013, in the State and City of New York. I am fully familiar with the facts and circumstances herein. That I make this affidavit in support of the instant order to show cause which seeks a Preliminary Injunction The herein action for a Declaratory Judgment and other relief is being commenced simultaneously, with the service of this Order to Show Cause. A copy of the Summons and Verified Complaint are annexed hereto as Exhibit 884.2480 A and made a part hereof. As the Court will see from the Complaint, the central issue herein involves At no point in time was a real estate tax escalations clause to be calculated based on the entire block and lot on which the premises is located. The Lease does not refer to the tax block and lot. The Lease rider Paragraph 48 only refers to the increase in tax escalations to be calculated based upon the building in which the premises is located. Moreover, the actual block and lot used by the defendant(s) to calculate real estate tax escalations does not even include the subject building, as shown on the DHPD records, copies of which are annexed hereto as Exhibit D. This has always been the only agreement with the Defendants. I did not realize until recently that I was actually being billed for a portion of the tax escalations for no less than twenty four (24) buildings. 10. No one in their right mind would have agreed to such an increase. At this rate, I could very well be paying in the future more in real estate tax escalations than in actual rent. It makes no economic sense, was never agreed to and this is not what the language in the lease states. 11 I have tremendously overpaid the real estate tax escalations from the inception of the tenancy, and seek a refund thereof, together with actual damages, treble damages and punitive damages. 12. The facts are set forth in the annexed verified complaint (EXHIBIT A). 13 Plaintiff moves by Order to Show Cause in order to protect its valuable lease, and to enjoin the Defendant from violating same further. 884.2480 14. No previous application for the same or similar relief has been made to this or any other Court. WHEREFORE, it is respectfully requested that the Court grant the Plaintiffs motion, including for a preliminary injunction and issue an Order: (1) Restraining and enjoining the Defendants , their agents, attorneys and / or assigns, from in any way commencing or pursuing any proceedings or taking any actions to evict or cause the removal of the Plaintiff from the premises known as and located at 368 % Greenwich Street, New York, NY 10013, specifically staying the Defendants from proceeding under L&T Index # 72497/2014 including without limitation staying issuance and / or execution of any warrant of eviction; and (2) Restraining and enjoining the Defendants, their agents, attorneys and / or assigns from in any way collection or charging additional rent in the form of real estate tax escalation charges; and (3) Pursuant to CPLR § 602(b) staying L&T Index # 72497/2014 and transferring said proceeding to this Court and consolidating it with this action in order for all claims and counterclaims arising out of and related to the real estate tax escalation charges to be adjudicated in one forum; and (4) Rescinding retroactively to the inception of the tenancy, Paragraph 48 of the Lease Rider as relating to the real estate tax escalation charges on the grounds of fraud, overreaching, unenforceability, and / or unconscionability, and issuing a money judgment in favor of Plaintiff in the amount of all real estate tax escalation charges paid since the inception of the tenancy, with treble and punitive damages; or alternatively, (5) Reforming retroactively to the inception of the tenancy, Paragraph 48 of the Lease Rider as relating to the real estate tax escalation charges on the grounds of fraud, overreaching, unenforceability, unconscionability and / or unjust enrichment, and issuing a money judgment in favor of Plaintiff in the amount of all real estate tax escalation charges paid since the inception of the tenancy, with treble and punitive damages; or alternatively, (6) issuing a money judgment in favor of Plaintiff in the amount of all real estate tax escalation charges paid since the inception of the tenancy, with treble and punitive damages, for breach of contract; and (7) award the Plaintiff such other and further relief as to this Court may seem just and proper. SERGIO U INA, President Sworn to before me this > ‘day of November 2014 N [hell Nal |NOTARY | 8x -G, O2MU6I31996 STATE NOTARY PUBLIC ission Expionre zorz Augu sst22, 884.2480