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FILED: NEW YORK COUNTY CLERK 11/16/2014 08:10 PM INDEX NO. 160991/2014
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 11/16/2014
SUPREME COURT OF THE STATE OF NEW YORK Index No.: 160991/2014
COUNTY OF NEW YORK: IAS PART 57
TRIBECA DELICATESSEN, INC. AFFIRMATION IN
d/b/a TRIBECA DELI, and SUPPORT OF CROSS-
SERGIO URENA, MOTION TO DISMISS
AND IN OPPOSITION TO
Plaintiffs, ORDER TO SHOW
CAUSE TO
-against- CONSOLIDATE AND/FOR
AN INJUNCTION
IP MORTGAGE BORROWER, LLC, and
WB/STELLAR IP IP, LLC,
Defendants.
Joseph Goldsmith, Esq., an attorney duly admitted to practice law before the courts of the
State of New York, under penalties of perjury, pursuant to the CPLR, hereby affirms as follows:
1. I am a partner of Kossoff, PLLC, attorneys of record for IP Mortgage Borrower,
LLC (“IP”), the owner and landlord of 368 ½ Greenwich Street, New York, New York
(“Premises”).
2. I am fully familiar with the facts and circumstances relevant to the instant action.
My knowledge is premised upon a review of the pleadings, documents, memoranda and
correspondence contained in my office file, my conversations with Defendants and/or their agents,
and my independent research and investigation.
3. This Affirmation is submitted in support of Defendants’ pre-answer cross-motion
which seeks an Order: (a) pursuant to CPLR §§3211(a)(1) and (7), dismissing the Complaint on
the ground that the Complaint fails to state a cause of action and/or a defense is founded on
documentary evidence; and (b) for such other and further relief as this Court deems just and proper.
4. This Affirmation is further submitted in opposition to the order to show cause to
consolidate this action with a prior Civil Court proceeding and/or for an injunction.
5. In summary, the instant matter is straightforward. It is evident from the Lease itself
that Tenant is obligated to pay a percentage of the real estate tax escalations attributable to
Independence Plaza, a complex of several buildings, not just the Premises, a single storefront in
Independence Plaza. However, in a desperate attempt to forestall an impending eviction issued
pursuant to an Order and Judgment in the Civil Court, Plaintiffs have resorted to baseless hyperbole
in an attempt to distract this Court from the express terms of Tenant’s written lease. Plaintiffs’
Complaint is nothing more than a recitation of inapplicable contract law principles which are
wholly unsupported. Plaintiffs’ scatter-shot approach should not be mistaken for actual merit. As
detailed herein, documentary evidence demonstrates that Plaintiffs’ claims do not hold water. As
such, the Complaint should be dismissed and Plaintiffs’ application for an injunction denied.
6. Moreover, in order to support their meritless application to consolidate and for an
injunction, Plaintiffs have made material, verifiable misrepresentations to this Court. Contrary to
Plaintiffs’ self-serving claims, there is no proceeding pending in the Civil Court to recover the
Premises due to Plaintiffs’ failure to tender real estate tax escalation payments due as additional
rent. As detailed infra, IP successfully commenced a summary proceeding to recover the Premises
based upon several of Tenant’s defaults under the Lease for the Premises, none of which involve
real estate tax escalation payments. Plaintiffs have also misrepresented the status of its
counterclaim in this summary proceeding regarding the real estate tax escalation payments. IP
sought and was granted summary judgment on its own claims and the counterclaims in the
summary proceeding, the thrust of which, as it pertained to the Tenant’s counterclaim regarding
real estate tax escalation payments, was that Plaintiffs had interposed the claim in the wrong forum
and thus the Civil Court had no jurisdiction to adjudicate it.The only issue currently pending
before the Civil Court is IP’s motion for attorneys’ fees and use and occupancy, use and occupancy
that does not include the outstanding real estate tax escalations. Plaintiffs may not use this Court
as an appellate forum to collateral attack the Civil Court’s rulings. Even if the Court declines to
dismiss the Complaint, the outcome of the instant action has no bearing on the pending summary
proceeding in Civil Court. Accordingly, there is simply no basis for an injunction staying the Civil
Court proceeding.
STATEMENT OF FACTS
7. As detailed and found previously in the Civil Court’s Order and Judgment, IP is the
owner and landlord of the Premises pursuant to a deed, dated June 5, 2013. The Deed expressly
details that it was conveyed title to all buildings and improvements located on Block 142, Lot 25.
The Deed specifically articulates conveyed on Block 142, Lot 25 were the properties known as
310 Greenwich Street, 312-326 Greenwich Street, 344-346 Greenwich Street, 350-354 Greenwich
Street, 356-362 Greenwich Street, 364 Greenwich Street, 366-376 Greenwich Street, 370-378
Greenwich Street, and 43-45 Harrison Street, of which the Premises is within that range and a part.
A certified copy of the deed is annexed hereto as Exhibit “A”.
8. Tribeca Deli is the commercial tenant of the Premises whose last written lease,
dated January 28, 2008, was by and between WB/Stellar, as predecessor-in-interest to IP, as
landlord, and Tribeca Deli, as tenant (“Lease”). A copy of the Lease and Rider are annexed hereto
as Exhibit “B”. The very first paragraph on the very first page of the Lease defines the “building”
as “Independence Plaza”, not 368 ½ Greenwich Street. Specifically, the Lease defines the premises
leased to Tribeca Deli as the “commercial retail space at 368 ½ Greenwich Street in the building
known as Independence Plaza, in the Borough of Manhattan, City of New York” (emphasis added).
See Exhibit “B”.
9. The Premises is one storefront in Independence Plaza1, a complex of buildings
located in Manhattan on Block 142, Lot 25, a summary of which buildings, including the Premises,
were detailed in the Lease and are also contained Boro/Block/Lot summary on file with the NYC
Department of Buildings and annexed hereto as Exhibit “C” (collectively “Independence Plaza”).
A review of the Property Profile Overview on file with the NYC Department of Buildings further
establishes that 368 ½ Greenwich Street is located on Block 142, Lot 25, and otherwise known as
366-376 Greenwich. See Exhibit “C”. In addition, the Multiple Registration information on file
with the NYC Department of Housing Preservation and Development establishes that 368 ½
Greenwich Street is located on Block 142, Lot 25, and otherwise known as 366-376 Greenwich.
A copy of the Property Profile Overview is annexed hereto as Exhibit “D”.
10. Paragraph 48 of the Rider of the Lease requires Tenant to pay, as additional rent, 1%
of all Real Estate Taxes for the building above and beyond the Real Estate Taxes incurred for the tax
period of July 2007/June 2008. Paragraph 48 defines the “building” as the building in which the
Premises are located and the land upon which the building is situated. Paragraph 48 further defines
“Real Estate Taxes”, in relevant part, as “all taxes and/or assessments or imposed…upon or against
the land and/or building of which the [Premises] form a part. See Exhibit “B”.
11. Previously, as detailed in the Notice of Petition and Petition, dated July 25, 2014,
in a separate summary proceeding entitled IP Mortgage Borrower, LLC v. Tribeca Delicatessen,
Inc. d/b/a Tribeca Deli, et.al., L&T Index No. 72497/2014 (“Civil Court Proceeding”), IP
commenced a proceeding against Plaintiffs herein on the grounds that the Tenant has violated and
continues to violate substantial obligations of its tenancy at the Premises, as well as paragraphs 2,
1
http://www.stellarmanagement.com/no-fee-NYC-rentals/new-york-city-neighborhoods/Tribeca-
rental-apartment-listings-Independence-Plaza
17(1), 42, 46, and 66 of the Lease, by: (i) failing to install new security gates which have a see-
through grid type design to the exterior of the Premises; (ii) installing and using a ANSUL system
for cooking food in the Premises, which has also been objected to by IP’s insurance carrier; (iii)
installing and using of deep fat fryer in the Premises, which has also been objected to by IP’s
insurance carrier; and (iv) failing to provide IP the requisite comprehensive generally liability, fire,
and extended coverage insurance policies naming IP and its mortgagee as additional insureds. A
copy of the Notice of Petition and Petition in the Civil Court Proceeding is annexed hereto as
Exhibit “E”.
12. As is evident from the Petition, Petitioner did not seek to recover the Premises due
to Plaintiffs’ failure to tender real estate tax escalation payments due as additional rent. On August
22, 2014, Plaintiffs’ by its counsel, interposed an Answer and Counterclaims. A copy of the
Answer is annexed hereto as Exhibit “F”.
13. IP moved for summary judgment on the claims in the Petition and the two
counterclaims interposed in the Civil Court Proceeding by Plaintiffs herein. A copy of IP’s Notice
of Motion for Summary Judgment, Affirmation, and Affidavit, sans Exhibits, are collectively
annexed hereto as Exhibit “G”. As it pertained to the Tenant’s counterclaim regarding real estate
tax escalation payments, IP argued that the Tenant had interposed the claim in the wrong forum
and thus the Civil Court had no jurisdiction to adjudicate it.
14. By Decision/Order, entered October 23, 2014 (“Civil Court Decision/Order”), the
Honorable James E. d’Auguste, JCC, granted IP’s motion for summary judgment in the Civil Court
Proceeding in its entirety, finding that IP established its entitlement to judgment in its favor on its
causes of action and Plaintiffs’ counterclaims as a matter of law. A Judgment of Possession and
Warrant of Eviction were issued in IP’s favor, with execution of the Warrant for stayed 30 days
for Plaintiffs herein to vacate the Premises. A copy of the Civil Court Decision/Order and the
Judgment of Possession are annexed hereto collectively as Exhibit “H”. Plaintiffs herein served
a notice of appeal, dated October 24, 2014, of the Civil Court Decision/Order.
15. Thereafter, on November 5, 2014, Plaintiffs e-filed the Summons and Complaint in
the instant action. See Exhibit “A” annexed to Plaintiffs’ motion Plaintiffs also brought the instant
order to show cause before this Court seeking a temporary restraining order (“TRO”): i) of the
Civil Court Proceeding; and ii) enjoining IP from commencing or pursuing any proceeding to
collect the real estate tax escalation charges due pursuant to the Lease. This Court denied the
portion of Plaintiffs’ application seeking a TRO of the Civil Court Proceeding but granted a TRO
enjoining IP from commencing or pursuing any proceeding to collect the real estate tax escalation
charges.
16. Concomitantly, IP made a motion as it represented it would, returnable November
17, 2014, in the Civil Court Proceeding for an award of its attorneys’ fees, costs and disbursements
pursuant to the terms of the Lease, as well as for outstanding use and occupancy for the Premises,
less additional rent attributable to Tenant’s proportionate share of the Real Estate Taxes for the
Building, without prejudice to obtaining a judgment for the fair market use and occupancy of the
Premises and without prejudice to collect the outstanding additional rent for Respondent’s
proportional share of the increase in Real Estate taxes. A copy of the IP’s Notice of Motion for an
award of attorneys’ fees and use and occupancy is annexed hereto as Exhibit “I”.
17. As detailed herein and accompanying Memorandum of Law, Plaintiffs have failed
to articulate a cause of action and/or Defendants have a complete defense to Plaintiffs’ claims as
evidenced by documentary evidence. Accordingly, Plaintiffs’ Complaint must be dismissed in its
entirety as a matter of law and their order to show cause for a preliminary injunction denied.
IN SUPPORT OF THE CROSS-MOTION
18. Plaintiffs’ causes of action in the Complaint are contradicted by the express terms
of the Lease and are, as a result, substantively infirm, mandating dismissal. The express provisions
of the Lease are clear. Notwithstanding Plaintiffs’ self-serving assertions, the Lease defines the
premises leased to Tribeca Deli as the “commercial retail space at 368 ½ Greenwich Street in the
building known as Independence Plaza, in the Borough of Manhattan, City of New York” (emphasis
added). See Exhibit “B”. Simply referring in the Complaint to “368 ½ Greenwich Street” as a
“building” does not make it so. The fact is that it is not, and the Civil Court has already heard this
argument from Plaintiffs herein and found it lacking. In opposition to the summary judgment
motion in the Civil Court proceeding, Plaintiffs unconvincingly already argued that IP was not the
owner of the Premises because the Premises, 368 ½ Greenwich Street, was a separate building not
listed on the Deed. As has already been demonstrated at length to the satisfaction of the Civil Court,
“368 ½ Greenwich Street” is only a storefront and the name of the premises leased to Tenant, which
is but part of the building, which is Independence Plaza. The designation of “368 ½ Greenwich Street”
for the Premises is akin to a suite number for a set of offices within a larger building or an apartment
number.
19. Paragraph 48 of the Rider of the Lease requires Tenant to pay, as additional rent, 1%
of all Real Estate Taxes for Independence Plaza above and beyond the Real Estate Taxes incurred for
the tax period of July 2007/June 2008. Plaintiffs cannot credibly claim that they thought real estate
tax escalations would be calculated as a percentage of only the real estate taxes attributable to the
Premises when the Premises is just a storefront and not an individual building at all.Plaintiffs’
argument willfully elides over the fact that “368 ½ Greenwich Street” is not a building, but only a
premises, similar to “Suite 401” or “Suite 806” for the law office of the parties’ respective attorneys.
IP would not more receive a real estate tax bill for the Premises than it would for any other individual
unit or group of units in any particular building.
20. Indeed, Plaintiffs’ own exhibits demonstrate the disingenuous of their claims. Exhibit
“C” to their motion demonstrates that Plaintiffs have been aware for years that the real estate tax
escalations they are obligated to pay are based upon the total tax attributable to Independence Plaza
– not 368 ½ Greenwich Street. For example, Plaintiffs’ Exhibit “C” evidences that at least since
August 1, 2009, the tax bills reflect that the real estate tax escalations Tenant is required to pay is a
portion of Independence Plaza’s total taxes – not taxes attributable only to 368 ½ Greenwich Street.
21. The First Cause of Action in the Complaint, which seeks a declaratory judgment, starts
with the misrepresentation by Plaintiffs that the Civil Court Proceeding was on “fabricated grounds”
and to evict Tenant for challenging the real estate tax escalations due. See Paragraph “23” of the
Complaint. The Civil Court Decision/Order demonstrates the validity of IP’s claims and the Petition
demonstrates that the real estate tax escalations due from Tenant were not the basis for the termination
of Tenant’s tenancy. More importantly, these same documents demonstrate the frivolity of Plaintiffs’
assertion that a declaratory judgment is necessary to prevent Tenant from losing its tenancy. The real
estate tax escalation payments due are wholly separate from the basis for IP’s successful holdover
proceeding.
22. Merely couching its claim in terms for a declaratory judgment is insufficient. As
detailed supra, the terms of the Lease are clear with respect to the manner in which Tenant’s real
estate tax escalation payment obligations would be calculated. Accordingly, Plaintiffs have failed to
state a cause of action for this equitable relief.
23. Plaintiffs’ current assertions that the real estate tax escalation provisions of the Lease
are unconscionable, unenforceable, the product of mutual mistake, fraudulent misrepresentation,
equitably estopped, unjust enrichment and/or breach of contract – a veritable panoply of contract law
terms – also fail. As is clear from the Complaint, the essence of all of Plaintiffs’ claims is simple –
Tenant no longer want to be obligated to honor the bargained-for and negotiated contract terms that
it agreed to in the Lease. Plaintiffs’ desire to re-write the terms of the Lease, some seven (7) years
after the Lease was executed, is irrelevant.
24. There has been no “mutual mistake” – as is evident from Exhibit “C” to Plaintiffs’
application, IP is under no misapprehension regarding Tenant’s obligation to pay escalation charges
based upon the total real estate taxes charged for Independence Plaza. Indeed, Plaintiffs’ Exhibit “C”
shows that IP has always recognized that the Lease contemplates the charges to be calculated in this
matter.
25. Plaintiffs’ remaining claims are similarly conclusory, boilerplate recitations and,
therefore, deficient. With respect to the fraudulent misrepresentation claim – Plaintiffs claim they
were “misled” into believing that the real estate tax escalations would be calculated as a percentage
of the taxes charged only for the Premises, but fail to identify how any action or inaction by
Defendants allegedly misled them. Rather, Plaintiffs themselves demonstrate that since at least 2009,
IP has expressly reiterated that Plaintiffs’ real estate tax escalation payment obligations are
calculated as a percentage of the total tax attributable to Independence Plaza. See Exhibit “C” annexed
to Plaintiffs’ OSC.
26. Similarly, Plaintiffs do not offer a single factual allegation to support their other
spurious claims that Tenant’s payment obligations are unconscionable, unenforceable, equitably
estopped, unjust enrichment and/or breach of contract. Instead, the Complaint sets forth the same
conclusory assertions over and over: that Tenant purportedly misapprehended the obligations
specifically articulated in the Lease - and effectively reiterated year after year through the real estate
tax statements - without every identifying a single action or statement by any Defendant that led to
this wholly incredible “misunderstanding”. Moreover, only after seven (7) years in possession of the
Premises, and after IP was awarded a Judgment and Warrant of Eviction in the Civil Court, did
Plaintiffs decide that they had struck a bargain they no longer found to their benefit.
27. Neither Plaintiffs’ entreaties nor their vehemence should obfuscate the relevant facts
of this matter. Tenant is a sophisticated corporate entity. It negotiated and executed the Lease and
enjoined possession of the Premises for the past seven (7) years. There is no personal guaranty by
Urena for Tenant’s obligations under the Lease. The Lease is a complete contract which clearly
defines what constitutes the Premises leased to Tenant, that the building was defined as Independence
Plaza, and how the real estate tax escalations would be calculated. Accordingly, the Complaint fails
to set forth any recognizable claims upon which relief may be granted and it must be dismissed.
IN OPPOSITION TO THE MOTION FOR AN INJUNCTION
28. In an attempt to forestall its eviction and collaterally attack the Civil Court
Decision, Plaintiffs commenced the instant action to try to deny IP the right to an expedient
resolution of the summary eviction holdover proceeding in the Civil Court based upon claims
unrelated thereto. Documentary evidence establishes that Plaintiffs have materially misstated both
the nature and the status of the Civil Court Proceeding to this Court. Contrary to Plaintiffs
allegation that “Defendants(s) commenced a holdover proceeding in Civil Court on fabricated
grounds, seeking to evict Plaintiff for challenging the improper charges.” The Petition and the
underlying notices unequivocally evidence that the Civil Court Proceeding was not predicated
upon Plaintiffs failure to tender the real estate tax escalation payments due under the Lease, but on
various other defaults under the Lease. See Exhibit “E”.
29. Plaintiffs have also mislead the Court regarding the status of its counterclaim in this
summary proceeding regarding the real estate tax escalation payments. As detailed herein, IP
sought and was granted summary judgment on its own claims and the counterclaims in the
summary proceeding. As may be clearly seen from the summary judgment motion in the Civil
Court Proceeding, IP sought summary judgment on the second counterclaim for a declaration of
real estate taxes owed, an accounting of the real estate taxes paid by the Tenant since January 28,
2008, and a money judgment for any purported overpayment. The Civil Court Decision/Order
granted IP’s motion in entirety. See Exhibit “H”. The counterclaims were not severed and
Plaintiffs herein are not in jeopardy of being “forced to go to trial in landlord-tenant court on its
counterclaims” or to incur “the additional expense of adjudicating similar claims in two separate
forums.” See Mueller Affrm., Paragraph 33. Simply put, Plaintiffs herein do not have any
pending counterclaims in the Civil Court Proceeding.
30. In addition, Plaintiffs allege that they have overpaid taxes and are entitled to a refund
and treble damages. It is beyond cavil that any alleged injury is of the type wholly remedied by
monetary damages. There is, therefore, no basis for the issuance of equitable relief.
31. Therefore, there is simply no basis to consolidate this action and the Civil Court
Proceeding and to stay the impending eviction or the Civil Court Proceeding on the basis of
Plaintiffs’ claims in this action. Accordingly, Plaintiffs have not alleged any facts which would
warrant the relief it seeks from this Court.
WHEREFORE, it is respectfully requested that that Defendants’ cross-motion to dismiss
be granted in its entirety, that Plaintiffs’ order to show cause for an injunction be denied in its entirety,
and that Defendant be granted such other and further relief as the Court deem just and proper.
Dated: New York, New York
November 15, 2014
/s/ Joseph Goldsmith
Joseph Goldsmith, Esq.
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FILED: NEW YORK COUNTY CLERK 11/16/2014 08:10 PM INDEX NO. 160991/2014 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 11/16/2014 SUPREME COURT OF THE STATE OF NEW YORK Index No.: 160991/2014 COUNTY OF NEW YORK: IAS PART 57 TRIBECA DELICATESSEN, INC. AFFIRMATION IN d/b/a TRIBECA DELI, and SUPPORT OF CROSS- SERGIO URENA, MOTION TO DISMISS AND IN OPPOSITION TO Plaintiffs, ORDER TO SHOW CAUSE TO -against- CONSOLIDATE AND/FOR AN INJUNCTION IP MORTGAGE BORROWER, LLC, and WB/STELLAR IP IP, LLC, Defendants. Joseph Goldsmith, Esq., an attorney duly admitted to practice law before the courts of the State of New York, under penalties of perjury, pursuant to the CPLR, hereby affirms as follows: 1. I am a partner of Kossoff, PLLC, attorneys of record for IP Mortgage Borrower, LLC (“IP”), the owner and landlord of 368 ½ Greenwich Street, New York, New York (“Premises”). 2. I am fully familiar with the facts and circumstances relevant to the instant action. My knowledge is premised upon a review of the pleadings, documents, memoranda and correspondence contained in my office file, my conversations with Defendants and/or their agents, and my independent research and investigation. 3. This Affirmation is submitted in support of Defendants’ pre-answer cross-motion which seeks an Order: (a) pursuant to CPLR §§3211(a)(1) and (7), dismissing the Complaint on the ground that the Complaint fails to state a cause of action and/or a defense is founded on documentary evidence; and (b) for such other and further relief as this Court deems just and proper. 4. This Affirmation is further submitted in opposition to the order to show cause to consolidate this action with a prior Civil Court proceeding and/or for an injunction. 5. In summary, the instant matter is straightforward. It is evident from the Lease itself that Tenant is obligated to pay a percentage of the real estate tax escalations attributable to Independence Plaza, a complex of several buildings, not just the Premises, a single storefront in Independence Plaza. However, in a desperate attempt to forestall an impending eviction issued pursuant to an Order and Judgment in the Civil Court, Plaintiffs have resorted to baseless hyperbole in an attempt to distract this Court from the express terms of Tenant’s written lease. Plaintiffs’ Complaint is nothing more than a recitation of inapplicable contract law principles which are wholly unsupported. Plaintiffs’ scatter-shot approach should not be mistaken for actual merit. As detailed herein, documentary evidence demonstrates that Plaintiffs’ claims do not hold water. As such, the Complaint should be dismissed and Plaintiffs’ application for an injunction denied. 6. Moreover, in order to support their meritless application to consolidate and for an injunction, Plaintiffs have made material, verifiable misrepresentations to this Court. Contrary to Plaintiffs’ self-serving claims, there is no proceeding pending in the Civil Court to recover the Premises due to Plaintiffs’ failure to tender real estate tax escalation payments due as additional rent. As detailed infra, IP successfully commenced a summary proceeding to recover the Premises based upon several of Tenant’s defaults under the Lease for the Premises, none of which involve real estate tax escalation payments. Plaintiffs have also misrepresented the status of its counterclaim in this summary proceeding regarding the real estate tax escalation payments. IP sought and was granted summary judgment on its own claims and the counterclaims in the summary proceeding, the thrust of which, as it pertained to the Tenant’s counterclaim regarding real estate tax escalation payments, was that Plaintiffs had interposed the claim in the wrong forum and thus the Civil Court had no jurisdiction to adjudicate it.The only issue currently pending before the Civil Court is IP’s motion for attorneys’ fees and use and occupancy, use and occupancy that does not include the outstanding real estate tax escalations. Plaintiffs may not use this Court as an appellate forum to collateral attack the Civil Court’s rulings. Even if the Court declines to dismiss the Complaint, the outcome of the instant action has no bearing on the pending summary proceeding in Civil Court. Accordingly, there is simply no basis for an injunction staying the Civil Court proceeding. STATEMENT OF FACTS 7. As detailed and found previously in the Civil Court’s Order and Judgment, IP is the owner and landlord of the Premises pursuant to a deed, dated June 5, 2013. The Deed expressly details that it was conveyed title to all buildings and improvements located on Block 142, Lot 25. The Deed specifically articulates conveyed on Block 142, Lot 25 were the properties known as 310 Greenwich Street, 312-326 Greenwich Street, 344-346 Greenwich Street, 350-354 Greenwich Street, 356-362 Greenwich Street, 364 Greenwich Street, 366-376 Greenwich Street, 370-378 Greenwich Street, and 43-45 Harrison Street, of which the Premises is within that range and a part. A certified copy of the deed is annexed hereto as Exhibit “A”. 8. Tribeca Deli is the commercial tenant of the Premises whose last written lease, dated January 28, 2008, was by and between WB/Stellar, as predecessor-in-interest to IP, as landlord, and Tribeca Deli, as tenant (“Lease”). A copy of the Lease and Rider are annexed hereto as Exhibit “B”. The very first paragraph on the very first page of the Lease defines the “building” as “Independence Plaza”, not 368 ½ Greenwich Street. Specifically, the Lease defines the premises leased to Tribeca Deli as the “commercial retail space at 368 ½ Greenwich Street in the building known as Independence Plaza, in the Borough of Manhattan, City of New York” (emphasis added). See Exhibit “B”. 9. The Premises is one storefront in Independence Plaza1, a complex of buildings located in Manhattan on Block 142, Lot 25, a summary of which buildings, including the Premises, were detailed in the Lease and are also contained Boro/Block/Lot summary on file with the NYC Department of Buildings and annexed hereto as Exhibit “C” (collectively “Independence Plaza”). A review of the Property Profile Overview on file with the NYC Department of Buildings further establishes that 368 ½ Greenwich Street is located on Block 142, Lot 25, and otherwise known as 366-376 Greenwich. See Exhibit “C”. In addition, the Multiple Registration information on file with the NYC Department of Housing Preservation and Development establishes that 368 ½ Greenwich Street is located on Block 142, Lot 25, and otherwise known as 366-376 Greenwich. A copy of the Property Profile Overview is annexed hereto as Exhibit “D”. 10. Paragraph 48 of the Rider of the Lease requires Tenant to pay, as additional rent, 1% of all Real Estate Taxes for the building above and beyond the Real Estate Taxes incurred for the tax period of July 2007/June 2008. Paragraph 48 defines the “building” as the building in which the Premises are located and the land upon which the building is situated. Paragraph 48 further defines “Real Estate Taxes”, in relevant part, as “all taxes and/or assessments or imposed…upon or against the land and/or building of which the [Premises] form a part. See Exhibit “B”. 11. Previously, as detailed in the Notice of Petition and Petition, dated July 25, 2014, in a separate summary proceeding entitled IP Mortgage Borrower, LLC v. Tribeca Delicatessen, Inc. d/b/a Tribeca Deli, et.al., L&T Index No. 72497/2014 (“Civil Court Proceeding”), IP commenced a proceeding against Plaintiffs herein on the grounds that the Tenant has violated and continues to violate substantial obligations of its tenancy at the Premises, as well as paragraphs 2, 1 http://www.stellarmanagement.com/no-fee-NYC-rentals/new-york-city-neighborhoods/Tribeca- rental-apartment-listings-Independence-Plaza 17(1), 42, 46, and 66 of the Lease, by: (i) failing to install new security gates which have a see- through grid type design to the exterior of the Premises; (ii) installing and using a ANSUL system for cooking food in the Premises, which has also been objected to by IP’s insurance carrier; (iii) installing and using of deep fat fryer in the Premises, which has also been objected to by IP’s insurance carrier; and (iv) failing to provide IP the requisite comprehensive generally liability, fire, and extended coverage insurance policies naming IP and its mortgagee as additional insureds. A copy of the Notice of Petition and Petition in the Civil Court Proceeding is annexed hereto as Exhibit “E”. 12. As is evident from the Petition, Petitioner did not seek to recover the Premises due to Plaintiffs’ failure to tender real estate tax escalation payments due as additional rent. On August 22, 2014, Plaintiffs’ by its counsel, interposed an Answer and Counterclaims. A copy of the Answer is annexed hereto as Exhibit “F”. 13. IP moved for summary judgment on the claims in the Petition and the two counterclaims interposed in the Civil Court Proceeding by Plaintiffs herein. A copy of IP’s Notice of Motion for Summary Judgment, Affirmation, and Affidavit, sans Exhibits, are collectively annexed hereto as Exhibit “G”. As it pertained to the Tenant’s counterclaim regarding real estate tax escalation payments, IP argued that the Tenant had interposed the claim in the wrong forum and thus the Civil Court had no jurisdiction to adjudicate it. 14. By Decision/Order, entered October 23, 2014 (“Civil Court Decision/Order”), the Honorable James E. d’Auguste, JCC, granted IP’s motion for summary judgment in the Civil Court Proceeding in its entirety, finding that IP established its entitlement to judgment in its favor on its causes of action and Plaintiffs’ counterclaims as a matter of law. A Judgment of Possession and Warrant of Eviction were issued in IP’s favor, with execution of the Warrant for stayed 30 days for Plaintiffs herein to vacate the Premises. A copy of the Civil Court Decision/Order and the Judgment of Possession are annexed hereto collectively as Exhibit “H”. Plaintiffs herein served a notice of appeal, dated October 24, 2014, of the Civil Court Decision/Order. 15. Thereafter, on November 5, 2014, Plaintiffs e-filed the Summons and Complaint in the instant action. See Exhibit “A” annexed to Plaintiffs’ motion Plaintiffs also brought the instant order to show cause before this Court seeking a temporary restraining order (“TRO”): i) of the Civil Court Proceeding; and ii) enjoining IP from commencing or pursuing any proceeding to collect the real estate tax escalation charges due pursuant to the Lease. This Court denied the portion of Plaintiffs’ application seeking a TRO of the Civil Court Proceeding but granted a TRO enjoining IP from commencing or pursuing any proceeding to collect the real estate tax escalation charges. 16. Concomitantly, IP made a motion as it represented it would, returnable November 17, 2014, in the Civil Court Proceeding for an award of its attorneys’ fees, costs and disbursements pursuant to the terms of the Lease, as well as for outstanding use and occupancy for the Premises, less additional rent attributable to Tenant’s proportionate share of the Real Estate Taxes for the Building, without prejudice to obtaining a judgment for the fair market use and occupancy of the Premises and without prejudice to collect the outstanding additional rent for Respondent’s proportional share of the increase in Real Estate taxes. A copy of the IP’s Notice of Motion for an award of attorneys’ fees and use and occupancy is annexed hereto as Exhibit “I”. 17. As detailed herein and accompanying Memorandum of Law, Plaintiffs have failed to articulate a cause of action and/or Defendants have a complete defense to Plaintiffs’ claims as evidenced by documentary evidence. Accordingly, Plaintiffs’ Complaint must be dismissed in its entirety as a matter of law and their order to show cause for a preliminary injunction denied. IN SUPPORT OF THE CROSS-MOTION 18. Plaintiffs’ causes of action in the Complaint are contradicted by the express terms of the Lease and are, as a result, substantively infirm, mandating dismissal. The express provisions of the Lease are clear. Notwithstanding Plaintiffs’ self-serving assertions, the Lease defines the premises leased to Tribeca Deli as the “commercial retail space at 368 ½ Greenwich Street in the building known as Independence Plaza, in the Borough of Manhattan, City of New York” (emphasis added). See Exhibit “B”. Simply referring in the Complaint to “368 ½ Greenwich Street” as a “building” does not make it so. The fact is that it is not, and the Civil Court has already heard this argument from Plaintiffs herein and found it lacking. In opposition to the summary judgment motion in the Civil Court proceeding, Plaintiffs unconvincingly already argued that IP was not the owner of the Premises because the Premises, 368 ½ Greenwich Street, was a separate building not listed on the Deed. As has already been demonstrated at length to the satisfaction of the Civil Court, “368 ½ Greenwich Street” is only a storefront and the name of the premises leased to Tenant, which is but part of the building, which is Independence Plaza. The designation of “368 ½ Greenwich Street” for the Premises is akin to a suite number for a set of offices within a larger building or an apartment number. 19. Paragraph 48 of the Rider of the Lease requires Tenant to pay, as additional rent, 1% of all Real Estate Taxes for Independence Plaza above and beyond the Real Estate Taxes incurred for the tax period of July 2007/June 2008. Plaintiffs cannot credibly claim that they thought real estate tax escalations would be calculated as a percentage of only the real estate taxes attributable to the Premises when the Premises is just a storefront and not an individual building at all.Plaintiffs’ argument willfully elides over the fact that “368 ½ Greenwich Street” is not a building, but only a premises, similar to “Suite 401” or “Suite 806” for the law office of the parties’ respective attorneys. IP would not more receive a real estate tax bill for the Premises than it would for any other individual unit or group of units in any particular building. 20. Indeed, Plaintiffs’ own exhibits demonstrate the disingenuous of their claims. Exhibit “C” to their motion demonstrates that Plaintiffs have been aware for years that the real estate tax escalations they are obligated to pay are based upon the total tax attributable to Independence Plaza – not 368 ½ Greenwich Street. For example, Plaintiffs’ Exhibit “C” evidences that at least since August 1, 2009, the tax bills reflect that the real estate tax escalations Tenant is required to pay is a portion of Independence Plaza’s total taxes – not taxes attributable only to 368 ½ Greenwich Street. 21. The First Cause of Action in the Complaint, which seeks a declaratory judgment, starts with the misrepresentation by Plaintiffs that the Civil Court Proceeding was on “fabricated grounds” and to evict Tenant for challenging the real estate tax escalations due. See Paragraph “23” of the Complaint. The Civil Court Decision/Order demonstrates the validity of IP’s claims and the Petition demonstrates that the real estate tax escalations due from Tenant were not the basis for the termination of Tenant’s tenancy. More importantly, these same documents demonstrate the frivolity of Plaintiffs’ assertion that a declaratory judgment is necessary to prevent Tenant from losing its tenancy. The real estate tax escalation payments due are wholly separate from the basis for IP’s successful holdover proceeding. 22. Merely couching its claim in terms for a declaratory judgment is insufficient. As detailed supra, the terms of the Lease are clear with respect to the manner in which Tenant’s real estate tax escalation payment obligations would be calculated. Accordingly, Plaintiffs have failed to state a cause of action for this equitable relief. 23. Plaintiffs’ current assertions that the real estate tax escalation provisions of the Lease are unconscionable, unenforceable, the product of mutual mistake, fraudulent misrepresentation, equitably estopped, unjust enrichment and/or breach of contract – a veritable panoply of contract law terms – also fail. As is clear from the Complaint, the essence of all of Plaintiffs’ claims is simple – Tenant no longer want to be obligated to honor the bargained-for and negotiated contract terms that it agreed to in the Lease. Plaintiffs’ desire to re-write the terms of the Lease, some seven (7) years after the Lease was executed, is irrelevant. 24. There has been no “mutual mistake” – as is evident from Exhibit “C” to Plaintiffs’ application, IP is under no misapprehension regarding Tenant’s obligation to pay escalation charges based upon the total real estate taxes charged for Independence Plaza. Indeed, Plaintiffs’ Exhibit “C” shows that IP has always recognized that the Lease contemplates the charges to be calculated in this matter. 25. Plaintiffs’ remaining claims are similarly conclusory, boilerplate recitations and, therefore, deficient. With respect to the fraudulent misrepresentation claim – Plaintiffs claim they were “misled” into believing that the real estate tax escalations would be calculated as a percentage of the taxes charged only for the Premises, but fail to identify how any action or inaction by Defendants allegedly misled them. Rather, Plaintiffs themselves demonstrate that since at least 2009, IP has expressly reiterated that Plaintiffs’ real estate tax escalation payment obligations are calculated as a percentage of the total tax attributable to Independence Plaza. See Exhibit “C” annexed to Plaintiffs’ OSC. 26. Similarly, Plaintiffs do not offer a single factual allegation to support their other spurious claims that Tenant’s payment obligations are unconscionable, unenforceable, equitably estopped, unjust enrichment and/or breach of contract. Instead, the Complaint sets forth the same conclusory assertions over and over: that Tenant purportedly misapprehended the obligations specifically articulated in the Lease - and effectively reiterated year after year through the real estate tax statements - without every identifying a single action or statement by any Defendant that led to this wholly incredible “misunderstanding”. Moreover, only after seven (7) years in possession of the Premises, and after IP was awarded a Judgment and Warrant of Eviction in the Civil Court, did Plaintiffs decide that they had struck a bargain they no longer found to their benefit. 27. Neither Plaintiffs’ entreaties nor their vehemence should obfuscate the relevant facts of this matter. Tenant is a sophisticated corporate entity. It negotiated and executed the Lease and enjoined possession of the Premises for the past seven (7) years. There is no personal guaranty by Urena for Tenant’s obligations under the Lease. The Lease is a complete contract which clearly defines what constitutes the Premises leased to Tenant, that the building was defined as Independence Plaza, and how the real estate tax escalations would be calculated. Accordingly, the Complaint fails to set forth any recognizable claims upon which relief may be granted and it must be dismissed. IN OPPOSITION TO THE MOTION FOR AN INJUNCTION 28. In an attempt to forestall its eviction and collaterally attack the Civil Court Decision, Plaintiffs commenced the instant action to try to deny IP the right to an expedient resolution of the summary eviction holdover proceeding in the Civil Court based upon claims unrelated thereto. Documentary evidence establishes that Plaintiffs have materially misstated both the nature and the status of the Civil Court Proceeding to this Court. Contrary to Plaintiffs allegation that “Defendants(s) commenced a holdover proceeding in Civil Court on fabricated grounds, seeking to evict Plaintiff for challenging the improper charges.” The Petition and the underlying notices unequivocally evidence that the Civil Court Proceeding was not predicated upon Plaintiffs failure to tender the real estate tax escalation payments due under the Lease, but on various other defaults under the Lease. See Exhibit “E”. 29. Plaintiffs have also mislead the Court regarding the status of its counterclaim in this summary proceeding regarding the real estate tax escalation payments. As detailed herein, IP sought and was granted summary judgment on its own claims and the counterclaims in the summary proceeding. As may be clearly seen from the summary judgment motion in the Civil Court Proceeding, IP sought summary judgment on the second counterclaim for a declaration of real estate taxes owed, an accounting of the real estate taxes paid by the Tenant since January 28, 2008, and a money judgment for any purported overpayment. The Civil Court Decision/Order granted IP’s motion in entirety. See Exhibit “H”. The counterclaims were not severed and Plaintiffs herein are not in jeopardy of being “forced to go to trial in landlord-tenant court on its counterclaims” or to incur “the additional expense of adjudicating similar claims in two separate forums.” See Mueller Affrm., Paragraph 33. Simply put, Plaintiffs herein do not have any pending counterclaims in the Civil Court Proceeding. 30. In addition, Plaintiffs allege that they have overpaid taxes and are entitled to a refund and treble damages. It is beyond cavil that any alleged injury is of the type wholly remedied by monetary damages. There is, therefore, no basis for the issuance of equitable relief. 31. Therefore, there is simply no basis to consolidate this action and the Civil Court Proceeding and to stay the impending eviction or the Civil Court Proceeding on the basis of Plaintiffs’ claims in this action. Accordingly, Plaintiffs have not alleged any facts which would warrant the relief it seeks from this Court. WHEREFORE, it is respectfully requested that that Defendants’ cross-motion to dismiss be granted in its entirety, that Plaintiffs’ order to show cause for an injunction be denied in its entirety, and that Defendant be granted such other and further relief as the Court deem just and proper. Dated: New York, New York November 15, 2014 /s/ Joseph Goldsmith Joseph Goldsmith, Esq.