Preview
FILED: NEW YORK COUNTY CLERK 11/19/2014 05:20 PM INDEX NO. 160991/2014
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 11/19/2014
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,
AFFIRMATION IN OPPOSITION
Plaintiffs,
Index No. 160991/2014
- against -
IP MORTGAGE BORROWER, LLC and
WB/STELLAR IP OWNER, LLC
Defendants.
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Nathaniel Muller, an attorney duly admitted to practice before the Courts of the State of
New York, hereby affirms and states under the penalties of perjury that:
1. I am an attorney for the Plaintiff herein. As such, I am fully familiar with the facts
and circumstances of this case based upon the file held by this office.
2. This affirmation of good faith is submitted in opposition to the Defendant’s cross-
motion and in further support of the Plaintiffs’ motion which seeks an Order
enjoining the Defendants from: (a) commencing or pursuing any proceeding,
including without limitation under L&T Index # 72497/2014, or taking any action
to remove or evict Plaintiff from the store premises, known as and located at 368 ½
Greenwich Street, New York, NY 10013, including without limitation issuance and
/ or execution of any warrant of eviction; (b) commencing or pursuing any
proceeding to collect real estate tax escalation charges for the subject premises,
based upon a proportional share of rental square footage that encompasses no less
OUR FILE NUMBER 11426.1
than twenty four (24) buildings, hundreds of residential units and many commercial
units; and (c) for such other and further relief as this Court deems just and proper.
3. Defendants seek dismissal for failure to state a cause of action and based on
documentary evidence. The Defendants’arguments rest on one sentence in the lease
that reads in relevant part: “Commercial Retail Space at 368 ½ Greenwich Street in
the building known as Independence Plaza”.
4. First of all, there is not a single document attached to the cross-motion supporting
the definition of “Independence Plaza”. These words do not even appear in the
deed or other City records.
5. Second, Independence Plaza is not a building. The lease wrongly describes the
premises as being situated in a building known as Independence Plaza. In fact,
Independence Plaza is a complex of no less than twenty four (24) buildings. It is an
abuse of words to call this a building, let alone singular and without a capital “B”.
The lease is flatly and factually objectively wrong in this assertion.
6. Third, this definition of the “building” in which the premises are located is
contradicted by paragraph 48 (a) (4) of the lease, that defines the Building (capital
“B” in the lease) as being the building (singular and no capital “B”) in which the
space is located. Paragraph 48(a)(4) of the lease (Exhibit B to the moving papers)
does not refer to Independence Plaza, nor to calculating real estate tax escalations
based on twenty four (24) buildings but rather only the actual building in which the
space is located. As a reminder, there is no reference in the lease to real estate tax
escalations being calculated based on a tax block and lot.
884.2480
7. Fourth, the City records attached by the Defendants to their cross-motion prove
only one thing, that the premises are at best located in a single building known as
and located at 366 Greenwich Street. If anything, this adds to the Plaintiffs’
contentions of failure to properly calculate the real estate tax escalations. Although
there is a blatant contradiction here again between the Department of Buildings
record (Defendants’ Exhibit D) showing 10 buildings on this lot (but 12 buildings
on Defendants’ Exhibit C), and the HPD records (Plaintiffs’ Exhibit D, showing
24 buildings on this lot.
8. Fifth, Defendants conveniently avoid addressing the request as to how the real
estate tax escalations are actually calculated. The Defendants actually appear to
admit that these tax escalations are indeed calculated based on the tax for all twenty
four (24) buildings. Defendants appear to claim that this is normal.
9. However, not only this is not how lease paragraph 48(a)(4) reads, but in addition,
no business man, in his right mind, would have accepted to pay tax escalations for
24 buildings. This actually would support the contention of unconscionability,
mistake, detrimental reliance (estoppels), unjust enrichment, breach of contract and
/ or fraud made in the summons and complaint. The Plaintiff in his verified
affirmation and verified complaint has clearly stated that this was not the
understanding of the parties.
10. In a recent decision on point, Grand Deli LLC v. Seward Park Housing Inc. index
number 602960/2006, Judge Judith Gische, JSC ruled on June 6, 2007, under very
similar facts, that the Plaintiff had actually a right to challenge how the real estate
tax escalations were collected and to challenge the language in the lease (and
884.2480
supporting consolidation with the housing court case). For the Court’s
convenience, a copy of this decision is annexed hereto as Exhibit A.
11. Clearly, there is no documentary evidence supporting dismissal. To the contrary,
the documents are at best contradictory within the lease and when compared to the
deed and City records, as to the definition of the Building. Plaintiffs’ whole
contention rests on an abusive misinterpretation of two words at the beginning of
the lease, that make no sense factually, and are contradicted by other provisions in
the lease, the deed and City records.
12. This action is not primed for dismissal at this juncture. Much discovery needs to be
completed, before any other conclusions can be reached.
13. In the alternative, Plaintiffs’ cross-motion should be considered as an admission
that the real estate tax escalation should have been calculated based on the tax
increase for 366 Greenwich Street, and not based on the tax increase for 24
buildings (Defendants’ Exhibit A and D).
14. It is clear from the above, that the Defendants do not meet their burden on a motion
to dismiss pursuant to CPLR 3211. As a reminder, on a motion to dismiss, the facts
alleged by the Plaintiffs, are accepted as true and afforded the benefit of every
possible favorable inference. EBC I, Inv. V. Goldman Sachs & Co., 5 NY3d 11, 19
[2005]; Sokoloff v. Harriman Estates Development Corp., 96 NY2d 409, 414
[2001]; PT Bank Central Asia v. ABN Amro Bank NV, 301 AD2d 373, 375-6 [1st
Dept. 2003] unless clearly contradicted by evidence submitted by the moving
parties in connection with the motion (Zanett Lombardier Ltd. v. Maslow, 29 AD3d
495 [1st Dept. 2006].
884.2480
15. Instead, Defendants attempt to gain dismissal by alleging that the Plaintiffs have not
proved all their causes of action in the complaint. The burden is actually on the
Defendants’ to disprove all the claims in order to get dismissal. By failing to do so
and relying on contradictory documents, Defendants have failed to meet their
burden to have the action dismissed.
16. As for the Plaintiffs’ motion, consolidation, the Defendants have not shown some
prejudice to a “substantial right” that will result from consolidation (Maigur v.
Saratogian, 47 AD2d 982 [3rd Dept. 1975]). Plaintiffs’ motion should therefore be
granted.
17. Finally, Defendants seek payment of rent and additional rent in consideration of a
preliminary injunction as well as posting of a bond. First, the Plaintiffs have never
objected to payment of rent. Defendants are holding many rent checks that have not
been deposited. Second, Plaintiffs cannot be ordered to pay additional rent in
consideration of the preliminary injunction, since the real estate tax escalation
makes up most of the additional rent, and is at the heart of this litigation. Third, the
posting of a $1million bond is unconnected to reality. As long as Defendants keep
getting their rent, there is no basis for seeking a bond in consideration of a
preliminary injunction. Plaintiff will agree to pay all outstanding rent and pay on-
going rent, in consideration of the injunction sought herein.
WHEREFORE, itis respectfully requested that the Court deny the Defendants’ cross-
motion and grant the Plaintiff’s 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 ½ 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
884.2480
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
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TRIBECA DELICATESSEN, INC. d/b/a TRIBECA DELI
and SERGIO URENA,
Plaintiffs, Index No. 160991/2014
- against -
IP MORTGAGE BORROWER, LLC and
WB/STELLAR IP OWNER, LLC
Defendants.
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AFFIRMATION IN OPPOSITION AND IN FURTHER SUPPORT WITH
EXHIBITS
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney
admitted to practice in the courts of New York State, certifies
that, uponinformation
and belief
and reasonable inquiry,
the
contentions contained in the annexed document are not frivolous.
Dated: November __, 2014
____________________
Nathaniel Muller
LAW OFFICES OF NATHANIEL MULLER, P.C.
attorneys for Plaintiff Tribeca Deli
1270 Broadway, Suite 806
New York, NY 10001
(646) 256-6003
884.2480
Preview
FILED: NEW YORK COUNTY CLERK 11/19/2014 05:20 PM INDEX NO. 160991/2014 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 11/19/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------x TRIBECA DELICATESSEN, INC. d/b/a TRIBECA DELI and SERGIO URENA, AFFIRMATION IN OPPOSITION Plaintiffs, Index No. 160991/2014 - against - IP MORTGAGE BORROWER, LLC and WB/STELLAR IP OWNER, LLC Defendants. -------------------------------------------------------------------x Nathaniel Muller, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms and states under the penalties of perjury that: 1. I am an attorney for the Plaintiff herein. As such, I am fully familiar with the facts and circumstances of this case based upon the file held by this office. 2. This affirmation of good faith is submitted in opposition to the Defendant’s cross- motion and in further support of the Plaintiffs’ motion which seeks an Order enjoining the Defendants from: (a) commencing or pursuing any proceeding, including without limitation under L&T Index # 72497/2014, or taking any action to remove or evict Plaintiff from the store premises, known as and located at 368 ½ Greenwich Street, New York, NY 10013, including without limitation issuance and / or execution of any warrant of eviction; (b) commencing or pursuing any proceeding to collect real estate tax escalation charges for the subject premises, based upon a proportional share of rental square footage that encompasses no less OUR FILE NUMBER 11426.1 than twenty four (24) buildings, hundreds of residential units and many commercial units; and (c) for such other and further relief as this Court deems just and proper. 3. Defendants seek dismissal for failure to state a cause of action and based on documentary evidence. The Defendants’arguments rest on one sentence in the lease that reads in relevant part: “Commercial Retail Space at 368 ½ Greenwich Street in the building known as Independence Plaza”. 4. First of all, there is not a single document attached to the cross-motion supporting the definition of “Independence Plaza”. These words do not even appear in the deed or other City records. 5. Second, Independence Plaza is not a building. The lease wrongly describes the premises as being situated in a building known as Independence Plaza. In fact, Independence Plaza is a complex of no less than twenty four (24) buildings. It is an abuse of words to call this a building, let alone singular and without a capital “B”. The lease is flatly and factually objectively wrong in this assertion. 6. Third, this definition of the “building” in which the premises are located is contradicted by paragraph 48 (a) (4) of the lease, that defines the Building (capital “B” in the lease) as being the building (singular and no capital “B”) in which the space is located. Paragraph 48(a)(4) of the lease (Exhibit B to the moving papers) does not refer to Independence Plaza, nor to calculating real estate tax escalations based on twenty four (24) buildings but rather only the actual building in which the space is located. As a reminder, there is no reference in the lease to real estate tax escalations being calculated based on a tax block and lot. 884.2480 7. Fourth, the City records attached by the Defendants to their cross-motion prove only one thing, that the premises are at best located in a single building known as and located at 366 Greenwich Street. If anything, this adds to the Plaintiffs’ contentions of failure to properly calculate the real estate tax escalations. Although there is a blatant contradiction here again between the Department of Buildings record (Defendants’ Exhibit D) showing 10 buildings on this lot (but 12 buildings on Defendants’ Exhibit C), and the HPD records (Plaintiffs’ Exhibit D, showing 24 buildings on this lot. 8. Fifth, Defendants conveniently avoid addressing the request as to how the real estate tax escalations are actually calculated. The Defendants actually appear to admit that these tax escalations are indeed calculated based on the tax for all twenty four (24) buildings. Defendants appear to claim that this is normal. 9. However, not only this is not how lease paragraph 48(a)(4) reads, but in addition, no business man, in his right mind, would have accepted to pay tax escalations for 24 buildings. This actually would support the contention of unconscionability, mistake, detrimental reliance (estoppels), unjust enrichment, breach of contract and / or fraud made in the summons and complaint. The Plaintiff in his verified affirmation and verified complaint has clearly stated that this was not the understanding of the parties. 10. In a recent decision on point, Grand Deli LLC v. Seward Park Housing Inc. index number 602960/2006, Judge Judith Gische, JSC ruled on June 6, 2007, under very similar facts, that the Plaintiff had actually a right to challenge how the real estate tax escalations were collected and to challenge the language in the lease (and 884.2480 supporting consolidation with the housing court case). For the Court’s convenience, a copy of this decision is annexed hereto as Exhibit A. 11. Clearly, there is no documentary evidence supporting dismissal. To the contrary, the documents are at best contradictory within the lease and when compared to the deed and City records, as to the definition of the Building. Plaintiffs’ whole contention rests on an abusive misinterpretation of two words at the beginning of the lease, that make no sense factually, and are contradicted by other provisions in the lease, the deed and City records. 12. This action is not primed for dismissal at this juncture. Much discovery needs to be completed, before any other conclusions can be reached. 13. In the alternative, Plaintiffs’ cross-motion should be considered as an admission that the real estate tax escalation should have been calculated based on the tax increase for 366 Greenwich Street, and not based on the tax increase for 24 buildings (Defendants’ Exhibit A and D). 14. It is clear from the above, that the Defendants do not meet their burden on a motion to dismiss pursuant to CPLR 3211. As a reminder, on a motion to dismiss, the facts alleged by the Plaintiffs, are accepted as true and afforded the benefit of every possible favorable inference. EBC I, Inv. V. Goldman Sachs & Co., 5 NY3d 11, 19 [2005]; Sokoloff v. Harriman Estates Development Corp., 96 NY2d 409, 414 [2001]; PT Bank Central Asia v. ABN Amro Bank NV, 301 AD2d 373, 375-6 [1st Dept. 2003] unless clearly contradicted by evidence submitted by the moving parties in connection with the motion (Zanett Lombardier Ltd. v. Maslow, 29 AD3d 495 [1st Dept. 2006]. 884.2480 15. Instead, Defendants attempt to gain dismissal by alleging that the Plaintiffs have not proved all their causes of action in the complaint. The burden is actually on the Defendants’ to disprove all the claims in order to get dismissal. By failing to do so and relying on contradictory documents, Defendants have failed to meet their burden to have the action dismissed. 16. As for the Plaintiffs’ motion, consolidation, the Defendants have not shown some prejudice to a “substantial right” that will result from consolidation (Maigur v. Saratogian, 47 AD2d 982 [3rd Dept. 1975]). Plaintiffs’ motion should therefore be granted. 17. Finally, Defendants seek payment of rent and additional rent in consideration of a preliminary injunction as well as posting of a bond. First, the Plaintiffs have never objected to payment of rent. Defendants are holding many rent checks that have not been deposited. Second, Plaintiffs cannot be ordered to pay additional rent in consideration of the preliminary injunction, since the real estate tax escalation makes up most of the additional rent, and is at the heart of this litigation. Third, the posting of a $1million bond is unconnected to reality. As long as Defendants keep getting their rent, there is no basis for seeking a bond in consideration of a preliminary injunction. Plaintiff will agree to pay all outstanding rent and pay on- going rent, in consideration of the injunction sought herein. WHEREFORE, itis respectfully requested that the Court deny the Defendants’ cross- motion and grant the Plaintiff’s 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 ½ 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 884.2480 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY -------------------------------------------------------------------x TRIBECA DELICATESSEN, INC. d/b/a TRIBECA DELI and SERGIO URENA, Plaintiffs, Index No. 160991/2014 - against - IP MORTGAGE BORROWER, LLC and WB/STELLAR IP OWNER, LLC Defendants. -------------------------------------------------------------------x AFFIRMATION IN OPPOSITION AND IN FURTHER SUPPORT WITH EXHIBITS Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, uponinformation and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous. Dated: November __, 2014 ____________________ Nathaniel Muller LAW OFFICES OF NATHANIEL MULLER, P.C. attorneys for Plaintiff Tribeca Deli 1270 Broadway, Suite 806 New York, NY 10001 (646) 256-6003 884.2480