Preview
INDEX NO. 650493/2014
(FILED: NEW YORK COUNTY CLERK 0271372014)
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/13/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Se ae ee eee x Date Filed:
THE INFIRMARY LLC, Index No.:
Plaintiff, SUMMONS
-against-
Plaintiff designates New York County as
DOVOM LLC, the place for trial.
Defendant. The basis of venue is the location of the
subject property.
See eee tr eee were eeee ee weeeeenewewteceneraseccans X,
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a
copy of your answer, or, if the complaint is not served with this summons, to serve a notice of
appearance on the Plaintiffs attorneys within twenty (20) days after the service of this summons,
exclusive of the day of service (or within thirty (30) days after the service is complete if this summons
is not personally delivered to you within the State of New York); and in case of your failure to appear
and answer, judgment will be taken against you by default for the relief demanded in the complaint.
Dated: New York, New York
February 13, 2014
NEWMAN FERRARA LLP
ee for Plaintiff
By
Jarred I. Kassenoff, Esq.
1250 Broadway, 27" Floor
Defendant: New York, New York 10001
(212) 619-5400
TO Dovom LLC
3 West 57" Street, 7" Floor
New York, New York 10019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK.
Se ae ee be en SRR CO RONDE Seemann A)
THE INFIRMARY LLC, Index No.:
Plaintiff,
VERIFIED COMPLAINT
-against-
DOVOM LLC,
Defendant.
Seer eee eceee, - x
Plaintiff, THE INFIRMARY LLC, by its attorneys, NEWMAN FERRARA LLP, as and for
its complaint against defendant DOVOM LLC, respectfully alleges as follows:
THE PARTIES
1 Plaintiff The Infirmary LLC (“Plaintiff”) is a domestic limited liability company
operating and created pursuant to the laws of the State of New York.
2; Upon information and belief, defendant Dovom LLC (“Defendant”) is a domestic
limited liability company with an office located at 3 West 57" Street, 7° Floor, New York, New
York 10019 and is the owner of the building known as and located at 1720 Second Avenue, New
York, New York 10129 (the “Building”).
ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
3 By a written lease agreement by and between Plaintiff and Defendant, dated April 17,
2013 (the “Lease”), Plaintiff entered into possession of the ground floor and a portion of the
basement space located at 1720 Second Avenue, New York, New York 10128 (the “Subject
Premises”) for a term of 10 years in order to operate a bar and restaurant. A copy of the Lease is
annexed as Exhibit A.
4. In accordance with the Lease, Plaintiff operates an upscale Cajun & Creole
lounge/restaurant under the trade name “Infirmary NYC.”
A. Soundproofing and Build-out of the Subject Premise:
5 When Plaintiff took possession of the Subject Premises, they were in a deteriorated
state and required a significant investment to make them suitable to accomodate a restaurant/lounge.
The walls, ceilings and floors were run down and there was mold present.
6. Accordingly, Plaintiff expended approximately $510,000.00 on renovating and
converting the Premises into a space suitable to accomodate an upscale restaurant/lounge by, among
other things, gutting the entire Subject Premises, replacing the floors and ceilings and treating the
Subject Premises for mold.
7
In addition to the above-described renovations, and in order to ensure that Plaintiff's
operation of its lounge/restaurant did not interfere with the quality of life of the Building’s
occupants, Plaintiff installed “AcoustiBlok” soundproofing on the ceiling of the Subject Premises.
8 This “AcoustiBlok” type of soundproofing is generally considered the best
soundproofing material available and is typically used in professional music studios.
9 Notably, this soundproofing was installed at Plaintiff's own initiative and without any
obligation under Lease or law.
B. Use of the Premises
10. As an accompaniment to its upscale restaurant/lounge operation, Plaintiff plays low-
level ambient music via an Apple iPod connected to wireless Sonos speakers (the “Sound System”)
which is played at a level so as to not impede conversation among the patron diners.
11. The Sound System does not utilize any subwoofers and is not designed to (and is
incapable of) providing the sound levels traditionally utilized by discotheques, clubs and restaurants
that provide live music.
12. In fact, at no time does Plaintiff's restaurant/lounge provide live music and/or musical
performances of any kind.
C. Tenant Concerns
13. Plaintiff opened the restaurant/lounge to the public in December 2013.
14. Shortly thereafter, Plaintiff was contacted by two tenants of the Building who raised
concerns about the sounds emanating from the Subject Premises.
15. In response to those concerns, Dean O’Neill, Principal of Plaintiff, engaged in
discussions with the tenants and arranged to gain access to their apartments for the purposes of sound
testing with the aid of a decibel meter.
16. Testing revealed that, at the highest volume the restaurant/lounge utilizes, the music
was either inaudible or barely audible in the apartments and, in no case, louder than the ambient
noise generated by street traffic.'
Ti. Notwithstanding the foregoing, and despite the fact that Plaintiff had no obligation to
do so under Lease or law, Plaintiff took additional steps to address the tenants’ concerns.
18. Specifically, Plaintiff sealed window gaps and air conditioning unit openings in the
tenants’ apartments, and installed additional “AcoustiBlok” soundproofing material behind the
individual speakers in the Subject Premises.
9: The tenants reported that the noise (both from street traffic and the Subject Premises)
decreased significantly as a result of Plaintiff's measures.
20. Plaintiff then contacted the remaining tenants of the Building to determine if they had
' Indeed, testing revealed that the sound generated from the Subject Premises was 5 decibels below the ambient
noise.
any concerns.
21. The tenants advised Plaintiff that they did not hear the music or noise in their
apartments.
22. Plaintiff has not received any further complaints from tenants of the Building.
D. Compliance with Municipal Code
28, Additionally, on January 13, 2014, the Subject Premises were tested for sound levels
by an inspector from the New York City Department of Environmental Protection and the inspector
confirmed that the sound levels were well within the legal limits.
24. On that same day, the New York City Police Department also conducted sound testing
of the Subject Premises and confirmed that the noise levels were well within legal limits.
25. Nonetheless, in order to further ensure that there are no further issues regarding noise
emanating from the Subject Premises, Plaintiff intends to also soundproof the speakers in the Subject
Premises by adding shock absorbers around the speakers.
E. The Purported Notic:
26. Despite the fact that Plaintiff is well within the limits set by law, and despite the fact
that Plaintiff has apprised Defendant of all of the efforts it has taken to minimize noise leakage into
the other apartments in the Building — efforts that go far above and beyond any obligations set forth
by Lease or law — Defendant nonetheless served Plaintiff with a purported notice to cure, dated
January 27, 2014 (the “Purported Notice”). A copy of the Purported Notice is annexed as Exhibit B.
27. The Purported Notice was received by Plaintiff on or about February 3, 2014.
28. The Purported Notice alleges, inter alia, that Plaintiff is “creating a great deal of
noise, which disturbs other persons in the [B]uilding.” See Exhibit B at 1.
29. The Purported Notice also alleges that Defendant requested that Plaintiff “remedy the
situation” but that Plaintiff has failed to do so. Id.
30. The Purported Notice further states that if Plaintiff fails to cure these alleged
violations, the Lease would be terminated on February 18, 2014.
SL. Notably, the Purported Notice does not cite a single provision of the Lease, nor a
single law, regulation or code that Plaintiff has violated.
AS AND FOR A FIRST CAUSE OF ACTION
32: Plaintiff respectfully repeats and realleges each and every allegation contained in
paragraphs 1 through and including 31 above, with the same force and effect as if fully set forth
herein,
33. As stated above, Plaintiffhas invested significant resources in renovating the Subject
Premises and taking all other steps required to open and maintain a restaurant/lounge in New York
City.
34. Because Defendant is threatening to terminate Plaintiffs valuable commercial interest
in the Premises, Plaintiff will be irreparably harmed absent an injunction.
35. Plaintiff has no adequate remedy at law.
36. By reason of the foregoing, Plaintiff is entitled to judgment:
(a) staying and tolling the running of the cure period of
Purported Notice, which is currently set to expire on February
18, 2014 and threatens termination of Plaintiff's valuable
commercial leasehold interest in the Subject Premises;
(b) enjoining Defendant, its affiliates, agents, attorneys,
employees, and anyone acting on its behalf or under its
control from taking further steps to terminate or purport to
terminate Plaintiff s tenancy, commence a holdover summary
proceeding, or otherwise regain possession of the Subject
Premises based on the defaults alleged in the Purported
Notice; and
(©) enjoining Defendant, its agents, attorneys, employees, and
anyone action on its behalf or under its control from taking
any steps to regain or wrongfully interfere with Plaintiffs
possession of the Subject Premises.
(d) granting Plaintiff such other and further relief as to this Court
seems just, proper and equitable under the circumstances.
AS AND FOR A SECOND CAUSE OF ACTION
Bye Plaintiff respectfully repeats and realleges each and every allegation contained in
paragraphs 1 through and including 36 above, with the same force and effect as if fully set forth
herein.
38. An actual case and controversy exists in that Plaintiff alleges that it is not in default of
the Lease, as alleged in the Purported Notice.
39. Upon information and belief, Defendant claims, by the Purported Notice, that Plaintiff
is in default of the Lease.
40. As stated above, Defendant does not cite a single provision of the Lease which
Plaintiff alleged to violate and Plaintiff is in compliance with all New York City Codes regarding
noise levels.
41. Plaintiff is thus not in violation of any provision of the Lease.
42. By reason of the foregoing, Plaintiff is entitled to an order and judgment declaring
that Plaintiffis not in default of the Lease, as alleged in the Purported Notice
AS AND FOR A THIRD CAUSE OF ACTION
43. Plaintiff respectfully repeats and realleges each and every allegation set forth in
paragraphs 1 through and including 42 above, with the same force and effect as if fully set forth
herein at length.
44. The Purported Notice is vague, conclusory and ambiguous, and does not satisfy the
requirements of the Lease and/or applicable law.
45. The Purported Notice is ambiguous and vague as to, inter alia, the alleged provisions
of the Lease and/or law that is allegedly being violated by Plaintiff. Indeed, the Purported Notice
lists no provision of the Lease or the law that has been or is being violated by Plaintiff.
46. Additionally, under Article 55 of the Lease, additional notice was to be served on
Plaintiffs counsel, Peter Shukat. Upon information and belief, Mr. Shukat was never served with the
Purported Notice.
47. Upon information and belief, Defendants dispute that the Purported Notice is vague,
conclusory and ambiguous, and does not satisfy the requirements of the Lease and/or applicable law.
48. Plaintiff lacks an adequate remedy at law.
49. By reason of the foregoing, Plaintiff is entitled to an order and judgment declaring
that the Purported Notice is null and void and of no force and effect.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully demands entry of judgment, as against Defendant, as
follows:
1 On the First Cause of action:
(a) staying and tolling the running of the cure period of
Purported Notice, which is currently set to expire on February
18, 2014 and threatens termination of Plaintiff's valuable
commercial leasehold interest in the Subject Premises;
(b) enjoining Defendant, its affiliates, attomeys,
agents,
employees, and anyone acting on its behalf or under its
control from taking further steps to terminate or purport to
terminate Plaintiff's tenancy, commence a holdover summary
proceeding, or otherwise regain possession of the Subject
Premises based on the defaults alleged in the Purported
Notice; and
(©) enjoining Defendant, its agents, attorneys, employees, and
anyone action on its behalf or under its control from taking
any steps to regain or wrongfully interfere with Plaintiff's
possession of the Subject Premises.
(@d) granting Plaintiff such other and further relief as to this Court
seems just, proper and equitable under the circumstances.
IL On the Second Cause of Action, declaring that Plaintiff is not in
default of the Lease as alleged in the Purported Notice;
ll. On the Third Cause of Action, declaring that the Purported Notice is a
nullity and of no force and effect; and
awarding such other and further relief as the Court deems just and
proper, including, without limitation, Plaintiff s reasonable attorneys”
fees, costs and/or disbursements.
Dated: New York, New York
February 13, 2014
NEWMAN FERRARA LLP
Attorneys for Plaintiff
1250 Broadway, 27th Floor
New York, New York 10001
(212) 6195400
By:
Jarred I. Kassenoff
VERIFICATION
STATE OF NEW YORK )
)ss.t
COUNTY OF NEW YORK )
DEAN O'NEILL, being duly sworn, deposes and says:
Tam Principal of The Infirmary LLC, the plaintiff in this action. I have
read the foregoing
Complaint in this action, and I know the contents thereof to be true based upon
my own knowledge,
except as to the matters therein stated to be alleged upon information and
belief, and as to those
matters I believe it to be true. The grounds of my belief as to all matters not
stated upon my personal
knowledge are the documents and records maintained in the plaintiff's
files, and my personal
involvement in the dispute giving rise to this action. This verification is made by me because
plaintiff is a limited liability company and I am a member thereof,
ee o l l )
N O’NEILL
Sworn to before me this
| 2° "day of February, 2014
ZO
Notary Public
NOE SOLORZANO
Notary Public, State of New York
lo. 02896222417
Qualified in Nassau Count
My Commission Expires May 24, 2014
Preview
INDEX NO. 650493/2014 (FILED: NEW YORK COUNTY CLERK 0271372014) NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/13/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Se ae ee eee x Date Filed: THE INFIRMARY LLC, Index No.: Plaintiff, SUMMONS -against- Plaintiff designates New York County as DOVOM LLC, the place for trial. Defendant. The basis of venue is the location of the subject property. See eee tr eee were eeee ee weeeeenewewteceneraseccans X, TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance on the Plaintiffs attorneys within twenty (20) days after the service of this summons, exclusive of the day of service (or within thirty (30) days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear and answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: New York, New York February 13, 2014 NEWMAN FERRARA LLP ee for Plaintiff By Jarred I. Kassenoff, Esq. 1250 Broadway, 27" Floor Defendant: New York, New York 10001 (212) 619-5400 TO Dovom LLC 3 West 57" Street, 7" Floor New York, New York 10019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK. Se ae ee be en SRR CO RONDE Seemann A) THE INFIRMARY LLC, Index No.: Plaintiff, VERIFIED COMPLAINT -against- DOVOM LLC, Defendant. Seer eee eceee, - x Plaintiff, THE INFIRMARY LLC, by its attorneys, NEWMAN FERRARA LLP, as and for its complaint against defendant DOVOM LLC, respectfully alleges as follows: THE PARTIES 1 Plaintiff The Infirmary LLC (“Plaintiff”) is a domestic limited liability company operating and created pursuant to the laws of the State of New York. 2; Upon information and belief, defendant Dovom LLC (“Defendant”) is a domestic limited liability company with an office located at 3 West 57" Street, 7° Floor, New York, New York 10019 and is the owner of the building known as and located at 1720 Second Avenue, New York, New York 10129 (the “Building”). ALLEGATIONS COMMON TO ALL CAUSES OF ACTION 3 By a written lease agreement by and between Plaintiff and Defendant, dated April 17, 2013 (the “Lease”), Plaintiff entered into possession of the ground floor and a portion of the basement space located at 1720 Second Avenue, New York, New York 10128 (the “Subject Premises”) for a term of 10 years in order to operate a bar and restaurant. A copy of the Lease is annexed as Exhibit A. 4. In accordance with the Lease, Plaintiff operates an upscale Cajun & Creole lounge/restaurant under the trade name “Infirmary NYC.” A. Soundproofing and Build-out of the Subject Premise: 5 When Plaintiff took possession of the Subject Premises, they were in a deteriorated state and required a significant investment to make them suitable to accomodate a restaurant/lounge. The walls, ceilings and floors were run down and there was mold present. 6. Accordingly, Plaintiff expended approximately $510,000.00 on renovating and converting the Premises into a space suitable to accomodate an upscale restaurant/lounge by, among other things, gutting the entire Subject Premises, replacing the floors and ceilings and treating the Subject Premises for mold. 7 In addition to the above-described renovations, and in order to ensure that Plaintiff's operation of its lounge/restaurant did not interfere with the quality of life of the Building’s occupants, Plaintiff installed “AcoustiBlok” soundproofing on the ceiling of the Subject Premises. 8 This “AcoustiBlok” type of soundproofing is generally considered the best soundproofing material available and is typically used in professional music studios. 9 Notably, this soundproofing was installed at Plaintiff's own initiative and without any obligation under Lease or law. B. Use of the Premises 10. As an accompaniment to its upscale restaurant/lounge operation, Plaintiff plays low- level ambient music via an Apple iPod connected to wireless Sonos speakers (the “Sound System”) which is played at a level so as to not impede conversation among the patron diners. 11. The Sound System does not utilize any subwoofers and is not designed to (and is incapable of) providing the sound levels traditionally utilized by discotheques, clubs and restaurants that provide live music. 12. In fact, at no time does Plaintiff's restaurant/lounge provide live music and/or musical performances of any kind. C. Tenant Concerns 13. Plaintiff opened the restaurant/lounge to the public in December 2013. 14. Shortly thereafter, Plaintiff was contacted by two tenants of the Building who raised concerns about the sounds emanating from the Subject Premises. 15. In response to those concerns, Dean O’Neill, Principal of Plaintiff, engaged in discussions with the tenants and arranged to gain access to their apartments for the purposes of sound testing with the aid of a decibel meter. 16. Testing revealed that, at the highest volume the restaurant/lounge utilizes, the music was either inaudible or barely audible in the apartments and, in no case, louder than the ambient noise generated by street traffic.' Ti. Notwithstanding the foregoing, and despite the fact that Plaintiff had no obligation to do so under Lease or law, Plaintiff took additional steps to address the tenants’ concerns. 18. Specifically, Plaintiff sealed window gaps and air conditioning unit openings in the tenants’ apartments, and installed additional “AcoustiBlok” soundproofing material behind the individual speakers in the Subject Premises. 9: The tenants reported that the noise (both from street traffic and the Subject Premises) decreased significantly as a result of Plaintiff's measures. 20. Plaintiff then contacted the remaining tenants of the Building to determine if they had ' Indeed, testing revealed that the sound generated from the Subject Premises was 5 decibels below the ambient noise. any concerns. 21. The tenants advised Plaintiff that they did not hear the music or noise in their apartments. 22. Plaintiff has not received any further complaints from tenants of the Building. D. Compliance with Municipal Code 28, Additionally, on January 13, 2014, the Subject Premises were tested for sound levels by an inspector from the New York City Department of Environmental Protection and the inspector confirmed that the sound levels were well within the legal limits. 24. On that same day, the New York City Police Department also conducted sound testing of the Subject Premises and confirmed that the noise levels were well within legal limits. 25. Nonetheless, in order to further ensure that there are no further issues regarding noise emanating from the Subject Premises, Plaintiff intends to also soundproof the speakers in the Subject Premises by adding shock absorbers around the speakers. E. The Purported Notic: 26. Despite the fact that Plaintiff is well within the limits set by law, and despite the fact that Plaintiff has apprised Defendant of all of the efforts it has taken to minimize noise leakage into the other apartments in the Building — efforts that go far above and beyond any obligations set forth by Lease or law — Defendant nonetheless served Plaintiff with a purported notice to cure, dated January 27, 2014 (the “Purported Notice”). A copy of the Purported Notice is annexed as Exhibit B. 27. The Purported Notice was received by Plaintiff on or about February 3, 2014. 28. The Purported Notice alleges, inter alia, that Plaintiff is “creating a great deal of noise, which disturbs other persons in the [B]uilding.” See Exhibit B at 1. 29. The Purported Notice also alleges that Defendant requested that Plaintiff “remedy the situation” but that Plaintiff has failed to do so. Id. 30. The Purported Notice further states that if Plaintiff fails to cure these alleged violations, the Lease would be terminated on February 18, 2014. SL. Notably, the Purported Notice does not cite a single provision of the Lease, nor a single law, regulation or code that Plaintiff has violated. AS AND FOR A FIRST CAUSE OF ACTION 32: Plaintiff respectfully repeats and realleges each and every allegation contained in paragraphs 1 through and including 31 above, with the same force and effect as if fully set forth herein, 33. As stated above, Plaintiffhas invested significant resources in renovating the Subject Premises and taking all other steps required to open and maintain a restaurant/lounge in New York City. 34. Because Defendant is threatening to terminate Plaintiffs valuable commercial interest in the Premises, Plaintiff will be irreparably harmed absent an injunction. 35. Plaintiff has no adequate remedy at law. 36. By reason of the foregoing, Plaintiff is entitled to judgment: (a) staying and tolling the running of the cure period of Purported Notice, which is currently set to expire on February 18, 2014 and threatens termination of Plaintiff's valuable commercial leasehold interest in the Subject Premises; (b) enjoining Defendant, its affiliates, agents, attorneys, employees, and anyone acting on its behalf or under its control from taking further steps to terminate or purport to terminate Plaintiff s tenancy, commence a holdover summary proceeding, or otherwise regain possession of the Subject Premises based on the defaults alleged in the Purported Notice; and (©) enjoining Defendant, its agents, attorneys, employees, and anyone action on its behalf or under its control from taking any steps to regain or wrongfully interfere with Plaintiffs possession of the Subject Premises. (d) granting Plaintiff such other and further relief as to this Court seems just, proper and equitable under the circumstances. AS AND FOR A SECOND CAUSE OF ACTION Bye Plaintiff respectfully repeats and realleges each and every allegation contained in paragraphs 1 through and including 36 above, with the same force and effect as if fully set forth herein. 38. An actual case and controversy exists in that Plaintiff alleges that it is not in default of the Lease, as alleged in the Purported Notice. 39. Upon information and belief, Defendant claims, by the Purported Notice, that Plaintiff is in default of the Lease. 40. As stated above, Defendant does not cite a single provision of the Lease which Plaintiff alleged to violate and Plaintiff is in compliance with all New York City Codes regarding noise levels. 41. Plaintiff is thus not in violation of any provision of the Lease. 42. By reason of the foregoing, Plaintiff is entitled to an order and judgment declaring that Plaintiffis not in default of the Lease, as alleged in the Purported Notice AS AND FOR A THIRD CAUSE OF ACTION 43. Plaintiff respectfully repeats and realleges each and every allegation set forth in paragraphs 1 through and including 42 above, with the same force and effect as if fully set forth herein at length. 44. The Purported Notice is vague, conclusory and ambiguous, and does not satisfy the requirements of the Lease and/or applicable law. 45. The Purported Notice is ambiguous and vague as to, inter alia, the alleged provisions of the Lease and/or law that is allegedly being violated by Plaintiff. Indeed, the Purported Notice lists no provision of the Lease or the law that has been or is being violated by Plaintiff. 46. Additionally, under Article 55 of the Lease, additional notice was to be served on Plaintiffs counsel, Peter Shukat. Upon information and belief, Mr. Shukat was never served with the Purported Notice. 47. Upon information and belief, Defendants dispute that the Purported Notice is vague, conclusory and ambiguous, and does not satisfy the requirements of the Lease and/or applicable law. 48. Plaintiff lacks an adequate remedy at law. 49. By reason of the foregoing, Plaintiff is entitled to an order and judgment declaring that the Purported Notice is null and void and of no force and effect. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully demands entry of judgment, as against Defendant, as follows: 1 On the First Cause of action: (a) staying and tolling the running of the cure period of Purported Notice, which is currently set to expire on February 18, 2014 and threatens termination of Plaintiff's valuable commercial leasehold interest in the Subject Premises; (b) enjoining Defendant, its affiliates, attomeys, agents, employees, and anyone acting on its behalf or under its control from taking further steps to terminate or purport to terminate Plaintiff's tenancy, commence a holdover summary proceeding, or otherwise regain possession of the Subject Premises based on the defaults alleged in the Purported Notice; and (©) enjoining Defendant, its agents, attorneys, employees, and anyone action on its behalf or under its control from taking any steps to regain or wrongfully interfere with Plaintiff's possession of the Subject Premises. (@d) granting Plaintiff such other and further relief as to this Court seems just, proper and equitable under the circumstances. IL On the Second Cause of Action, declaring that Plaintiff is not in default of the Lease as alleged in the Purported Notice; ll. On the Third Cause of Action, declaring that the Purported Notice is a nullity and of no force and effect; and awarding such other and further relief as the Court deems just and proper, including, without limitation, Plaintiff s reasonable attorneys” fees, costs and/or disbursements. Dated: New York, New York February 13, 2014 NEWMAN FERRARA LLP Attorneys for Plaintiff 1250 Broadway, 27th Floor New York, New York 10001 (212) 6195400 By: Jarred I. Kassenoff VERIFICATION STATE OF NEW YORK ) )ss.t COUNTY OF NEW YORK ) DEAN O'NEILL, being duly sworn, deposes and says: Tam Principal of The Infirmary LLC, the plaintiff in this action. I have read the foregoing Complaint in this action, and I know the contents thereof to be true based upon my own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters I believe it to be true. The grounds of my belief as to all matters not stated upon my personal knowledge are the documents and records maintained in the plaintiff's files, and my personal involvement in the dispute giving rise to this action. This verification is made by me because plaintiff is a limited liability company and I am a member thereof, ee o l l ) N O’NEILL Sworn to before me this | 2° "day of February, 2014 ZO Notary Public NOE SOLORZANO Notary Public, State of New York lo. 02896222417 Qualified in Nassau Count My Commission Expires May 24, 2014