Preview
FILED: SUFFOLK COUNTY CLERK 09/12/2023 02:39 PM INDEX NO. 620210/2023
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/12/2023
Exhibit B
FILED: SUFFOLK COUNTY CLERK 09/12/2023 02:39 PM INDEX NO. 620210/2023
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/12/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
IN THE MATTER OF
AFFIRMATION IN SUPPORT OF
MDQ ACADEMY ORDER TO SHOW CAUSE
Petitioner, Index No.: 620210/2023
-against-
SISTERS OF ST JOSEPH, BRENTWOOD,
Respondent.
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I, Pavlos Pavlatos, Esq., swear under penalty of perjury as follows:
1. I am an attorney, duly admitted to practice in the Courts of the State of New York
and I am an attorney of Wingate, Kearney & Cullen LLP, attorneys for Sisters of Saint Joseph
s/h/a Sisters of St. Joseph, Brentwood (hereinafter "Sisters"). As such, I am familiar with the
proceedings and facts herein.
NATURE OF THE CASE
2. I write this affirmation in support of the Sisters Order to Show Cause.
3. In order to avoid future unnecessary harm, the Sisters seek an Order: (i) enjoining
("Petitioner"
and restraining MDQ Academy or "MDQ") from interfering with and/or obstructing the
common areas, hallways, ingress and egress of the premises located at 1725 Brentwood Road, Brentwood,
New York I1717; (ii) enjoining and restraining Petitioner from using the second floor classrooms of the
premises located at 1725 Brentwood Road, Brentwood, New York 1 1717 after August 31, 2023 and not
interfere with the use of same by Shepherd's Gate Academy; (iii) modifying Hon J. Paul J. Baisley, Jr.'s
as follows: (a) to permit the Sisters to file a counter-claim for a permanent injunction
temporary restraining
as to the use of the second floor of the premises; (b) to permit the Sisters to initiate eviction/ejectment
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FILED: SUFFOLK COUNTY CLERK 09/12/2023 02:39 PM INDEX NO. 620210/2023
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/12/2023
proceedings against Petitioner; and (c) permit the Sisters access to the second floor of the premises for the
purpose of providing classrooms to the students of Shepherd's Gate Petitioner's
Academy; (iv) dismissing
Petition pursuant to CPLR §§ 3211(a)(1), 321l(a)(7), and and the Sisters such
321l(a)(10); (v) granting
other and further relief as the Court deems just and proper.
4. If MDQ is allowed to continue it's conduct of with the common areas of the
interfering
premises, and continue its leasehold uninterrupted after the expiration of its lease, the Sisters will face
irreparable harm.
PARTIES
5. The Sisters are a religious organization under the Not-For-Profit Corporation Law
of the State of New York.
6. Upon information and belief, MDQ is registered with the New York State Board of
Education and operates a school providing education for students from kindergarten through grade
12.
FACTS OF THE CASE
7. By way of background, the Sisters entered into a lease agreement with MDQ to in
"A"
2011 and expires on June 20,2013. Attached hereteo as Exhibit is a copy of the 2011 lease.
8. Thereafter, the Sisted and MDQ entered into a lease agreement commencing on
July 1, 2013 and its termination date (after extension by option) being August 31, 2023. Attached
"B"
hereto as Exhibit is a copy of the lease agreement between the 2013 lease between the Sisters
and MDQ.
9. In January of 2022, the sisters advised MDQ of their intent not to renew the lease
with MDQ upon its expiration on August 31, 2023. See ¶ 14 of the Affidavit of Sister Tesa
"G"
Fitzgerald, attached hereto as Exhibit is a copy of the Affidavit of Sister Tesa Fitzgerald.
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FILED: SUFFOLK COUNTY CLERK 09/12/2023 02:39 PM INDEX NO. 620210/2023
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/12/2023
10. On or about May 17, 2023, the Sisters received a letter from MDQ's counsel
"C"
requesting an extension of the lease past August 31, 2023. Attached hereto as Exhibit is a copy
of the letter dated May 17, 2023 from MDQ's counsel to the Sisters. The Sisters through their
counsel (Wingate, Kearney & Cullen, LLP) sent a reply denying the extension request, and is
attached hereto as Exhibit "D".
11. On or about June 22, 2023, the Sisters received another letter from MDQ's new
counsel alleging that the Sisters had ulterior motives to not granting an extension in the lease term.
"E"
Attached hereto as Exhibit is a copy of the letter dated June 22, 2023 from MDQ's counsel to
the Sisters. The Sisters through their counsel sent a response to the June 22, 2023 letter wherein
they refute the allegations made and remind MDQ of its obligation to vacate the premises by
"F"
August 31, 2023. Attached hereto as Exhibit is a copy of the letter dated July 11,2023 from
the Sisters to MDQ.
12. MDQ eventually sought judicial intervention in the Supreme Court, Suffolk
County, for a temporary restraining order enjoining the Sisters from commencing any hold over,
eviction, or related proceedings against MDQ or engaging in any acts which would interfere with
- "H"
MDQ's operation of their K 12 school located at the premises. Attached hereto as Exhibit
is copy of MDQ's Verified Petition without exhibits.
13. On August 15, 2023 the Honorable Judge Paul J, Baisely, Jr. granted MDQ's
"I"
temporary restraining order. Attached hereto as Exhibit is a true and accurate copy of the Order
to Show Cause with Application for Temporary Restraining Order granted on August 15, 2023.
14. The Academic school year is set to begin in September 2023, and faculty of the
various organization that use the premises are anticipated to enter the premises on August 28, 2023.
"G"
S_e_eExhibit Affidavit of Sister Tesa Fitzgerald at 128.
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FILED: SUFFOLK COUNTY CLERK 09/12/2023 02:39 PM INDEX NO. 620210/2023
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/12/2023
15. The Sisters have coordinated with Shepherd's Gate Academy (Shepherd's Gate")
to utilize the premises referenced herein upon the expiration of MDQ's lease for the incoming
universal pre-kindergarten class of Shepherd's Gate. See Affidavit of Tesa Fitzgerald at 114.
16. As it presently stands, the Sisters cannot accommodate both the students of MDQ
and Shepherd's Gate once the academic school year starts and comply with the and comply with
the Court's order entered on August 15, 2023. See Affidavit of Tesa Fitzgerald at129.
17. This reason this matter is brought by Order to Show Cause is because the leasehold
of MDQ is set to expire on August 31, 2023 and the Sisters had allocated the premises to the
children of the Shepherd's Gate Academy.
18. On August 23, 2023, I gave notice to counsel for MDQ, by email message that
Sisters of Saint Joseph would move by Order to Show Cause in the Supreme Court of the State of New
York, County of Suffolk at the Special Term office, 1 Court Street, Riverhead, New York 11901 at 11:00
a.m. on Thursday, August 23, 2023 seeking an Order dismissing MDQ Academy's petition, requesting that
MDQ Academy not interfere with the common areas of the building, requesting that MDQ cease
interference with the second floor classrooms of the premises upon the expiration of the lease on August
31, 2023, and modifying the temporary restraining order granted on August 15, 2023 by Hon J. Paul J.
Baisley, Jr. See email correspondence attached hereto as Exhibit "J".
"K"
19. Additionally, attached as Exhibit is the proposed counter-claim for a permanent
injunction as to the use of the classrooms located on the second floor of the premises.
20. There has been no previous application for this relief.
WHEREFORE
21. Respondent prays for an Order: (i) enjoining and restraining Petitioner from interfering
with and/or the common areas, hallways, ingress and egress of the premises located at 1725
obstructing
Brentwood New York 11717; enjoining and restraining Petitioner from using the
Road, Brentwood, (ii)
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FILED: SUFFOLK COUNTY CLERK 09/12/2023 02:39 PM INDEX NO. 620210/2023
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/12/2023
second floor classrooms of the premises located at 1725 Brentwood Road, Brentwood, New York 11717
aner August 31, 2023 and not interfere with the use of same by Shepherd's Gate Academy; (iii) modifying
Hon J. Paul J. Baisley, Jr 's temporary restraining as follows: (a) to permit the Sisters to file a counter-claim
for a permanent injunction as to the use of the second floor of the premises; (b) to permit the Sisters to
initiate eviction/ejectment proceedings against Petitioner; and (c) permit the Sisters access to the second
floor of the premises for the purpose of providing classrooms to the students of Shepherd's Gate Academy;
(iv) dismissing Petitioner's Petition pursuant to CPLR §§ 3211(a)(1), 321 l(a)(7), and 321 l(a)(10); and (v)
granting the Sisters such other and further relief as the Court deems just and proper.
Dated: New York, New York
August 23, 2023
W E, KE Y CULLEN, LLP.
Pavlos Pavlatos, Esq.
Attorneys for Respondents
111 John Street, Ste 1040
New York, New York 10038
Tel: (718) 852-5900 Ext: 212
5
FILED: SUFFOLK COUNTY CLERK 09/12/2023 02:39 PM INDEX NO. 620210/2023
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/12/2023
SUPREME COURT OF THE STATE OF
NEW YORK COUNTY OF SUFFOLK
IN THE MATTER OF
MDQ ACADEMY
Petitioner,
-against-
SISTERS OF ST JOSEPH, BRENTWOOD,
Respondent.
AFFIRMATION IN SUPPORT OF ORDER TO SHOW
CAUSE
Index No.: 620210/2023
WINGATE, KEARNEY & CULLEN, LLP
111 John Street, Ste 1040
New York, New York 10038
Tel: (718) 852-5900
Preview
FILED: SUFFOLK COUNTY CLERK 09/12/2023 02:39 PM INDEX NO. 620210/2023 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/12/2023 Exhibit B FILED: SUFFOLK COUNTY CLERK 09/12/2023 02:39 PM INDEX NO. 620210/2023 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/12/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK IN THE MATTER OF AFFIRMATION IN SUPPORT OF MDQ ACADEMY ORDER TO SHOW CAUSE Petitioner, Index No.: 620210/2023 -against- SISTERS OF ST JOSEPH, BRENTWOOD, Respondent. STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) I, Pavlos Pavlatos, Esq., swear under penalty of perjury as follows: 1. I am an attorney, duly admitted to practice in the Courts of the State of New York and I am an attorney of Wingate, Kearney & Cullen LLP, attorneys for Sisters of Saint Joseph s/h/a Sisters of St. Joseph, Brentwood (hereinafter "Sisters"). As such, I am familiar with the proceedings and facts herein. NATURE OF THE CASE 2. I write this affirmation in support of the Sisters Order to Show Cause. 3. In order to avoid future unnecessary harm, the Sisters seek an Order: (i) enjoining ("Petitioner" and restraining MDQ Academy or "MDQ") from interfering with and/or obstructing the common areas, hallways, ingress and egress of the premises located at 1725 Brentwood Road, Brentwood, New York I1717; (ii) enjoining and restraining Petitioner from using the second floor classrooms of the premises located at 1725 Brentwood Road, Brentwood, New York 1 1717 after August 31, 2023 and not interfere with the use of same by Shepherd's Gate Academy; (iii) modifying Hon J. Paul J. Baisley, Jr.'s as follows: (a) to permit the Sisters to file a counter-claim for a permanent injunction temporary restraining as to the use of the second floor of the premises; (b) to permit the Sisters to initiate eviction/ejectment 1 FILED: SUFFOLK COUNTY CLERK 09/12/2023 02:39 PM INDEX NO. 620210/2023 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/12/2023 proceedings against Petitioner; and (c) permit the Sisters access to the second floor of the premises for the purpose of providing classrooms to the students of Shepherd's Gate Petitioner's Academy; (iv) dismissing Petition pursuant to CPLR §§ 3211(a)(1), 321l(a)(7), and and the Sisters such 321l(a)(10); (v) granting other and further relief as the Court deems just and proper. 4. If MDQ is allowed to continue it's conduct of with the common areas of the interfering premises, and continue its leasehold uninterrupted after the expiration of its lease, the Sisters will face irreparable harm. PARTIES 5. The Sisters are a religious organization under the Not-For-Profit Corporation Law of the State of New York. 6. Upon information and belief, MDQ is registered with the New York State Board of Education and operates a school providing education for students from kindergarten through grade 12. FACTS OF THE CASE 7. By way of background, the Sisters entered into a lease agreement with MDQ to in "A" 2011 and expires on June 20,2013. Attached hereteo as Exhibit is a copy of the 2011 lease. 8. Thereafter, the Sisted and MDQ entered into a lease agreement commencing on July 1, 2013 and its termination date (after extension by option) being August 31, 2023. Attached "B" hereto as Exhibit is a copy of the lease agreement between the 2013 lease between the Sisters and MDQ. 9. In January of 2022, the sisters advised MDQ of their intent not to renew the lease with MDQ upon its expiration on August 31, 2023. See ¶ 14 of the Affidavit of Sister Tesa "G" Fitzgerald, attached hereto as Exhibit is a copy of the Affidavit of Sister Tesa Fitzgerald. 2 FILED: SUFFOLK COUNTY CLERK 09/12/2023 02:39 PM INDEX NO. 620210/2023 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/12/2023 10. On or about May 17, 2023, the Sisters received a letter from MDQ's counsel "C" requesting an extension of the lease past August 31, 2023. Attached hereto as Exhibit is a copy of the letter dated May 17, 2023 from MDQ's counsel to the Sisters. The Sisters through their counsel (Wingate, Kearney & Cullen, LLP) sent a reply denying the extension request, and is attached hereto as Exhibit "D". 11. On or about June 22, 2023, the Sisters received another letter from MDQ's new counsel alleging that the Sisters had ulterior motives to not granting an extension in the lease term. "E" Attached hereto as Exhibit is a copy of the letter dated June 22, 2023 from MDQ's counsel to the Sisters. The Sisters through their counsel sent a response to the June 22, 2023 letter wherein they refute the allegations made and remind MDQ of its obligation to vacate the premises by "F" August 31, 2023. Attached hereto as Exhibit is a copy of the letter dated July 11,2023 from the Sisters to MDQ. 12. MDQ eventually sought judicial intervention in the Supreme Court, Suffolk County, for a temporary restraining order enjoining the Sisters from commencing any hold over, eviction, or related proceedings against MDQ or engaging in any acts which would interfere with - "H" MDQ's operation of their K 12 school located at the premises. Attached hereto as Exhibit is copy of MDQ's Verified Petition without exhibits. 13. On August 15, 2023 the Honorable Judge Paul J, Baisely, Jr. granted MDQ's "I" temporary restraining order. Attached hereto as Exhibit is a true and accurate copy of the Order to Show Cause with Application for Temporary Restraining Order granted on August 15, 2023. 14. The Academic school year is set to begin in September 2023, and faculty of the various organization that use the premises are anticipated to enter the premises on August 28, 2023. "G" S_e_eExhibit Affidavit of Sister Tesa Fitzgerald at 128. 3 FILED: SUFFOLK COUNTY CLERK 09/12/2023 02:39 PM INDEX NO. 620210/2023 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/12/2023 15. The Sisters have coordinated with Shepherd's Gate Academy (Shepherd's Gate") to utilize the premises referenced herein upon the expiration of MDQ's lease for the incoming universal pre-kindergarten class of Shepherd's Gate. See Affidavit of Tesa Fitzgerald at 114. 16. As it presently stands, the Sisters cannot accommodate both the students of MDQ and Shepherd's Gate once the academic school year starts and comply with the and comply with the Court's order entered on August 15, 2023. See Affidavit of Tesa Fitzgerald at129. 17. This reason this matter is brought by Order to Show Cause is because the leasehold of MDQ is set to expire on August 31, 2023 and the Sisters had allocated the premises to the children of the Shepherd's Gate Academy. 18. On August 23, 2023, I gave notice to counsel for MDQ, by email message that Sisters of Saint Joseph would move by Order to Show Cause in the Supreme Court of the State of New York, County of Suffolk at the Special Term office, 1 Court Street, Riverhead, New York 11901 at 11:00 a.m. on Thursday, August 23, 2023 seeking an Order dismissing MDQ Academy's petition, requesting that MDQ Academy not interfere with the common areas of the building, requesting that MDQ cease interference with the second floor classrooms of the premises upon the expiration of the lease on August 31, 2023, and modifying the temporary restraining order granted on August 15, 2023 by Hon J. Paul J. Baisley, Jr. See email correspondence attached hereto as Exhibit "J". "K" 19. Additionally, attached as Exhibit is the proposed counter-claim for a permanent injunction as to the use of the classrooms located on the second floor of the premises. 20. There has been no previous application for this relief. WHEREFORE 21. Respondent prays for an Order: (i) enjoining and restraining Petitioner from interfering with and/or the common areas, hallways, ingress and egress of the premises located at 1725 obstructing Brentwood New York 11717; enjoining and restraining Petitioner from using the Road, Brentwood, (ii) 4 FILED: SUFFOLK COUNTY CLERK 09/12/2023 02:39 PM INDEX NO. 620210/2023 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/12/2023 second floor classrooms of the premises located at 1725 Brentwood Road, Brentwood, New York 11717 aner August 31, 2023 and not interfere with the use of same by Shepherd's Gate Academy; (iii) modifying Hon J. Paul J. Baisley, Jr 's temporary restraining as follows: (a) to permit the Sisters to file a counter-claim for a permanent injunction as to the use of the second floor of the premises; (b) to permit the Sisters to initiate eviction/ejectment proceedings against Petitioner; and (c) permit the Sisters access to the second floor of the premises for the purpose of providing classrooms to the students of Shepherd's Gate Academy; (iv) dismissing Petitioner's Petition pursuant to CPLR §§ 3211(a)(1), 321 l(a)(7), and 321 l(a)(10); and (v) granting the Sisters such other and further relief as the Court deems just and proper. Dated: New York, New York August 23, 2023 W E, KE Y CULLEN, LLP. Pavlos Pavlatos, Esq. Attorneys for Respondents 111 John Street, Ste 1040 New York, New York 10038 Tel: (718) 852-5900 Ext: 212 5 FILED: SUFFOLK COUNTY CLERK 09/12/2023 02:39 PM INDEX NO. 620210/2023 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/12/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK IN THE MATTER OF MDQ ACADEMY Petitioner, -against- SISTERS OF ST JOSEPH, BRENTWOOD, Respondent. AFFIRMATION IN SUPPORT OF ORDER TO SHOW CAUSE Index No.: 620210/2023 WINGATE, KEARNEY & CULLEN, LLP 111 John Street, Ste 1040 New York, New York 10038 Tel: (718) 852-5900