Preview
FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------x
:
STAHL MIDTOWN PROPERTIES LLC, : Index No.
:
Plaintiff, :
: AFFIDAVIT OF
-against- : MATTHEW LOVALLO
:
49 BROADWAY LLC, :
:
Defendant, :
----------_____________----------------------------------------X
STATE OF NEW YORK )
ss
COUNTY OF NEW YORK )
MATTHEW LOVALLO, being duly sworn, deposes and says:
1. I am an authorized representative of plaintiff Stahl Midtown Properties LLC
("Plaintiff"
or "Stahl"), and in this position I am responsible for overseeing the operation of the
building located at 49 Broadway a/k/a 25 Trinity Place, New York, New York 10006
"Building," "Premises"
(hereinafter, the with the underlying land, the "Premises") for Stahl, which isthe
ground lessee of the Premises.
2. I respectfully submit this affidavit, based on my personal knowledge and/or my
review of Stahl's business records, in support of Stahl's application for a restraining order and a
Yellowstone injunction and/or preliminary injunction:
(a) staying and tolling the expiration of the cure period set forth in a
Cure"
purported "Thirty (30) Day Notice to dated February 6, 2018 (the "Notice to
Cure"
Cure"), but which was mailed by return receipt requested on February 14, 2018, from
("Defendant" "Landlord"
defendant 49 Broadway LLC or "Landlord") to Plaintiff in which
Defendant claims that Plaintiff has violated the commercial ground lease dated
00066993.
1 of 10
FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018
"Lease"
December 30, 1960 (the "Lease"), for the improved premises known as 49 Broadway
a/k/a 25 Trinity Place, New York, New York 10036 and threatens termination of the
Lease based upon such purported violations; and
(b) temporarily, preliminarily and/or permanently, enjoining and restraining
Defendant, itsagents, servants, representatives and allpersons and entities known and
unknown, acting on itsbehalf or in concert with it,in any manner or by any means,
from taking any action to terminate the Lease pursuant to the terms thereof, the Notice
to Cure or at law and/or to commence any action or summary proceedings to evict the
Plaintiff or to otherwise interfere with Plaintiff's possession of the Premises; and
(c) awarding Plaintiff such other and further relief as this Court may deem
just, proper and equitable under the circumstances, including but not limited to an
attorneys'
award of Plaintiff's fees, costs and disbursements.
3. This affidavit is based on my personal knowledge and my review of Stahl's books
and records.
The Parties
4. Plaintiff is a limited liability company duly organized under the laws of the State
of Delaware and authorized to do business in New York with an address of 277 Park Avenue,
New York, New York 10172.
5. Upon information and belief, Landlord is a limited liability company organized
10th
under the laws of the State of New York with an address of 1185 Sixth Avenue, floor,New
York, New York 10036.
00066993. 2
2 of 10
FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018
The Lease
6. Upon information and belief, Defendant is the fee owner of the Premises.
7. Plaintiff and Defendant are the successor parties to the Lease, which was
originally made by and between Gary Builders Inc., a predecessor-in-interest to Defendant, and
Exchange Nut Products, Inc., dated December 30, 1960. (A copy of the Lease is annexed hereto
as Exhibit A.)
8. The Lease was assigned by Assignment and Assumption of Ground Lease dated
O'
June 21, 2001 by Chock Full Nuts Corporation (successor-by-merger to Exchange Nut
Products, Inc.) to Plaintiff as tenant. Pursuant thereto, Plaintiff is the ground lessee of the
Premises.
9. The current term of the Lease runs through and including December 31, 2020.
The Notice to Cure
10. By the Notice to Cure, Defendant purported to advise Stahl of alleged defaults
Lease."
pursuant to "Paragraph 10 of the (A copy of the Notice to Cure is annexed hereto as
Exhibit B.)
11. Specifically, the Notice to Cure cites to one (1) purported violation issued by the
New York City Department of Buildings ("DOB") for the Premises (the "Alleged DOB
Violation"
Violation") respecting the Building's boiler, and ten (10) Summonses issued by the New York
City Department of Health and Mental Hygiene (the "DOHMH") respecting the Building's
Summonses,"
cooling tower (collectively, the "DOHMH and with the Alleged DOB Violation,
"Notices"
the "Notices"). (Copies of the Notices are annexed immediately to the Notice to Cure (as
Exhibit B), and also are annexed separately hereto as Exhibit C and Exhibit D, respectively.)
00066993. 3
3 of 10
FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018
12. Upon information and belief, the DOHMH Summonses each stem from a sitevisit
by an agent of the DOHMH to the Premises on August 24, 2017.
13. Specifically, the DOHMH Summonses each involve alleged violations concerning
Tower"
the record keeping protocol for the Building's water cooling tower (the "Cooling Tower") and
set proposed fines for the alleged violations as follows:
Summons No. 0880961950 - $1000
Summons No. 0880961960 - $500
Summons No. 0880961979 - $500
Summons No. 0880961988 - $500
Summons No. 0880961997 - $500
Summons No. 0880962006 - $500
Summons No. 0880962015 - $500
Summons No. 0880962024 - $1000
Summons No. 0880962033 - $500
Summons No. 0880962042 - $500
14. The DOHMH Summonses also each set a hearing date of July 2, 2018 at 8:30
a.m. at the DOHMH's Manhattan Office of Administrative Trials and Hearings (the "July 2
Hearing"
Hearing").
15. As Stahl has informed the Landlord (see below), itintends on appearing at the
July 2 Hearing to contest the DOHMH Summonses.
16. In addition, as stated above, a review of the DOHMH Summonses (as well as the
Alleged DOB Violation) demonstrates that at most they set forth alleged record-keeping issues.
17. Stahl is in the process of addressing all steps that are needed to address the
DOHMH other a routine and detailed record-
Summonses, including, among steps, instituting
keeping protocol. Stahl also has engaged a professional third-party water treatment vendor.
Accordingly, Stahl is in the process of preparing to have the DOHMH Summonses discharged as
of record.
00066993. 4
4 of 10
FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018
18. Stahl also is in the process of replacing the Cooling Tower, which has begun
Tower"
periodically leaking, in March 2018 with a brand-new tower (the "Replacement Tower"). The
original date for the installation of the Replacement Tower was March 9, 2018. While that date
had to be pushed back due to inclement weather, the installation is stillon track for March 2018.
19. Upon information and belief, the Alleged DOB Violation, which was issued on
February 24, 2017, stems from a purported failure to file an annual boiler 2015 inspection report.
20. The Alleged DOB Violation sets a proposed fine as follows:
Violation No. 022417LBLBIO03132 - $1000
21. Stahl is in the process of reviewing what itneeds to prepare and fileas respects
the annual boiler 2015 inspection report, as well as take any and all necessary steps to cause the
Alleged DOB Violation to be discharged as of record, including paying any imposed fine.
The Thirty (30) Day Notice to Cure Is Premature and Defective
22. There has not been any default by Stahl under the Lease, and the Notice to Cure is
premature and defective.
23. Despite the fact that the date for the July 2 Hearing is almost (5) months after the
date of the Notice to Cure, Defendant therein states that:
DEMAND is hereby made pursuant to Paragraph 20(c) of Lease
that Tenant cure itsdefaults under Paragraph 10 of the Lease, as
more particularly described herein, including, without limitation,
the correction, remediation and/or removal of the above
violations(s) and/or Summonses along with sufficient written proof
that such have been corrected, cured, remediated and removed of
record, and fully paid, and written confirmation and any support
documentation to sufficiently demonstrate that Tenant and/or
Tenant's authorized agent(s) or representative(s) will appear and/or
attend the aforementioned hearing(s) on July 2, 2018, as well as
any and all subsequent or further hearing(s), in connection with the
above DOHMH Summonses, and/or pay any and all fines and/or
satisfy any and all civil penalties imposed for said Summonses, on
or before March 31, 2018, which date is not less than thirty (30)
00066993. 5
5 of 10
FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018
days from the delivery of this Notice to Cure to the Tenant. If such
cure is not effectuated by March 31, 2018 the Landlord may
terminate your tenancy pursuant to the terms of the Lease.
(Exhibit B (emphasis in original).)
24. By my letter to Landlord, Stahl provided Landlord with written notice on
November 2017 -- prior to the issuance of the Notice to Cure -- inwhich itacknowledged
28,
notice of the DOHMH Summonses and unequivocally stated that it"is taking the necessary steps
satisfied."
to have the violations dismissed and or (A copy of the November 28, 2017 letter
(without exhibits) is annexed hereto as Exhibit E.)
25. By my further written notice to Landlord, dated and provided pursuant to the
Lease on March 9, 2018, Stahl also stated itsintention to appear at the July 2 Hearing, as well as
addressed what needed to be prepared and filed with respect to the annual boiler 2015 inspection
report, and itsintention to pay all imposed fines, if any, as respects the alleged violations. (A
copy of the March 9, 2018 letteris annexed hereto as Exhibit F.)
26. Accordingly, while the Notice to Cure is not clearly written, by providing written
notice of its intent to appear at the July 2 Hearing and to address any possible violations,
including paying any fines, itis at least arguable that Stahl already is in compliance with the
Notice to Cure.
27. In any event, ¶ 10 of the Lease referenced in the Notice to Cure requires Stahl to
"promptly observe and comply with allpresent and future laws, ordinances, requirements,
orders, directions, rules and regulations of the Federal, State, County and City Governments and
[Premises]..."
of all other government authorities affecting the (Exhibit A, ¶ 10 (p. 9).)
28. In the firstinstance, there has not been any determination by the DOHMH that
Plaintiff has violated any law, rule, regulations, etc., in default of¶ 10 of the Lease, and there can
00066993. 6
6 of 10
FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018
be no such determination at least until the conclusion of the July 2 Hearing. Similarly, while the
DOB has issued the Alleged DOB Violation, there has been no definitive determination as
respects this purported violation. For this reason alone, the Notice to Cure is premature and
defective.
29. Further, ¶ 20(c) of the Lease, upon which the Notice to Cure ispremised, provides
in pertinent part, as follows:
IfTenant shall default in complying with any other agreement,
term, covenant or condition of this lease and such default in
compliance shall continue fora period of thirty(30) days after
notice by Landlord specifying the claimed default, and Tenant
shall not, in good faith, have commenced, within said thirty
(30) day period to remedy such default and diligently and
continuously proceed therewith; then, in any such event,
Landlord may serve a written five (5) day notice of cancellation
and termination of this lease, and upon the expiration of said five
(5) days, this lease and the term thereunder shall end and expire as
fully and completely as ifthe date of expiration of such five (5)
day period were the day herein definitely fixed for the end and
expiration of this lease and the tenn thereof, and Tenant shall then
quit and surrender to Landlord the demised premises and each and
every part thereof and Landlord may enter into or repossess the
demised premises and each and every part thereof either by force,
summary proceedings or otherwise.
(Exhibit A; ¶ 20(c) (p. 25) (emphasis added).)
30. Plainly, ¶ 20(c) of the Lease does not require cure of an alleged default by a
certain date as demanded in the Notice to Cure, but rather requires Plaintiff, in good faith, to
commence within the thirty (30) day notice to cure period to remedy the alleged default and
therewith."
"diligently and continuously proceed As set forth herein, that is precisely what
Plaintiff is doing as respects both the DOHMH Summonses and the Alleged DOB Violation.
Therefore, Stahl is not in default under the Lease.
00066993. 7
7 of 10
FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018
31. Moreover, the alleged DOHMH violations are being addressed and to the extent
necessary, being remedied, but they cannot be completely cured within the designated time
frame of March 31, 2018 set forth in the Notice to Cure (ifthat, in fact,is what the notice
requires), despite the good faith and diligent efforts that Plaintiff has undertaken and will
continue to undertake, because part of itsefforts requires an appearance at the July 2 Hearing.
32. Likewise, Stahl is diligently reviewing what itneeds to prepare and file as
respects the 2015 annual boiler report and is prepared to pay any fine imposed by the DOB,
which shall cure the Alleged DOB Violation.
33. Therefore, because Plaintiff has commenced in good faith to remedy any alleged
defaults under ¶ 10 of the Lease and has diligently and continuously proceeded with itsefforts in
accordance with ¶ 20 of the Lease, the Lease may not be terminated on March 31, 2018 as
threatened by Defendant in the Notice to Cure.
34. Additionally, given that the July 2 Hearing, which was unilaterally scheduled by
the DOHMH, and at which Stahl shall contest the violations and have the summonses discharged
as of record and/or pay any of the proposed DOHMH fines, fallsbeyond the curative date of
March 31, 2018 set forth in the Notice to Cure, ipso facto, Stahl cannot complete the curative
action demanded within the Notice to Cure period apparently set forth therein through no faultof
its own. Accordingly, Stahl should be afforded the protections granted to itunder the Lease and
under the law.
35. Pursuant to the terms of the Lease, Stahl's time to cure the Alleged DOHMH
Violations must be extended to a reasonable period of time beyond March 31, 2018 curative date
set forth in the Notice to Cure, k, to a reasonable date after the July 2 Hearing.
00066993. 8
8 of 10
FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018
36. Likewise, any purported default as respects the Alleged DOB Violation should
also be extended for a reasonable period of time after March 31, 2018.
37. The Notice to Cure is premature and runs afoul of Stahl's rights under the Lease,
and therefore, is defective.
Stahl is Not In Default Under the Lease but is Ready, Willing and Able to Cure
38. As stated, Stahl is not in default under Lease based on the Notices.
39. Stahl is complying with itsobligations as respects the Cooling Tower located at
the Building, and in fact is inthe process of replacing the leaking Cooling Tower in March 2018
with the Replacement Tower.
40. In addition, as set forth above, a review of the Notices demonstrates that at most
they set forth alleged record-keeping issues, and as stated, Stahl is inthe process of taking all
steps that are needed to address the alleged violations, including, among others, instituting a
routine and detailed record-keeping protocol and engaging a professional third-party water
treatment vendor. Similarly, Stahl is addressing what itneeds to prepare and fileas respects the
annual boiler 2015 inspection report and/or itwill pay any imposed fines as and ifnecessary.
41. Thus, even leaving aside the critical fact that there has been no determination by
the relevant agency that there have been violations of New York City regulations, pursuant to ¶
20(c) of the Lease, Stahl is not in default of ¶ 10 of the Lease or otherwise in default under the
Lease.
42. Further, Stahl intends on appearing at the July 2 Hearing (and any adjourned
date(s)) to seek a discharge of the DOHMH Summonses as of record, but if an adverse
determination is reached on one or more of the DOHMH Summonses, Stahl is ready, willing and
able to take any necessary action to cure any alleged default under the Lease, including
00066993. 9
9 of 10
FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018
appearing at the July 2 Hearing and paying one or more of the proposed fines and satisfying each
of the DOHMH Summonses ifthere is an adverse determination made at the hearing. Likewise,
as stated, Stahl is ready, willing and able to cure the Alleged DOB Violation.
43. Accordingly, for the reasons set forth herein, and in the Complaint and the
Memorandum of Law, I respectfully request Stahl's motion be granted in itsentirety.
MATT EW LOVALLO
Sworn to before me this
'
9 day of March, 2018
Notary Public
Caroline Dunphy
Notary Public, of'
of
State New York
No.
01DU6246369
Qualified inOrange
Commission County
Exples August 8, 2019
00066993.DOCX
00066993. 10
10 of 10
Preview
FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------x : STAHL MIDTOWN PROPERTIES LLC, : Index No. : Plaintiff, : : AFFIDAVIT OF -against- : MATTHEW LOVALLO : 49 BROADWAY LLC, : : Defendant, : ----------_____________----------------------------------------X STATE OF NEW YORK ) ss COUNTY OF NEW YORK ) MATTHEW LOVALLO, being duly sworn, deposes and says: 1. I am an authorized representative of plaintiff Stahl Midtown Properties LLC ("Plaintiff" or "Stahl"), and in this position I am responsible for overseeing the operation of the building located at 49 Broadway a/k/a 25 Trinity Place, New York, New York 10006 "Building," "Premises" (hereinafter, the with the underlying land, the "Premises") for Stahl, which isthe ground lessee of the Premises. 2. I respectfully submit this affidavit, based on my personal knowledge and/or my review of Stahl's business records, in support of Stahl's application for a restraining order and a Yellowstone injunction and/or preliminary injunction: (a) staying and tolling the expiration of the cure period set forth in a Cure" purported "Thirty (30) Day Notice to dated February 6, 2018 (the "Notice to Cure" Cure"), but which was mailed by return receipt requested on February 14, 2018, from ("Defendant" "Landlord" defendant 49 Broadway LLC or "Landlord") to Plaintiff in which Defendant claims that Plaintiff has violated the commercial ground lease dated 00066993. 1 of 10 FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018 "Lease" December 30, 1960 (the "Lease"), for the improved premises known as 49 Broadway a/k/a 25 Trinity Place, New York, New York 10036 and threatens termination of the Lease based upon such purported violations; and (b) temporarily, preliminarily and/or permanently, enjoining and restraining Defendant, itsagents, servants, representatives and allpersons and entities known and unknown, acting on itsbehalf or in concert with it,in any manner or by any means, from taking any action to terminate the Lease pursuant to the terms thereof, the Notice to Cure or at law and/or to commence any action or summary proceedings to evict the Plaintiff or to otherwise interfere with Plaintiff's possession of the Premises; and (c) awarding Plaintiff such other and further relief as this Court may deem just, proper and equitable under the circumstances, including but not limited to an attorneys' award of Plaintiff's fees, costs and disbursements. 3. This affidavit is based on my personal knowledge and my review of Stahl's books and records. The Parties 4. Plaintiff is a limited liability company duly organized under the laws of the State of Delaware and authorized to do business in New York with an address of 277 Park Avenue, New York, New York 10172. 5. Upon information and belief, Landlord is a limited liability company organized 10th under the laws of the State of New York with an address of 1185 Sixth Avenue, floor,New York, New York 10036. 00066993. 2 2 of 10 FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018 The Lease 6. Upon information and belief, Defendant is the fee owner of the Premises. 7. Plaintiff and Defendant are the successor parties to the Lease, which was originally made by and between Gary Builders Inc., a predecessor-in-interest to Defendant, and Exchange Nut Products, Inc., dated December 30, 1960. (A copy of the Lease is annexed hereto as Exhibit A.) 8. The Lease was assigned by Assignment and Assumption of Ground Lease dated O' June 21, 2001 by Chock Full Nuts Corporation (successor-by-merger to Exchange Nut Products, Inc.) to Plaintiff as tenant. Pursuant thereto, Plaintiff is the ground lessee of the Premises. 9. The current term of the Lease runs through and including December 31, 2020. The Notice to Cure 10. By the Notice to Cure, Defendant purported to advise Stahl of alleged defaults Lease." pursuant to "Paragraph 10 of the (A copy of the Notice to Cure is annexed hereto as Exhibit B.) 11. Specifically, the Notice to Cure cites to one (1) purported violation issued by the New York City Department of Buildings ("DOB") for the Premises (the "Alleged DOB Violation" Violation") respecting the Building's boiler, and ten (10) Summonses issued by the New York City Department of Health and Mental Hygiene (the "DOHMH") respecting the Building's Summonses," cooling tower (collectively, the "DOHMH and with the Alleged DOB Violation, "Notices" the "Notices"). (Copies of the Notices are annexed immediately to the Notice to Cure (as Exhibit B), and also are annexed separately hereto as Exhibit C and Exhibit D, respectively.) 00066993. 3 3 of 10 FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018 12. Upon information and belief, the DOHMH Summonses each stem from a sitevisit by an agent of the DOHMH to the Premises on August 24, 2017. 13. Specifically, the DOHMH Summonses each involve alleged violations concerning Tower" the record keeping protocol for the Building's water cooling tower (the "Cooling Tower") and set proposed fines for the alleged violations as follows: Summons No. 0880961950 - $1000 Summons No. 0880961960 - $500 Summons No. 0880961979 - $500 Summons No. 0880961988 - $500 Summons No. 0880961997 - $500 Summons No. 0880962006 - $500 Summons No. 0880962015 - $500 Summons No. 0880962024 - $1000 Summons No. 0880962033 - $500 Summons No. 0880962042 - $500 14. The DOHMH Summonses also each set a hearing date of July 2, 2018 at 8:30 a.m. at the DOHMH's Manhattan Office of Administrative Trials and Hearings (the "July 2 Hearing" Hearing"). 15. As Stahl has informed the Landlord (see below), itintends on appearing at the July 2 Hearing to contest the DOHMH Summonses. 16. In addition, as stated above, a review of the DOHMH Summonses (as well as the Alleged DOB Violation) demonstrates that at most they set forth alleged record-keeping issues. 17. Stahl is in the process of addressing all steps that are needed to address the DOHMH other a routine and detailed record- Summonses, including, among steps, instituting keeping protocol. Stahl also has engaged a professional third-party water treatment vendor. Accordingly, Stahl is in the process of preparing to have the DOHMH Summonses discharged as of record. 00066993. 4 4 of 10 FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018 18. Stahl also is in the process of replacing the Cooling Tower, which has begun Tower" periodically leaking, in March 2018 with a brand-new tower (the "Replacement Tower"). The original date for the installation of the Replacement Tower was March 9, 2018. While that date had to be pushed back due to inclement weather, the installation is stillon track for March 2018. 19. Upon information and belief, the Alleged DOB Violation, which was issued on February 24, 2017, stems from a purported failure to file an annual boiler 2015 inspection report. 20. The Alleged DOB Violation sets a proposed fine as follows: Violation No. 022417LBLBIO03132 - $1000 21. Stahl is in the process of reviewing what itneeds to prepare and fileas respects the annual boiler 2015 inspection report, as well as take any and all necessary steps to cause the Alleged DOB Violation to be discharged as of record, including paying any imposed fine. The Thirty (30) Day Notice to Cure Is Premature and Defective 22. There has not been any default by Stahl under the Lease, and the Notice to Cure is premature and defective. 23. Despite the fact that the date for the July 2 Hearing is almost (5) months after the date of the Notice to Cure, Defendant therein states that: DEMAND is hereby made pursuant to Paragraph 20(c) of Lease that Tenant cure itsdefaults under Paragraph 10 of the Lease, as more particularly described herein, including, without limitation, the correction, remediation and/or removal of the above violations(s) and/or Summonses along with sufficient written proof that such have been corrected, cured, remediated and removed of record, and fully paid, and written confirmation and any support documentation to sufficiently demonstrate that Tenant and/or Tenant's authorized agent(s) or representative(s) will appear and/or attend the aforementioned hearing(s) on July 2, 2018, as well as any and all subsequent or further hearing(s), in connection with the above DOHMH Summonses, and/or pay any and all fines and/or satisfy any and all civil penalties imposed for said Summonses, on or before March 31, 2018, which date is not less than thirty (30) 00066993. 5 5 of 10 FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018 days from the delivery of this Notice to Cure to the Tenant. If such cure is not effectuated by March 31, 2018 the Landlord may terminate your tenancy pursuant to the terms of the Lease. (Exhibit B (emphasis in original).) 24. By my letter to Landlord, Stahl provided Landlord with written notice on November 2017 -- prior to the issuance of the Notice to Cure -- inwhich itacknowledged 28, notice of the DOHMH Summonses and unequivocally stated that it"is taking the necessary steps satisfied." to have the violations dismissed and or (A copy of the November 28, 2017 letter (without exhibits) is annexed hereto as Exhibit E.) 25. By my further written notice to Landlord, dated and provided pursuant to the Lease on March 9, 2018, Stahl also stated itsintention to appear at the July 2 Hearing, as well as addressed what needed to be prepared and filed with respect to the annual boiler 2015 inspection report, and itsintention to pay all imposed fines, if any, as respects the alleged violations. (A copy of the March 9, 2018 letteris annexed hereto as Exhibit F.) 26. Accordingly, while the Notice to Cure is not clearly written, by providing written notice of its intent to appear at the July 2 Hearing and to address any possible violations, including paying any fines, itis at least arguable that Stahl already is in compliance with the Notice to Cure. 27. In any event, ¶ 10 of the Lease referenced in the Notice to Cure requires Stahl to "promptly observe and comply with allpresent and future laws, ordinances, requirements, orders, directions, rules and regulations of the Federal, State, County and City Governments and [Premises]..." of all other government authorities affecting the (Exhibit A, ¶ 10 (p. 9).) 28. In the firstinstance, there has not been any determination by the DOHMH that Plaintiff has violated any law, rule, regulations, etc., in default of¶ 10 of the Lease, and there can 00066993. 6 6 of 10 FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018 be no such determination at least until the conclusion of the July 2 Hearing. Similarly, while the DOB has issued the Alleged DOB Violation, there has been no definitive determination as respects this purported violation. For this reason alone, the Notice to Cure is premature and defective. 29. Further, ¶ 20(c) of the Lease, upon which the Notice to Cure ispremised, provides in pertinent part, as follows: IfTenant shall default in complying with any other agreement, term, covenant or condition of this lease and such default in compliance shall continue fora period of thirty(30) days after notice by Landlord specifying the claimed default, and Tenant shall not, in good faith, have commenced, within said thirty (30) day period to remedy such default and diligently and continuously proceed therewith; then, in any such event, Landlord may serve a written five (5) day notice of cancellation and termination of this lease, and upon the expiration of said five (5) days, this lease and the term thereunder shall end and expire as fully and completely as ifthe date of expiration of such five (5) day period were the day herein definitely fixed for the end and expiration of this lease and the tenn thereof, and Tenant shall then quit and surrender to Landlord the demised premises and each and every part thereof and Landlord may enter into or repossess the demised premises and each and every part thereof either by force, summary proceedings or otherwise. (Exhibit A; ¶ 20(c) (p. 25) (emphasis added).) 30. Plainly, ¶ 20(c) of the Lease does not require cure of an alleged default by a certain date as demanded in the Notice to Cure, but rather requires Plaintiff, in good faith, to commence within the thirty (30) day notice to cure period to remedy the alleged default and therewith." "diligently and continuously proceed As set forth herein, that is precisely what Plaintiff is doing as respects both the DOHMH Summonses and the Alleged DOB Violation. Therefore, Stahl is not in default under the Lease. 00066993. 7 7 of 10 FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018 31. Moreover, the alleged DOHMH violations are being addressed and to the extent necessary, being remedied, but they cannot be completely cured within the designated time frame of March 31, 2018 set forth in the Notice to Cure (ifthat, in fact,is what the notice requires), despite the good faith and diligent efforts that Plaintiff has undertaken and will continue to undertake, because part of itsefforts requires an appearance at the July 2 Hearing. 32. Likewise, Stahl is diligently reviewing what itneeds to prepare and file as respects the 2015 annual boiler report and is prepared to pay any fine imposed by the DOB, which shall cure the Alleged DOB Violation. 33. Therefore, because Plaintiff has commenced in good faith to remedy any alleged defaults under ¶ 10 of the Lease and has diligently and continuously proceeded with itsefforts in accordance with ¶ 20 of the Lease, the Lease may not be terminated on March 31, 2018 as threatened by Defendant in the Notice to Cure. 34. Additionally, given that the July 2 Hearing, which was unilaterally scheduled by the DOHMH, and at which Stahl shall contest the violations and have the summonses discharged as of record and/or pay any of the proposed DOHMH fines, fallsbeyond the curative date of March 31, 2018 set forth in the Notice to Cure, ipso facto, Stahl cannot complete the curative action demanded within the Notice to Cure period apparently set forth therein through no faultof its own. Accordingly, Stahl should be afforded the protections granted to itunder the Lease and under the law. 35. Pursuant to the terms of the Lease, Stahl's time to cure the Alleged DOHMH Violations must be extended to a reasonable period of time beyond March 31, 2018 curative date set forth in the Notice to Cure, k, to a reasonable date after the July 2 Hearing. 00066993. 8 8 of 10 FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018 36. Likewise, any purported default as respects the Alleged DOB Violation should also be extended for a reasonable period of time after March 31, 2018. 37. The Notice to Cure is premature and runs afoul of Stahl's rights under the Lease, and therefore, is defective. Stahl is Not In Default Under the Lease but is Ready, Willing and Able to Cure 38. As stated, Stahl is not in default under Lease based on the Notices. 39. Stahl is complying with itsobligations as respects the Cooling Tower located at the Building, and in fact is inthe process of replacing the leaking Cooling Tower in March 2018 with the Replacement Tower. 40. In addition, as set forth above, a review of the Notices demonstrates that at most they set forth alleged record-keeping issues, and as stated, Stahl is inthe process of taking all steps that are needed to address the alleged violations, including, among others, instituting a routine and detailed record-keeping protocol and engaging a professional third-party water treatment vendor. Similarly, Stahl is addressing what itneeds to prepare and fileas respects the annual boiler 2015 inspection report and/or itwill pay any imposed fines as and ifnecessary. 41. Thus, even leaving aside the critical fact that there has been no determination by the relevant agency that there have been violations of New York City regulations, pursuant to ¶ 20(c) of the Lease, Stahl is not in default of ¶ 10 of the Lease or otherwise in default under the Lease. 42. Further, Stahl intends on appearing at the July 2 Hearing (and any adjourned date(s)) to seek a discharge of the DOHMH Summonses as of record, but if an adverse determination is reached on one or more of the DOHMH Summonses, Stahl is ready, willing and able to take any necessary action to cure any alleged default under the Lease, including 00066993. 9 9 of 10 FILED: NEW YORK COUNTY CLERK 03/12/2018 06:27 PM INDEX NO. 651160/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/12/2018 appearing at the July 2 Hearing and paying one or more of the proposed fines and satisfying each of the DOHMH Summonses ifthere is an adverse determination made at the hearing. Likewise, as stated, Stahl is ready, willing and able to cure the Alleged DOB Violation. 43. Accordingly, for the reasons set forth herein, and in the Complaint and the Memorandum of Law, I respectfully request Stahl's motion be granted in itsentirety. MATT EW LOVALLO Sworn to before me this ' 9 day of March, 2018 Notary Public Caroline Dunphy Notary Public, of' of State New York No. 01DU6246369 Qualified inOrange Commission County Exples August 8, 2019 00066993.DOCX 00066993. 10 10 of 10