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FILED: QUEENS COUNTY CLERK 07/28/2022 02:41 PM INDEX NO. 708384/2021
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/28/2022
Exhibit “C”
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
PAKO REALTY CORP.
Index No. 708384/2021
Plaintiff,
-against-
F.T. WEDDING GROUP LTD. AKA DAE DONG NOTICE OF MOTION
CATERING HALL, JUNG OK CHA, FOR
CHARLES CHA, SUMMARY JUDGMENT
Defendants.
PLEASE TAKE NOTICE that upon the accompanying Affirmation of Cris L. Gottlieb,
Esq., dated August 4, 2021, the Affidavit of Hak Yun Shin, dated August 2, 2021, the Statement
of Material Facts dated August 4, 2021, the exhibits annexed thereto and the accompanying
memorandum of law in support, and upon all of the papers and proceedings heretofore filed and
had herein, Plaintiff PAKO REALTY CORP. (the “Plaintiff”), by their attorneys Borah,
Goldstein, Altschuler, Nahins & Goidel, P.C., will move at the Motion Support Part of
this Court, at Room 140 of the Courthouse located 88-11 Sutphin Blvd., Jamaica, New York
11435, on the 1st day of October, 2021, at 9:30 a.m. or as soon thereafter as counsel can be heard,
for an Order, pursuant to CPLR § 3212:
(a) On the First Cause of Action, a judgment against F.T Wedding Group LTD.
AKA Dae Dong Catering Hall, joint and several, in the amount of
$2,887,235.15; and
(b) On the Third Cause of Action, a declaratory judgment against defendants
Jung Ok Cha and Charles Cha, joint and several, in the amount of
$2,887,235.15; and
(c) On the Fourth Cause of Action, a judgment piercing the corporate veil and
holding defendants Jung Ok Cha and Charles Cha personally liable, jointly
and severally, for the debts of F.T. Wedding Group LTD. Aka Dae Dong
Catering Hall in the amount of $2,887,235.15 plus interest from April 1,
2021, together with legal fees, costs, and disbursements; and
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(d) Granting Plaintiff a money judgment against Defendants, jointly and
severally, in the amount of $2,887,235.15; and
(e) On the Fifth Cause of Action a judgment declaring that Plaintiff is entitled
to immediate possession of the Premises; the issuance of a Judgment and
Order of Ejectment for the Premises removing Defendants there from and
putting Plaintiff into immediate possession; and directing the Sheriff to eject
Defendants from the Premises.
(f) On the Sixth Cause of Action, a judgment against Defendants, joint and
several, in an amount to be determined by the Court by which is believed to
be no less than $25,000.000, plus interest from April 1, 2021, together with
costs, and disbursements
(g) Granting Plaintiff such other and further relief as this Court deems just and
proper.
PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214(b), answering papers,
if any, must be served upon the undersigned attorneys for Defendants so that they are received no
less than seven (7) days before the return date.
Dated: New York, New York
August 4, 2021
BORAH, GOLDSTEIN, ALTSCHULER,
NAHINS & GOIDEL, P.C.
By:________________________________
CRIS L. GOTTLIEB, ESQ.
Attorneys for Plaintiff
377 Broadway
New York, New York 10013
(212) 431-1300
TO: VIA NYSCEF ONLY
The Law Office of John C. Kim, P.C.
Attorneys for Defendants
163-10 Northern Blvd., Ste. 201
Flushing, NY 11358
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IISUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
PAKO REALTY CORP. Index No.: 708384/2021
Plaintiff,
-against- AFFIRMATION IN
SUPPORT
F.T. WEDDING GROUP LTD. AKA DAE DONG
CATERING HALL, JUNG OK CHA,
CHARLES CHA,
Defendants.
CRIS L. GOTTLIEB, an attorney duly admitted to practice law in the State of New
York, hereby affirms under the penalty of perjury as follows:
1. I am a Senior Associate of Borah, Goldstein, Altschuler, Nahins & Goidel, P.C.,
attorneys for the plaintiff PAKO REALTY CORP. (“Plaintiff'”), and am fully familiar with the
facts and circumstances set forth herein.
2. This affirmation is submitted in support of Plaintiff’s motion dismissing the
Defendants’ affirmative defenses, and awarding Plaintiff summary judgment on its causes of
action against Defendants; together with such other, further and different relief as is just and proper
(The pleadings are incorporated by reference as the Summons and Complaint NYSCEF Doc. No.
1, the Verified Answer NYSCEF Doc. No. 7). 1
3. This motion should be granted because F.T. WEDDING GROUP LTD. AKA DAE
DONG CATERING HALL (the “Tenant”) breached it’s lease with Plaintiff. Inasmuch as
Defendants’ have disregarded Tenant’s corporate formality, the corporate veil has been breached
by Defendants and individuals are liable for Tenant’s debts to Plaintiff.
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“NYSCEF Doc. No. __” refers to the document’s number on the electronic filing docket for this
action. Pursuant to CPLR 2214(c), the Court is respectfully referred to the papers previously e-
filed with the Court which are hereby incorporated herein by reference to their document number
on the electronic filing docket rather than being annexed hereto, and re-filed, as exhibits hereto.
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TABLE OF EXHIBITS
4. The following Exhibits, being true and accurate copies of each exhibit are annexed
in support of this motion:
EXHIBIT DESCRIPTION
A Summons and Verified Complaint, NYSCEF Doc. No. 1
B Answer, NYSCEF Doc. No. 7
C Deed
D Lease
E Guaranty
F Ledger
G Letter from Office of John Kim
H 5-Day Notice to Terminate
I Tax Bills 2019-2021
J First Mortgage
K Second Mortgage
PROCEDURAL BACKGROUND
5. On or about April 12, 2021, Plaintiff commenced this action by way of Summons
and Verified Complaint (Exhibit “A,” see NYSCEF Doc. No. 1).
6. On May 24, 2021, Defendants Joined Issue by filing their Verified Answer (Exhibit
“B,” see NYSCEF Doc. No. 7).
7. Plaintiff now moves for summary judgment, and there has been no prior motion for
the relief sought in this motion.
PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT AGAINST TENANT
8. The facts upon which Plaintiff is entitled to the relief sought herein are stated in the
accompanying Affidavit of Hak Yun Shin (the “Shin Affidavit”) and incorporated herein by
reference.
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9. As set forth in the Shin Affidavit, Tenant both owes significant rent arrears and has
refused to vacate the Premises despite being served with a 5-Day Notice to Terminate. There were
no agreements between Plaintiff and Defendants that would forgive or set aside Tenant’s
obligations to Plaintiff, nor were there any agreements between Plaintiff and Defendants that
would forgive or set aside the individual Co-Owners obligations to Plaintiff.
10. Plaintiff seeks judgment against Defendants as follows:
(a) On the First Cause of Action, a judgment against F.T.
Wedding Group LTD. AKA Dae Dong Catering Hall, joint
and several, in the amount of $2,887,235.15; and
(b) On the Third Cause of Action, a declaratory judgment
against defendants Jung Ok Cha and Charles Cha, joint and
several, in the amount of $2,887,235.15; and
(c) On the Fourth Cause of Action, a judgment piercing the
corporate veil and holding defendants Jung Ok Cha and
Charles Cha personally liable, jointly and severally, for the
debts of F.T. Wedding Group LTD. AKA Dae Dong
Catering Hall in the amount of $2,887,235.15 plus interest
from April 1, 2021, together with legal fees, costs, and
disbursements; and
(d) Granting Plaintiff a money judgment against Defendants,
jointly and severally, in the amount of $2,887,235.15; and
(e) On the Fifth Cause of Action a judgment declaring that
Plaintiff is entitled to immediate possession of the Premises;
the issuance of a Judgment and Order of Ejectment for the
Premises removing Defendants there from and putting
Plaintiff into immediate possession; and directing the Sheriff
to eject Defendants from the Premises.
(f) On the Sixth Cause of Action, a judgment against
Defendants, joint and several, in an amount to be determined
by the Court by which is believed to be no less than
$25,000.000, plus interest from April 1, 2021, together with
costs, and disbursements
(g) Granting Plaintiff such other and further relief as this Court
deems just and proper.
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11. The points of law upon which Plaintiff is entitled to the relief sought herein are
stated in the accompanying Memorandum of Law and is incorporated herein by reference.
WHEREFORE, Plaintiff requests an order granting its motion in its entirety.
Dated: New York, New York
August 4, 2021
_____________________________
CRIS L. GOTTLIEB
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ATTORNEY CERTIFICATION PURSUANT TO 202.8-b
I, Cris L. Gottlieb, an attorney duly admitted to practice law before the courts of the State
of New York, hereby certify that this Affirmation complies with the word count limit set forth in
Section 202.8-b of the Supreme Court (22 NYCRR 202.8-b) because it contains 812 words,
excluding the parts of the Affirmation exempted by Section 202.8-b. In preparing this certification,
I have relied on the word count of the word-processing system used to prepare this Affirmation.
Dated: New York, New York
August 4, 2021
By:___________________________
Cris L. Gottlieb, Esq
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
PAKO REALTY CORP. Index No.: 708384/2021
Plaintiff,
-against- AFFIDAVIT IN SUPPORT
F.T. WEDDING GROUP LTD. AKA DAE DONG
CATERING HALL, JUNG OK CHA,
CHARLES CHA,
Defendants.
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Hak Yun Shin, being duly sworn, deposes and says:
1. I am the president of plaintiff Pako Realty Corp. (“Plaintiff” or “Landlord”), who
is the owner of the building located at 150-24 Northern Boulevard, Queens, New York 11354 (the
“Building”) and am fully familiar with the facts and circumstances set forth herein pertaining to
this action against defendants F.T. Wedding Group LTD. Aka Dae Dong Catering Hall, (the
“Tenant”), Jung Ok Cha and Charles Cha (the “Co-Owners,” collectively, with Tenant, the
“Defendants”).
2. This affidavit is submitted in support of Plaintiff’s motion dismissing the
Defendants’ affirmative defenses, counterclaims, and awarding Plaintiff summary judgment on its
causes of action against Defendants; together with such other, further and different relief as is just
and proper.
3. This motion should be granted because Tenant breached its lease with Plaintiff.
Inasmuch as the Co-Owners have disregarded F.T. Wedding Group LTD. AKA Dae Dong
Catering Hall’s corporate formality, the corporate veil has been pierced, and the Co-Owners must
be held liable for Tenant’s debts to Plaintiff, both personally and as Guarantors.
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PROCEDURAL BACKGROUND
4. The procedural history and table of exhibits stated in the annexed attorney
affirmation of Cris L. Gottlieb are incorporated herein by reference.
FACTUAL BACKGROUND
5. Plaintiff is a corporation organized and existing pursuant to the laws of the State of
New York. Plaintiff is the Owner of the Building. (A copy of Plaintiff’s deed, dated July 22, 2015,
for the Building is annexed as Exhibit “C”).
6. Tenant is a domestic business corporation organized and existing pursuant to the
laws of the State of New York.
A. The Lease
7. F.T. Wedding Group LTD, also known as Dae Dong Catering Hall, is the tenant of
commercial space described as: the entire second floor, located in the Building (the “Premises”)
pursuant to a written lease agreement dated January, 2012, entered into between F.T. Wedding
Group LTD, as tenant, and 15024 Emmut Properties LLC, Plaintiff’s predecessor in interest, as
landlord, for a term of twenty (20) years, which term commenced on January 1, 2012, and expires
on December 31, 2031 (the “Lease,” a copy of which is annexed as Exhibit “D”).
8. Concurrently, or around the same time, with execution of the Lease, Co-Owners
individually and collectively executed a Limited Guaranty (the “Guaranty”) wherein they
personally obligated themselves for all of Tenant’s Lease obligations (copies of which are annexed
as Exhibit “E”).
Relevant Lease Provisions
Rent Obligations
9. Pursuant to Lease Rider Section 44 (A), Tenant agreed to pay fixed and additional
rent (and all other charges due under this Lease) as follows:
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The obligation of Tenant to pay fixed and additional rent (and all
other charges due under this Lease) shall commence immediately on
the date of the commencement of the term of this Lease. All rent,
additional rent and other charges payable to Landlord under any
provision of this Lease shall be paid to Landlord, or as Landlord may
otherwise designate, in lawful money of the United States which
shall be legal tender for the payment of all debts and dues, public
and private, at the time of payment, at the address of Landlord, or at
such other place as Landlord in writing may designate , without
(except as may be otherwise herein expressly provided) any setoff,
counterclaim or deduction whatsoever and without any prior
demand therefore.
10. Pursuant to Lease Rider Section 44 (B), of the Lease, the annual and monthly rent
for the term of the Lease is stated as follows:
RENT SCHEDULE
Year Annual Rent Monthly Rent
1 (2019) $782,199.75 $65,183.31
2 (2020) $805,665.74 $67,138.81
3 (2021) $829,835.71 $69,152.98
Real Estate Tax Escalation
11. Pursuant to Lease Rider Section 46, Tenant agreed to pay 33.33% of increases in
real estate taxes escalations, as follows, in relevant part:
B. If the Taxes for any Tax Year shall be greater than the Base Tax,
Tenant shall pay as Additional Rent for such Tax Year a sum equal
to Tenant's Proportionate Share of the amount by which the Taxes for
such Tax Year are greater than the Base Tax (which amount is
hereinafter called the "Tax Payment"). Should this Lease commence
or terminate prior to the expiration of a Tax Year, such Tax Payment
shall be prorated to, and shall be payable on, or as and when
ascertained after the Commencement Date or the Expiration Date as
the case may be. Tenant's obligation to pay such Additional Rent
pursuant to this Article 38, shall survive the termination of this Lease.
***
[A] 3. "Base Tax" shall mean the Taxes for the City of New York
fiscal tax year commencing July 1,2006 and ending June 30, 2007
(the "Base Tax Year").
***
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[A] 4. "Tenant's Proportionate Share" shall mean thirty-three and
one- third (33.33%) percent.
Late Fees
12. Pursuant to Lease Rider Section 44(G), Tenant agreed to pay late fees, as follows:
If Tenant shall fail to pay when due any installment of Base Rent or
any payment of additional rent for a period of ten (10) days after
such installment or payment shall have become due, Tenant shall
pay a late fee of six cents ($.06) per dollar of the amount of such late
installment or payment and such late fee shall be deemed additional
rent. The provisions of this paragraph (G)are in addition to all other
remedies available to Landlord for nonpayment of Base Rent or
additional rent.
Water Charges
13. Pursuant to Lease Rider Section 54, Tenant agreed to pay water charges, as follows:
Unless the demised premises shall already be served by a separate
water meter, Landlord shall at its own cost and expense arrange for
the installation of a water meter or sub meter for water service to the
demised premises and receive such service directly from the public
utility company or the City of New York. Tenant shall pay for all
water consumed at the demised premises and all attendant sewer
charges/rents. Any invoices tendered to Tenant for water and sewer
usage shall be due and payable by Tenant within twenty (20) days
of the date of the invoice. Failure by Tenant to pay said charges
within thirty days may result in the shutoff of the Tenant's water
supply by the Landlord. Tenant shall additionally reimburse
Landlord, as additional rent, for the cost of any "special" water meter
readings had within thirty (30) days of billing therefor.
Maintenance Fees
14. Pursuant to Lease Rider Section 74, Tenant owes maintenance fees for ongoing
capital improvements, as follows:
Notwithstanding anything herein to the contrary, if at any time
during the term of this Lease, Landlord expends any sums for
alterations or improvements to the Building which are required to
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be made pursuant to any law, ordinance or governmental regulation,
or any portion of such law, ordinance or governmental regulation
specific to Tenant's use or business operations, which becomes
effective after the date hereof, Tenant shall pay to Landlord, as
additional rent, the same percentage of such cost as is set forth in the
provision of this Lease which requires Tenant to pay increases in
Real Estate Taxes, within ten (10) days after demand therefor. If,
however, the cost of such alteration or improvements is one which
is required to be amortized over a period of time pursuant to
applicable governmental regulations. Tenant shall pay to Landlord,
as additional rent, during each year in which occurs any part of the
Lease term, the above-stated percentage of the reasonable annual
amortization of the cost of the alteration or improvement made. For
the purposes of this Article 74, the cost of any alteration or
improvement made shall be deemed to include the cost of preparing
any necessary plans and the fees for filing such plans.
Attorney Fees and Costs
15. Pursuant to Lease Articles 18 and 19, Lease Rider Section 61, Tenant agreed to
reimburse the Landlord for the costs and expenses incurred to enforce the Lease.
18(c) Tenant or the legal representatives of Tenant shall also pay
Owner, as liquidated damages, for the failure of Tenant to observe
and perform said Tenant's covenants herein contained, and a
deficiency between the rent hereby reserved and/or covenanted to
be paid and the net amount, if any, of the rents collected on account
or the subsequent lease or leases of the demised premises for each
month of the period which would otherwise have constituted the
balance of the term of this lease. The failure of Owner to re-let tile
demised premises or any part or parts thereof shall not release or
affect Tenant's liability for damages. In computing such liquidated
damages there shall be added to the said deficiency such expenses
as Owner may incur in connection with re-letting, such as legal
expenses, reasonable attorney's fees…
19. If Tenant shall default in the observance of performance of any
term or covenant on Tenant's part to be observed or performed
Under, or by virtue of, any of the terms or provisions in any article
of this Lease, after notice if required, and upon expiration of any
applicable grace period if any, (except in an emergency) then, unless
otherwise provided elsewhere in this lease owner may immediately
or at any time thereafter, and without notice. perform the obligation
of Tenant thereunder, and if owner, in connection therewith or
connection with any default by Tenant in the covenant to pay rent
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here under makes any expenditures or incurs any obligations for the
payment of money including but not limited to reasonable attorney
's fees, in instituting prosecuting or defending any actions or
proceeding and prevails in any such action or proceeding, such sums
to or obligations incurred with interests and costs shall be deemed
to additional rent hereunder and shall be paid by Tenant to Owner…
61. (B) Whenever any default by Tenant causes Landlord to incur
attorney's fees and/or any other costs or expenses, Tenant agrees that
it shall pay and/or reimburse Landlord, as additional rent hereunder,
for such fees, costs or expenses within thirty (30) days after being
billed therefore unless a shorter time shall be specified elsewhere in
this Lease or by judicial decree. The terms of this paragraph shall
survive the expiration or earlier termination of this Lease.
Conditional Limitation
16. Pursuant to Lease Rider Article 66, Plaintiff may commence an ejectment action as
follows:
In the event Tenant fails to pay rent on the date due under the Lease
or fails to pay any item of Additional Rent on the date due under the
Lease beyond applicable grace periods on any three (3) occasions
during any twelve (12) month period, in addition to all other
remedies under the Lease, Landlord may elect to terminate this
Lease upon service of a five (5) day notice of termination and upon
service of such notice, the term of this Lease will expire on the date
set forth in such notice as fully and completely as if it were the date
herein definitely fixed for the expiration of the term, and all right,
title and interest of the Tenant hereunder shall thereupon wholly
cease and expire, and the Tenant shall thereupon quit and surrender
the premises to the Landlord, it being the intention of the parties
hereto to create hereby a conditional limitation, and thereupon the
Landlord shall have the right to re-enter the demised premises and
to remove all persons and personal property therefrom, either by
summary dispossess proceedings, or by any suitable action or
proceeding at law or in equity, or by force or otherwise, and to
repossess the demised premises in its former estate as if this Lease
had not been made, and no liability whatsoever shall attach to the
Landlord by reason of the exercise of the right of re-entry,
repossession and removal herein granted and reserved.
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Rent Owed During Holdover
17. Pursuant to Lease Rider Article 63, Tenant holding over after the expiration of a
term, shall be responsible for additional rent as follows:
In the event Tenant shall hold over after the expiration of the Term,
the parties hereby agree that Tenant's occupancy of the demised
premises after the expiration of the Term shall be upon all of the
terms set forth in this Lease except Tenant shall pay as rent for the
holdover period an amount equal to the higher of an amount equal to
(i) one and a half (1-1/2) times the sum of the pro rata Base Rent
payable by Tenant during the last year of the term for the first three
months of any holdover period and two (2) times the sum of the pro
rata Base Rent payable by Tenant during the last year of the Term
there after; and (ii) all monthly installments of additional rent payable
by Tenant pursuant to the terms of this Lease that would have been
billable monthly by Landlord had the Term not expired. The payment
of such holdover rent shall in no way limit Landlord's claims for
consequential damages caused by Tenant's holdover, nor limit any
rights and remedies available to Landlord either at law or in equity.
18. Pursuant to Lease Article 8, Tenant waived its right to trial and to interpose a
counterclaim:
It is mutually agreed by and between Owner and Tenant that the
respective parties hereto shall and they hereby do waive trial by jury
in any action, proceeding or counterclaim brought by either of the
parties hereto against the other (except for personal injury or
property damage) on any matters whatsoever arising out of, or in
any way connected with, this lease, the relationship of Owner and
Tenant, Tenant’s use of or occupancy of the demised premises, and
any emergency statutory or any other statutory remedy. It is further
mutually agreed that in the event Owner commences any proceeding
or action for possession, including a summary proceeding for
possession of the demised premises, Tenant will not interpose any
counterclaim of whatever nature or description in any such
proceeding, including a counterclaim under Article 4, except for
statutory mandatory counterclaims.
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Other Related Lease Provisions
19. Pursuant to the Lease at Article 8, Defendants agreed to hold Plaintiff harmless as
against property loss and damage, as follows, in relevant part:
Owner or its agents shall not be liable for any damage to property of
Tenant or of other entrusted to employees of the building, nor for loss
of, damage to, any property of Tenant by theft or otherwise, nor for
any injury or damage to persons or property resulting from any cause
whatsoever nature, unless caused by or due to the negligence of
Owner, its agents, servants or employees. Owner or its agents will
not be liable for any such damage caused by other tenants or persons
in, upon or about said building, or caused by operation in
construction of any private, public or quasi public work.
20. Pursuant to the Lease Rider at Article 18, Plaintiff is entitled to liquidated damages
as follows:
In case of any such default, re-entry, expiration and/or dispossess by
summary proceedings or otherwise, (a) the rent, and additional rent,
shall become due thereupon and be paid up to the time of such re-
entry, dispossess and/or expiration, (b) Owner may re-let the demised
premises or any part or parts thereof, either in the name of the owner
or otherwise , for a term or terms, which may at Owners option be
less that or exceed the period which would otherwise have constituted
the balance of the term of the lease, and may grant concessions of
free rent or charge a higher rental that in this lease, and/or (c) Tenant
or the legal representatives of Tenant shall also pay Owner, as
liquidated damage, for the failure of the Tenant to observe and
perform said Tenants covenants herein contained, any deficiency
between the rent hereby reserved and/or covenanted to be paid and
the net Amount, if any, of the rents collected on account of the
subsequent lease or leases of the demised premises for each month of
the period which would otherwise have constituted the balance of the
term of this lease. The failure of Owner to re-let the demised premises
or any part or part parts thereof shall not release or affect Tenant’s
liability for damages. In computing such liquidated damages she
shall be added to the said deficiency such expenses as Owner may
incur in connection with re-letting, such as legal expenses, reasonable
attorney’s fee, brokerage, advertising and for the keeping of the
demised premises in good order or preparing the same for re-letting.
Any such liquidated damages shall be paid in monthly installments
by tenant on the rent day specified in this lease. Owner, in putting the
demised premises in good order or preparing the same for re-rental
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may, at Owner’s option, make such alterations, repairs, replacements
and/or decorations in the demised premises as Owner, in Owner’s
sole judgment, considers advisable and necessary for the purpose of
re-letting… in the event of a breach or threatened breach by
Tenant of any of the covenants or provisions hereof, owner shall
have the right of injunction and the right to involve any remedy
allowed at law or in equity as if re-entry, summary proceedings
and other remedies were not herein provided for…
(emphasis added)
21. Pursuant to the Lease Rider at Article 44, Defendant is responsible for rent and
additional rent, without setoff, counterclaim or deductions, as follows:
The obligation of Tenant to pay fixed and additional rent (and all
other charges due under this Lease) shall commence immediately on
the date of the commencement of the term of this Lease. All rent,
additional rent and other charges payable to Landlord under any
provision of this Lease shall be paid to Landlord, or as Landlord may
otherwise designate, in lawful money of the United States which shall
be legal tender for the payment of all debts and dues, public and
private, at the time of payment, at the address of Landlord, or at such
other place as Landlord in writing may designate, without ( except as
may be otherwise herein expressly provided) any setoff,
counterclaim or deduction whatsoever and without any prior demand
therefore.
22. Pursuant to the Lease Rider at Article 64 (b), Defendants’ have indemnified
Plaintiff for any loss, as follows:
Tenant shall indemnify and save Landlord harmless from and
against all liabilities, obligations, damages, fines, penalties,
claims by third parties, costs and expenses, including reasonable
attorneys' fees, paid, suffered or incurred as a result of (i) any
default by Tenant, it employees, agents, contractors or invitees under
this Lease beyond any applicable cure period, (ii) the moving or
installing of any furniture, equipment, materials, fixtures, supplies or
other property (unless caused by the negligent acts of Landlord or its
agents), (iii) by any misconduct or negligent act or omission of
Tenant, its employees, agents, licensees, contractors or invitees, (iv)
any work or thing done by Tenant or any agent, contractor, employee,
licensee or invitee of Tenant in, on or about the Demised Premises,
the licensed areas, or any part thereof, (v) any use, non-use,
possession, occupation, condition, operation, maintenance or
9
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management by Tenant of the Demised Premises, the licensed
areas, or any part thereof, (vi) all fines, suits, proceedings, claims,
demands and actions of any kind or nature whatsoever brought by
anyone whomsoever arising or growing out of or in any wise
connected with the Tenant's use, operation and maintenance of the
Demised Premises and/or t
Preview
FILED: QUEENS COUNTY CLERK 07/28/2022 02:41 PM INDEX NO. 708384/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/28/2022 Exhibit “C” FILED: QUEENS COUNTY CLERK 07/28/2022 08/05/2021 02:41 04:32 PM INDEX NO. 708384/2021 NYSCEF DOC. NO. 33 8 RECEIVED NYSCEF: 07/28/2022 08/05/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS PAKO REALTY CORP. Index No. 708384/2021 Plaintiff, -against- F.T. WEDDING GROUP LTD. AKA DAE DONG NOTICE OF MOTION CATERING HALL, JUNG OK CHA, FOR CHARLES CHA, SUMMARY JUDGMENT Defendants. PLEASE TAKE NOTICE that upon the accompanying Affirmation of Cris L. Gottlieb, Esq., dated August 4, 2021, the Affidavit of Hak Yun Shin, dated August 2, 2021, the Statement of Material Facts dated August 4, 2021, the exhibits annexed thereto and the accompanying memorandum of law in support, and upon all of the papers and proceedings heretofore filed and had herein, Plaintiff PAKO REALTY CORP. (the “Plaintiff”), by their attorneys Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., will move at the Motion Support Part of this Court, at Room 140 of the Courthouse located 88-11 Sutphin Blvd., Jamaica, New York 11435, on the 1st day of October, 2021, at 9:30 a.m. or as soon thereafter as counsel can be heard, for an Order, pursuant to CPLR § 3212: (a) On the First Cause of Action, a judgment against F.T Wedding Group LTD. AKA Dae Dong Catering Hall, joint and several, in the amount of $2,887,235.15; and (b) On the Third Cause of Action, a declaratory judgment against defendants Jung Ok Cha and Charles Cha, joint and several, in the amount of $2,887,235.15; and (c) On the Fourth Cause of Action, a judgment piercing the corporate veil and holding defendants Jung Ok Cha and Charles Cha personally liable, jointly and severally, for the debts of F.T. Wedding Group LTD. Aka Dae Dong Catering Hall in the amount of $2,887,235.15 plus interest from April 1, 2021, together with legal fees, costs, and disbursements; and 1 1 of 2 FILED: QUEENS COUNTY CLERK 07/28/2022 08/05/2021 02:41 04:32 PM INDEX NO. 708384/2021 NYSCEF DOC. NO. 33 8 RECEIVED NYSCEF: 07/28/2022 08/05/2021 (d) Granting Plaintiff a money judgment against Defendants, jointly and severally, in the amount of $2,887,235.15; and (e) On the Fifth Cause of Action a judgment declaring that Plaintiff is entitled to immediate possession of the Premises; the issuance of a Judgment and Order of Ejectment for the Premises removing Defendants there from and putting Plaintiff into immediate possession; and directing the Sheriff to eject Defendants from the Premises. (f) On the Sixth Cause of Action, a judgment against Defendants, joint and several, in an amount to be determined by the Court by which is believed to be no less than $25,000.000, plus interest from April 1, 2021, together with costs, and disbursements (g) Granting Plaintiff such other and further relief as this Court deems just and proper. PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214(b), answering papers, if any, must be served upon the undersigned attorneys for Defendants so that they are received no less than seven (7) days before the return date. Dated: New York, New York August 4, 2021 BORAH, GOLDSTEIN, ALTSCHULER, NAHINS & GOIDEL, P.C. By:________________________________ CRIS L. GOTTLIEB, ESQ. Attorneys for Plaintiff 377 Broadway New York, New York 10013 (212) 431-1300 TO: VIA NYSCEF ONLY The Law Office of John C. Kim, P.C. Attorneys for Defendants 163-10 Northern Blvd., Ste. 201 Flushing, NY 11358 2 2 of 2 FILED: QUEENS COUNTY CLERK 07/28/2022 08/05/2021 02:41 04:32 PM INDEX NO. 708384/2021 NYSCEF DOC. NO. 33 9 RECEIVED NYSCEF: 07/28/2022 08/05/2021 IISUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS PAKO REALTY CORP. Index No.: 708384/2021 Plaintiff, -against- AFFIRMATION IN SUPPORT F.T. WEDDING GROUP LTD. AKA DAE DONG CATERING HALL, JUNG OK CHA, CHARLES CHA, Defendants. CRIS L. GOTTLIEB, an attorney duly admitted to practice law in the State of New York, hereby affirms under the penalty of perjury as follows: 1. I am a Senior Associate of Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., attorneys for the plaintiff PAKO REALTY CORP. (“Plaintiff'”), and am fully familiar with the facts and circumstances set forth herein. 2. This affirmation is submitted in support of Plaintiff’s motion dismissing the Defendants’ affirmative defenses, and awarding Plaintiff summary judgment on its causes of action against Defendants; together with such other, further and different relief as is just and proper (The pleadings are incorporated by reference as the Summons and Complaint NYSCEF Doc. No. 1, the Verified Answer NYSCEF Doc. No. 7). 1 3. This motion should be granted because F.T. WEDDING GROUP LTD. AKA DAE DONG CATERING HALL (the “Tenant”) breached it’s lease with Plaintiff. Inasmuch as Defendants’ have disregarded Tenant’s corporate formality, the corporate veil has been breached by Defendants and individuals are liable for Tenant’s debts to Plaintiff. 1 “NYSCEF Doc. No. __” refers to the document’s number on the electronic filing docket for this action. Pursuant to CPLR 2214(c), the Court is respectfully referred to the papers previously e- filed with the Court which are hereby incorporated herein by reference to their document number on the electronic filing docket rather than being annexed hereto, and re-filed, as exhibits hereto. 1 of 5 FILED: QUEENS COUNTY CLERK 07/28/2022 08/05/2021 02:41 04:32 PM INDEX NO. 708384/2021 NYSCEF DOC. NO. 33 9 RECEIVED NYSCEF: 07/28/2022 08/05/2021 TABLE OF EXHIBITS 4. The following Exhibits, being true and accurate copies of each exhibit are annexed in support of this motion: EXHIBIT DESCRIPTION A Summons and Verified Complaint, NYSCEF Doc. No. 1 B Answer, NYSCEF Doc. No. 7 C Deed D Lease E Guaranty F Ledger G Letter from Office of John Kim H 5-Day Notice to Terminate I Tax Bills 2019-2021 J First Mortgage K Second Mortgage PROCEDURAL BACKGROUND 5. On or about April 12, 2021, Plaintiff commenced this action by way of Summons and Verified Complaint (Exhibit “A,” see NYSCEF Doc. No. 1). 6. On May 24, 2021, Defendants Joined Issue by filing their Verified Answer (Exhibit “B,” see NYSCEF Doc. No. 7). 7. Plaintiff now moves for summary judgment, and there has been no prior motion for the relief sought in this motion. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT AGAINST TENANT 8. The facts upon which Plaintiff is entitled to the relief sought herein are stated in the accompanying Affidavit of Hak Yun Shin (the “Shin Affidavit”) and incorporated herein by reference. 2 2 of 5 FILED: QUEENS COUNTY CLERK 07/28/2022 08/05/2021 02:41 04:32 PM INDEX NO. 708384/2021 NYSCEF DOC. NO. 33 9 RECEIVED NYSCEF: 07/28/2022 08/05/2021 9. As set forth in the Shin Affidavit, Tenant both owes significant rent arrears and has refused to vacate the Premises despite being served with a 5-Day Notice to Terminate. There were no agreements between Plaintiff and Defendants that would forgive or set aside Tenant’s obligations to Plaintiff, nor were there any agreements between Plaintiff and Defendants that would forgive or set aside the individual Co-Owners obligations to Plaintiff. 10. Plaintiff seeks judgment against Defendants as follows: (a) On the First Cause of Action, a judgment against F.T. Wedding Group LTD. AKA Dae Dong Catering Hall, joint and several, in the amount of $2,887,235.15; and (b) On the Third Cause of Action, a declaratory judgment against defendants Jung Ok Cha and Charles Cha, joint and several, in the amount of $2,887,235.15; and (c) On the Fourth Cause of Action, a judgment piercing the corporate veil and holding defendants Jung Ok Cha and Charles Cha personally liable, jointly and severally, for the debts of F.T. Wedding Group LTD. AKA Dae Dong Catering Hall in the amount of $2,887,235.15 plus interest from April 1, 2021, together with legal fees, costs, and disbursements; and (d) Granting Plaintiff a money judgment against Defendants, jointly and severally, in the amount of $2,887,235.15; and (e) On the Fifth Cause of Action a judgment declaring that Plaintiff is entitled to immediate possession of the Premises; the issuance of a Judgment and Order of Ejectment for the Premises removing Defendants there from and putting Plaintiff into immediate possession; and directing the Sheriff to eject Defendants from the Premises. (f) On the Sixth Cause of Action, a judgment against Defendants, joint and several, in an amount to be determined by the Court by which is believed to be no less than $25,000.000, plus interest from April 1, 2021, together with costs, and disbursements (g) Granting Plaintiff such other and further relief as this Court deems just and proper. 3 3 of 5 FILED: QUEENS COUNTY CLERK 07/28/2022 08/05/2021 02:41 04:32 PM INDEX NO. 708384/2021 NYSCEF DOC. NO. 33 9 RECEIVED NYSCEF: 07/28/2022 08/05/2021 11. The points of law upon which Plaintiff is entitled to the relief sought herein are stated in the accompanying Memorandum of Law and is incorporated herein by reference. WHEREFORE, Plaintiff requests an order granting its motion in its entirety. Dated: New York, New York August 4, 2021 _____________________________ CRIS L. GOTTLIEB 4 4 of 5 FILED: QUEENS COUNTY CLERK 07/28/2022 08/05/2021 02:41 04:32 PM INDEX NO. 708384/2021 NYSCEF DOC. NO. 33 9 RECEIVED NYSCEF: 07/28/2022 08/05/2021 ATTORNEY CERTIFICATION PURSUANT TO 202.8-b I, Cris L. Gottlieb, an attorney duly admitted to practice law before the courts of the State of New York, hereby certify that this Affirmation complies with the word count limit set forth in Section 202.8-b of the Supreme Court (22 NYCRR 202.8-b) because it contains 812 words, excluding the parts of the Affirmation exempted by Section 202.8-b. In preparing this certification, I have relied on the word count of the word-processing system used to prepare this Affirmation. Dated: New York, New York August 4, 2021 By:___________________________ Cris L. Gottlieb, Esq 5 of 5 FILED: QUEENS COUNTY CLERK 07/28/2022 08/05/2021 02:41 04:32 PM INDEX NO. 708384/2021 NYSCEF DOC. NO. 33 10 RECEIVED NYSCEF: 07/28/2022 08/05/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS PAKO REALTY CORP. Index No.: 708384/2021 Plaintiff, -against- AFFIDAVIT IN SUPPORT F.T. WEDDING GROUP LTD. AKA DAE DONG CATERING HALL, JUNG OK CHA, CHARLES CHA, Defendants. STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) Hak Yun Shin, being duly sworn, deposes and says: 1. I am the president of plaintiff Pako Realty Corp. (“Plaintiff” or “Landlord”), who is the owner of the building located at 150-24 Northern Boulevard, Queens, New York 11354 (the “Building”) and am fully familiar with the facts and circumstances set forth herein pertaining to this action against defendants F.T. Wedding Group LTD. Aka Dae Dong Catering Hall, (the “Tenant”), Jung Ok Cha and Charles Cha (the “Co-Owners,” collectively, with Tenant, the “Defendants”). 2. This affidavit is submitted in support of Plaintiff’s motion dismissing the Defendants’ affirmative defenses, counterclaims, and awarding Plaintiff summary judgment on its causes of action against Defendants; together with such other, further and different relief as is just and proper. 3. This motion should be granted because Tenant breached its lease with Plaintiff. Inasmuch as the Co-Owners have disregarded F.T. Wedding Group LTD. AKA Dae Dong Catering Hall’s corporate formality, the corporate veil has been pierced, and the Co-Owners must be held liable for Tenant’s debts to Plaintiff, both personally and as Guarantors. 1 of 17 FILED: QUEENS COUNTY CLERK 07/28/2022 08/05/2021 02:41 04:32 PM INDEX NO. 708384/2021 NYSCEF DOC. NO. 33 10 RECEIVED NYSCEF: 07/28/2022 08/05/2021 PROCEDURAL BACKGROUND 4. The procedural history and table of exhibits stated in the annexed attorney affirmation of Cris L. Gottlieb are incorporated herein by reference. FACTUAL BACKGROUND 5. Plaintiff is a corporation organized and existing pursuant to the laws of the State of New York. Plaintiff is the Owner of the Building. (A copy of Plaintiff’s deed, dated July 22, 2015, for the Building is annexed as Exhibit “C”). 6. Tenant is a domestic business corporation organized and existing pursuant to the laws of the State of New York. A. The Lease 7. F.T. Wedding Group LTD, also known as Dae Dong Catering Hall, is the tenant of commercial space described as: the entire second floor, located in the Building (the “Premises”) pursuant to a written lease agreement dated January, 2012, entered into between F.T. Wedding Group LTD, as tenant, and 15024 Emmut Properties LLC, Plaintiff’s predecessor in interest, as landlord, for a term of twenty (20) years, which term commenced on January 1, 2012, and expires on December 31, 2031 (the “Lease,” a copy of which is annexed as Exhibit “D”). 8. Concurrently, or around the same time, with execution of the Lease, Co-Owners individually and collectively executed a Limited Guaranty (the “Guaranty”) wherein they personally obligated themselves for all of Tenant’s Lease obligations (copies of which are annexed as Exhibit “E”). Relevant Lease Provisions Rent Obligations 9. Pursuant to Lease Rider Section 44 (A), Tenant agreed to pay fixed and additional rent (and all other charges due under this Lease) as follows: 2 2 of 17 FILED: QUEENS COUNTY CLERK 07/28/2022 08/05/2021 02:41 04:32 PM INDEX NO. 708384/2021 NYSCEF DOC. NO. 33 10 RECEIVED NYSCEF: 07/28/2022 08/05/2021 The obligation of Tenant to pay fixed and additional rent (and all other charges due under this Lease) shall commence immediately on the date of the commencement of the term of this Lease. All rent, additional rent and other charges payable to Landlord under any provision of this Lease shall be paid to Landlord, or as Landlord may otherwise designate, in lawful money of the United States which shall be legal tender for the payment of all debts and dues, public and private, at the time of payment, at the address of Landlord, or at such other place as Landlord in writing may designate , without (except as may be otherwise herein expressly provided) any setoff, counterclaim or deduction whatsoever and without any prior demand therefore. 10. Pursuant to Lease Rider Section 44 (B), of the Lease, the annual and monthly rent for the term of the Lease is stated as follows: RENT SCHEDULE Year Annual Rent Monthly Rent 1 (2019) $782,199.75 $65,183.31 2 (2020) $805,665.74 $67,138.81 3 (2021) $829,835.71 $69,152.98 Real Estate Tax Escalation 11. Pursuant to Lease Rider Section 46, Tenant agreed to pay 33.33% of increases in real estate taxes escalations, as follows, in relevant part: B. If the Taxes for any Tax Year shall be greater than the Base Tax, Tenant shall pay as Additional Rent for such Tax Year a sum equal to Tenant's Proportionate Share of the amount by which the Taxes for such Tax Year are greater than the Base Tax (which amount is hereinafter called the "Tax Payment"). Should this Lease commence or terminate prior to the expiration of a Tax Year, such Tax Payment shall be prorated to, and shall be payable on, or as and when ascertained after the Commencement Date or the Expiration Date as the case may be. Tenant's obligation to pay such Additional Rent pursuant to this Article 38, shall survive the termination of this Lease. *** [A] 3. "Base Tax" shall mean the Taxes for the City of New York fiscal tax year commencing July 1,2006 and ending June 30, 2007 (the "Base Tax Year"). *** 3 3 of 17 FILED: QUEENS COUNTY CLERK 07/28/2022 08/05/2021 02:41 04:32 PM INDEX NO. 708384/2021 NYSCEF DOC. NO. 33 10 RECEIVED NYSCEF: 07/28/2022 08/05/2021 [A] 4. "Tenant's Proportionate Share" shall mean thirty-three and one- third (33.33%) percent. Late Fees 12. Pursuant to Lease Rider Section 44(G), Tenant agreed to pay late fees, as follows: If Tenant shall fail to pay when due any installment of Base Rent or any payment of additional rent for a period of ten (10) days after such installment or payment shall have become due, Tenant shall pay a late fee of six cents ($.06) per dollar of the amount of such late installment or payment and such late fee shall be deemed additional rent. The provisions of this paragraph (G)are in addition to all other remedies available to Landlord for nonpayment of Base Rent or additional rent. Water Charges 13. Pursuant to Lease Rider Section 54, Tenant agreed to pay water charges, as follows: Unless the demised premises shall already be served by a separate water meter, Landlord shall at its own cost and expense arrange for the installation of a water meter or sub meter for water service to the demised premises and receive such service directly from the public utility company or the City of New York. Tenant shall pay for all water consumed at the demised premises and all attendant sewer charges/rents. Any invoices tendered to Tenant for water and sewer usage shall be due and payable by Tenant within twenty (20) days of the date of the invoice. Failure by Tenant to pay said charges within thirty days may result in the shutoff of the Tenant's water supply by the Landlord. Tenant shall additionally reimburse Landlord, as additional rent, for the cost of any "special" water meter readings had within thirty (30) days of billing therefor. Maintenance Fees 14. Pursuant to Lease Rider Section 74, Tenant owes maintenance fees for ongoing capital improvements, as follows: Notwithstanding anything herein to the contrary, if at any time during the term of this Lease, Landlord expends any sums for alterations or improvements to the Building which are required to 4 4 of 17 FILED: QUEENS COUNTY CLERK 07/28/2022 08/05/2021 02:41 04:32 PM INDEX NO. 708384/2021 NYSCEF DOC. NO. 33 10 RECEIVED NYSCEF: 07/28/2022 08/05/2021 be made pursuant to any law, ordinance or governmental regulation, or any portion of such law, ordinance or governmental regulation specific to Tenant's use or business operations, which becomes effective after the date hereof, Tenant shall pay to Landlord, as additional rent, the same percentage of such cost as is set forth in the provision of this Lease which requires Tenant to pay increases in Real Estate Taxes, within ten (10) days after demand therefor. If, however, the cost of such alteration or improvements is one which is required to be amortized over a period of time pursuant to applicable governmental regulations. Tenant shall pay to Landlord, as additional rent, during each year in which occurs any part of the Lease term, the above-stated percentage of the reasonable annual amortization of the cost of the alteration or improvement made. For the purposes of this Article 74, the cost of any alteration or improvement made shall be deemed to include the cost of preparing any necessary plans and the fees for filing such plans. Attorney Fees and Costs 15. Pursuant to Lease Articles 18 and 19, Lease Rider Section 61, Tenant agreed to reimburse the Landlord for the costs and expenses incurred to enforce the Lease. 18(c) Tenant or the legal representatives of Tenant shall also pay Owner, as liquidated damages, for the failure of Tenant to observe and perform said Tenant's covenants herein contained, and a deficiency between the rent hereby reserved and/or covenanted to be paid and the net amount, if any, of the rents collected on account or the subsequent lease or leases of the demised premises for each month of the period which would otherwise have constituted the balance of the term of this lease. The failure of Owner to re-let tile demised premises or any part or parts thereof shall not release or affect Tenant's liability for damages. In computing such liquidated damages there shall be added to the said deficiency such expenses as Owner may incur in connection with re-letting, such as legal expenses, reasonable attorney's fees… 19. If Tenant shall default in the observance of performance of any term or covenant on Tenant's part to be observed or performed Under, or by virtue of, any of the terms or provisions in any article of this Lease, after notice if required, and upon expiration of any applicable grace period if any, (except in an emergency) then, unless otherwise provided elsewhere in this lease owner may immediately or at any time thereafter, and without notice. perform the obligation of Tenant thereunder, and if owner, in connection therewith or connection with any default by Tenant in the covenant to pay rent 5 5 of 17 FILED: QUEENS COUNTY CLERK 07/28/2022 08/05/2021 02:41 04:32 PM INDEX NO. 708384/2021 NYSCEF DOC. NO. 33 10 RECEIVED NYSCEF: 07/28/2022 08/05/2021 here under makes any expenditures or incurs any obligations for the payment of money including but not limited to reasonable attorney 's fees, in instituting prosecuting or defending any actions or proceeding and prevails in any such action or proceeding, such sums to or obligations incurred with interests and costs shall be deemed to additional rent hereunder and shall be paid by Tenant to Owner… 61. (B) Whenever any default by Tenant causes Landlord to incur attorney's fees and/or any other costs or expenses, Tenant agrees that it shall pay and/or reimburse Landlord, as additional rent hereunder, for such fees, costs or expenses within thirty (30) days after being billed therefore unless a shorter time shall be specified elsewhere in this Lease or by judicial decree. The terms of this paragraph shall survive the expiration or earlier termination of this Lease. Conditional Limitation 16. Pursuant to Lease Rider Article 66, Plaintiff may commence an ejectment action as follows: In the event Tenant fails to pay rent on the date due under the Lease or fails to pay any item of Additional Rent on the date due under the Lease beyond applicable grace periods on any three (3) occasions during any twelve (12) month period, in addition to all other remedies under the Lease, Landlord may elect to terminate this Lease upon service of a five (5) day notice of termination and upon service of such notice, the term of this Lease will expire on the date set forth in such notice as fully and completely as if it were the date herein definitely fixed for the expiration of the term, and all right, title and interest of the Tenant hereunder shall thereupon wholly cease and expire, and the Tenant shall thereupon quit and surrender the premises to the Landlord, it being the intention of the parties hereto to create hereby a conditional limitation, and thereupon the Landlord shall have the right to re-enter the demised premises and to remove all persons and personal property therefrom, either by summary dispossess proceedings, or by any suitable action or proceeding at law or in equity, or by force or otherwise, and to repossess the demised premises in its former estate as if this Lease had not been made, and no liability whatsoever shall attach to the Landlord by reason of the exercise of the right of re-entry, repossession and removal herein granted and reserved. 6 6 of 17 FILED: QUEENS COUNTY CLERK 07/28/2022 08/05/2021 02:41 04:32 PM INDEX NO. 708384/2021 NYSCEF DOC. NO. 33 10 RECEIVED NYSCEF: 07/28/2022 08/05/2021 Rent Owed During Holdover 17. Pursuant to Lease Rider Article 63, Tenant holding over after the expiration of a term, shall be responsible for additional rent as follows: In the event Tenant shall hold over after the expiration of the Term, the parties hereby agree that Tenant's occupancy of the demised premises after the expiration of the Term shall be upon all of the terms set forth in this Lease except Tenant shall pay as rent for the holdover period an amount equal to the higher of an amount equal to (i) one and a half (1-1/2) times the sum of the pro rata Base Rent payable by Tenant during the last year of the term for the first three months of any holdover period and two (2) times the sum of the pro rata Base Rent payable by Tenant during the last year of the Term there after; and (ii) all monthly installments of additional rent payable by Tenant pursuant to the terms of this Lease that would have been billable monthly by Landlord had the Term not expired. The payment of such holdover rent shall in no way limit Landlord's claims for consequential damages caused by Tenant's holdover, nor limit any rights and remedies available to Landlord either at law or in equity. 18. Pursuant to Lease Article 8, Tenant waived its right to trial and to interpose a counterclaim: It is mutually agreed by and between Owner and Tenant that the respective parties hereto shall and they hereby do waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other (except for personal injury or property damage) on any matters whatsoever arising out of, or in any way connected with, this lease, the relationship of Owner and Tenant, Tenant’s use of or occupancy of the demised premises, and any emergency statutory or any other statutory remedy. It is further mutually agreed that in the event Owner commences any proceeding or action for possession, including a summary proceeding for possession of the demised premises, Tenant will not interpose any counterclaim of whatever nature or description in any such proceeding, including a counterclaim under Article 4, except for statutory mandatory counterclaims. 7 7 of 17 FILED: QUEENS COUNTY CLERK 07/28/2022 08/05/2021 02:41 04:32 PM INDEX NO. 708384/2021 NYSCEF DOC. NO. 33 10 RECEIVED NYSCEF: 07/28/2022 08/05/2021 Other Related Lease Provisions 19. Pursuant to the Lease at Article 8, Defendants agreed to hold Plaintiff harmless as against property loss and damage, as follows, in relevant part: Owner or its agents shall not be liable for any damage to property of Tenant or of other entrusted to employees of the building, nor for loss of, damage to, any property of Tenant by theft or otherwise, nor for any injury or damage to persons or property resulting from any cause whatsoever nature, unless caused by or due to the negligence of Owner, its agents, servants or employees. Owner or its agents will not be liable for any such damage caused by other tenants or persons in, upon or about said building, or caused by operation in construction of any private, public or quasi public work. 20. Pursuant to the Lease Rider at Article 18, Plaintiff is entitled to liquidated damages as follows: In case of any such default, re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a) the rent, and additional rent, shall become due thereupon and be paid up to the time of such re- entry, dispossess and/or expiration, (b) Owner may re-let the demised premises or any part or parts thereof, either in the name of the owner or otherwise , for a term or terms, which may at Owners option be less that or exceed the period which would otherwise have constituted the balance of the term of the lease, and may grant concessions of free rent or charge a higher rental that in this lease, and/or (c) Tenant or the legal representatives of Tenant shall also pay Owner, as liquidated damage, for the failure of the Tenant to observe and perform said Tenants covenants herein contained, any deficiency between the rent hereby reserved and/or covenanted to be paid and the net Amount, if any, of the rents collected on account of the subsequent lease or leases of the demised premises for each month of the period which would otherwise have constituted the balance of the term of this lease. The failure of Owner to re-let the demised premises or any part or part parts thereof shall not release or affect Tenant’s liability for damages. In computing such liquidated damages she shall be added to the said deficiency such expenses as Owner may incur in connection with re-letting, such as legal expenses, reasonable attorney’s fee, brokerage, advertising and for the keeping of the demised premises in good order or preparing the same for re-letting. Any such liquidated damages shall be paid in monthly installments by tenant on the rent day specified in this lease. Owner, in putting the demised premises in good order or preparing the same for re-rental 8 8 of 17 FILED: QUEENS COUNTY CLERK 07/28/2022 08/05/2021 02:41 04:32 PM INDEX NO. 708384/2021 NYSCEF DOC. NO. 33 10 RECEIVED NYSCEF: 07/28/2022 08/05/2021 may, at Owner’s option, make such alterations, repairs, replacements and/or decorations in the demised premises as Owner, in Owner’s sole judgment, considers advisable and necessary for the purpose of re-letting… in the event of a breach or threatened breach by Tenant of any of the covenants or provisions hereof, owner shall have the right of injunction and the right to involve any remedy allowed at law or in equity as if re-entry, summary proceedings and other remedies were not herein provided for… (emphasis added) 21. Pursuant to the Lease Rider at Article 44, Defendant is responsible for rent and additional rent, without setoff, counterclaim or deductions, as follows: The obligation of Tenant to pay fixed and additional rent (and all other charges due under this Lease) shall commence immediately on the date of the commencement of the term of this Lease. All rent, additional rent and other charges payable to Landlord under any provision of this Lease shall be paid to Landlord, or as Landlord may otherwise designate, in lawful money of the United States which shall be legal tender for the payment of all debts and dues, public and private, at the time of payment, at the address of Landlord, or at such other place as Landlord in writing may designate, without ( except as may be otherwise herein expressly provided) any setoff, counterclaim or deduction whatsoever and without any prior demand therefore. 22. Pursuant to the Lease Rider at Article 64 (b), Defendants’ have indemnified Plaintiff for any loss, as follows: Tenant shall indemnify and save Landlord harmless from and against all liabilities, obligations, damages, fines, penalties, claims by third parties, costs and expenses, including reasonable attorneys' fees, paid, suffered or incurred as a result of (i) any default by Tenant, it employees, agents, contractors or invitees under this Lease beyond any applicable cure period, (ii) the moving or installing of any furniture, equipment, materials, fixtures, supplies or other property (unless caused by the negligent acts of Landlord or its agents), (iii) by any misconduct or negligent act or omission of Tenant, its employees, agents, licensees, contractors or invitees, (iv) any work or thing done by Tenant or any agent, contractor, employee, licensee or invitee of Tenant in, on or about the Demised Premises, the licensed areas, or any part thereof, (v) any use, non-use, possession, occupation, condition, operation, maintenance or 9 9 of 17 FILED: QUEENS COUNTY CLERK 07/28/2022 08/05/2021 02:41 04:32 PM INDEX NO. 708384/2021 NYSCEF DOC. NO. 33 10 RECEIVED NYSCEF: 07/28/2022 08/05/2021 management by Tenant of the Demised Premises, the licensed areas, or any part thereof, (vi) all fines, suits, proceedings, claims, demands and actions of any kind or nature whatsoever brought by anyone whomsoever arising or growing out of or in any wise connected with the Tenant's use, operation and maintenance of the Demised Premises and/or t