Preview
FILED: ORANGE COUNTY CLERK 02/25/2022 10:43 AM INDEX NO. EF000982-2020
NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 02/25/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
x
MIDDLETOWN FLEA MARKET LLC,
Plaintiff, Index No. EF000982-2020
-against-
NOTICE OF APPEAL
MIDDLETOWN PLAZA HOLDINGS LLC,
Defendants.
x
MIDDLETOWN PLAZA HOLDINGS LLC c/o
CONCORD CAPITAL NEW YORK LLC
22 TOKAY LANE
MONSEY, NY 10952
Petitioner (Landlord)
-against-
MIDDLETOWN FLEA MARKET LLC
130-156 DOLSON AVENUE, UNIT 15B
MIDDLETOWN, NY 10940
Respondents (Tenants)
JOHN DOE and JANE DOE
Respondents (Undertenants)
x
PLEASE TAKE NOTICE, that Plaintiff appeals from the Decision and Order of the Suprerñê
Court, Orange County, dated and entered on January 24, 2022, in the Office of the Clerk of that Court.
Dated: South Salem, New York
February 25, 2022 A S OFFICES
Hasapid-
Ann tte G. , Esq.
App late Counse or Plaintiff
Post ice Bo 0. 827
South Salem, New York 10590
(914) 533-3049
Filedin Orange County 02/25/2022 10:43:49 AM $65.00 Bk: 1 of
5139 25 Pg: 1986 Index: # EF000982-2020 Clerk:DK
FILED: ORANGE COUNTY CLERK 02/25/2022 10:43 AM INDEX NO. EF000982-2020
NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 02/25/2022
Supreme Gourt of t11e 9tate of New Worlt
Appellate Binisian: Second iJubicial Bepartment
Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil
[a])
For Court of OriginalInstance
MIDDLETOWN FLEA MARKET LLC,
Plaintiff
Date Notice of Appeal Filed
- against -
M!DDLETOWN PLAZA HOLDINGS LLC, For Appellate Division
Defendants
CivilAction CPLRarticle 78 Proceeding E Appeal O Transferred Proceeding
O CPLR article75 Arbitratioñ Special Proceeding Other Original Proceedings U CPLR Article78
CPLR Article U Executive Law § 298
O Habeas Corpus Proceeding
78
Eminent Domain O CPLR 5704 Review
Labor Law 220 or 220-b
Public Officers Law § 36
Real Pipperty Tax Law § 1278
O Administrative Review O Business Relationships O Commercial O Contracts
O Declaratory Judgment O Domestic Relations O Election Law O Estate Matters
O Family Court O Mortgage Foreclosure O Miscellañeóüs O Prisoner Discipline & Parole
E Real Property O Statutory O Taxation O Torts
(other than foreclosure)
Informational Statement - Civil
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FILED: ORANGE COUNTY CLERK 02/25/2022 10:43 AM INDEX NO. EF000982-2020
NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 02/25/2022
Gmd I
Paper Appea|éd From (Check one only): Ifan appeal has been taken from more than one order or
judgment by the filingof thisnotice of appeal, please
indicate the below information for each such order or
judgment appea|êd from on a separate sheet of paper.
O Amended Decree O Determination M Order O Resettled Order
O Amended Juclgement O Finding O Order & Judgment O Ruling
O Amêñded Order O Interlocutory Decree O Partial Decree O Other (specify)
O Decision O later|0cutory Judgment O Resettled Decree
O Decree O Judgment O Resettled Judgment
Court: Supreme Court County: Orange
Dated: 01/24/2022 Entered: 01/24/2022
Judge (name in SANDRA
full): SCIORTINO Index No.: EF000982-2020
Stage: E Interlocutory O Final O Post-Final Trial: O Yes E No IfYes: O Jury O Non-Jury
Prior Unperfected Appeal and Related Case |ñfGrmatión
Are any appeals arising in the same action or procêêding currently pending in the court? R Yes O No
IfYes, please set forth the Appellate Division Case Number assigned to each such appea!
2021-04414, 2021-07888
Where apprüpriate, indicate whether there isany related action or proceeding now in any court of this or any other
jurisdiction, and ifso, the status of the case:
Commêñced by: O Order to Show Cause O Notice of Petition O Writ of Habeas Corpus | Date Filed:
Statute authorizing commêñcement of proceeding in the Appellate Division:
Court: Choose Court | County: Choose Countv
Judge (name in full): Order of Transfer Date:
Court: Choose Court County Chcase County
Judge (name in full): Dated:
Description: Ifan appeal, briefly describe the paper appealed from. Ifthe appeal is from an order, specify the relief
requested and whether the rñóticñ was granted or denied. Ifan original proceeding commenced inthis court or transferred
pursuant to CPLR 7804(g), brieflydescribe the object of proceeding. Ifan application under CPLR 5704, briefly describe the
nature of the ex parte order to be reviewed.
Order, inter alia, directing Appellant to secure discovery from non-parties.
Informational Staterñênt - Civil
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Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds
for reversal, or modification to be advanced and the specific reliefsought on appeal.
Did the court err in directing Appellant to secure discovery from non-parties?
(;22dhih
Instructions: Fillinthe name of each party to the action or proceeding, one name per line. Ifthisform is tobe filed for an
appeal, indicate the status of the party inthe court of original instance and his,her, or itsstatus in thiscourt, ifany. If this
form isto be filed for a procêêding commenced in this court, fillin only the party's name and his, her, or itsstatus in this
court.
No. Party Name Original Status Appellate Division Status
1 MIDDLETOWN FLEA MARKET LLC Plaintiff |Appellant
2 MIDDLETOWN PLAZA HOLDINGS LLC Defendant Respondent
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
Infemiaticñal Statement - Civil
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I Instructions: Fillinthe names of the attorneys or firms for the respective parties. Ifthis form is tobe filedwith the
notice of petition or order to show cause by which a special proceeding is tobe commenced inthe Appellate Division,
only the name of the attorney for the péiii;ûñêr need be provided. In the event that a litigantrepresents herself or
Se"
himself, the box marked "Pro must be checked and the appropriate information for that litigant must be supplied
in the spaces provided.
Attorney/Firm Name: Annette Pocopidic Law
/ Hasapidis Offices
Address: 111 Brook St
City:Scarsdale State: NY | Zip:10583 | Te|êph0ñê No: 914-533-3049
E-mail Address: com
Attorney Type: E Retained O Assigned O GOverñrñent O Pro Se O Pro Hac Vice
Attorney/Firm Name: Meryl Lisa Wenig,Esq./ WENIG SALTIEL LLP
Address:26 Courtst Ste 1200
City:Drooklyn | State: New York | Zip:11242 Te|éphcGe No; 718-797-5700
E-mail Address: == -cuttomeys.com
Attorney Type: M Retained O Assigned O GOverñrñent O Pro Se O Pro Hac Vice
Attorney/Firm Name:
Address:
City: | State: Zip: Telephone No:
E-mail Address:
Attorney Type: M Retained O Assigned O Goverñmêñt O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above): 4.5
Attorney/Firm Name:
Address:
City: | State: | Zip: | Te|éph0ñê No:
E-mail Address:
Attorney Type: O Retained O Assigned O GOverñrñent O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: | State: | Zip: Te|êph0ñê No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
1Î31t e es e s a u n m a e o
Attorney/Firm Name:
Address:
City: State: | Zip: Te|éph é No
E-mail Address:
Attorney Type: O Retained O Assigned O GOvêrñrñent O Pro Se O Pro Hac Vice
Informational Statement - Civil
5 of 25
INDEX
INDEX NO.
NO. EF000982-2020
EF000982-2020
FILED:
FILED: ORANGE
ORANGE COUNTY
COUNTY CLERK
CLERK 02/25/2022
02/04/2022 10:43
02 :29 AM
PM
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 244
246 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 02/04/2022
02/25/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
--------------------------------------------------------x
MIDDLETOWN FLEA MARKET LLC, Index #EF000982/2020
Plaintiff, Action #1
NOTICE OF ENTRY
-against-
MlDDLETOWN PLAZA HOLDINGS LLC
Defendant
---------------------------------------------------------x
MIDDLETOWN PLAZA HOLDINGS LLC,
Plaintiff Action #2
-against-
MIDDLETOWN FLEA MARKET LLC
Defendant
________ -------------------- ---------------------X
PLEASE TAKE NOTICE that the within isa true and correct copy of the Decision
and Order of the Supreme Court (Hon. Sandra B. Sciortino, J.S.C.) dated and entered in
this Court on 24, 2022. A copy of the Decision/Order isattached hereto as
January
Exhibit "A".
Dated: February 4, 2022
Brooklyn, New York
Yours etc.,
Wenig Saltiel LLP
Attorneys for Defendant
By: Charles Loveless
26 Court Street, Suite 1200
Brooklyn, New York 11242
Ph-(718) 797-5700
Email: cloveless@Ltattorneys.com
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INDEX NO.
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EF000982-26
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02/04/2022 10:43
02:29 AM
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EXHIBIT A
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To commence thestatutorytime
forappeals as ofright(CPLR 5513 [a]),you
are advised to serve a copy of this order,
with noticeof entry,upon allparties.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
X
MIDDLETOWN FLEA MARKET LLC, DECISION AND ORDER
Plaintift INDEX NO.: EF000982-2020
Motion Date: 11/5/2021
-against- Sequence Nos: 8 & 9
MIDDLETOWN PLAZA HOLDINGS LLC, ACTION 1
Defendants.
- -------- --------- X
MIDDLETOWN PLAZA HOLDINGS LLC c/o
CONCORD CAPITAL NEW YORK LLC
22 TOKAY LANE
MONSEY, NY 10952
Petitioner (Landlord)
ACTION 2
-against-
MIDDLETOWN FLEA MARKET LLC
130-156 DOLSON AVENUE, UNIT 15B
MIDDLETOWN, NY 19940
Respondents (Tenants)
JOHN DOE and JANE DOE
Respondents (Undertenants)
----------- --X
SCIORTINO, J.
The fullõwing papers numbered 1 to 61 were read on the motion (Sequence #8) of
defendant Middletown Plaza Holdings (MP) to strike the plaintiff's complaint and for other
sanctions for willful and ceñt:ñ1ssious discovery failures; and upon defendant's motion
(Sequence #9) to invalida the Hardship Declaration submitted by plaintiff Middletown Flea
Market LLC (MF):
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FILED: ORANGE
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INDEX
INDEX NO.
NO. EF000982-2020
EF000982-2020
NYSCEÈ'
NYSCEF DOC.
DOC. NO.
NO. 244
246 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 02/04/2022
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INDEX No. EF000982-2020
NYSCEF DOC. No. 242 RECEIVED IR5CEF: 01/24/2022
PAPERS
MERED
Notice of Motion (Seq. 8)/Affirmation 1-24
(Wenig)/Affidavit (Jaccbov)/Exhibits A - W
Affidavit in Opposition (Alva)/Exhibits 1 - 25-47
21/Plaintiff's Memorandum of Law
Affidavit in Reply (Harris)/Affirmation in 48-49
Reply (Wenig)
Notice of Motion (Seq. 9)/Affirmation (Wenig)/ 50-54
Affidavit (Jacobov)/Exhibits A-B
Affirmation in Opposition (Bloom)/Affidavit 55 - 60
(Alva)/Exhibits 1 - 4
Affinnation in Reply (Wenig) 61
Background aml-Procedural History
These actions arise from a commercial lease between plaintiff Middletown Flea Market
LLC and defendant Middletown Plaza Holdings LLC for the premises located at
(MF) (MP)
130-156 Dolson Avenue, Middictown, New York. The lease encompasses commercial space of
approximately 26,000 square feet designated for use as "retail space for sales of multiple
goods"
vendor's (sic) on the first floor of the structure. The lease was signed by both parties on
June 12, 2019. Itis not disputed that the intended use was flea-market space.
On Jañüary 14, 2020, MP commanned a summeynon-payment proceeding pwsuant to
RPAPL 71l(2) in the City Court of Middletown. MP alleged that, in addition to failure to pay
rent,MF violated the following terms of the Lease:
1. Provided plans for the premises 5 months after the lease signing date, and made
alterations to the premises that were not approved by MP;
2. Used a neighboring tenant's electricity and gas, and failed to open accounts and make
necessary connections with Orange & Rockland utilitycompany;
3. Posted signs on the premises without MP's approval;
4. Performed work in the premises exceeding $5,000.00 without MP's consent;
5. Failed to provide any insurance certificates naming MP as an additional insured;
6. Subleased the premises without notifying or receiving prior written consent of MP;
7. Failed to provide copies of the subleases or certificates of insurance for each sub-tenant,
naming MP as an additional insured.
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On January 30, 2020, MP emailed MF a 5-Day Notice to Cure outfining the alleged
breaches and the claimed non-paymcñt of rent.
On February 4, 2020, MF commenced a declaratory judgment action (Action 1).
Sinm1taneously, an Order to Show Cause was filed seeking aYc::ow.;ione Injunction staying MP
from teminating the lease and tolling the time to cure any defaults outlined int the 5-Day Notice
the pendency of thisaction. By Decision and Order dated June 22, 2020 the Court denied
during
the application, finding several grounds on which plaintiff failed to show that the alleged
breaches could or would be cured.
Thereafter, an amended complaint and amended answer were served and filed. The
parties attempted, unseccessfully, to mediate their differences. Plaintiff asserting breaches by
defendant, and claiming that the lease had not yet commenced, withheld rent until directed by
this Court to pay, without prejudice, in October 2020. At a conference held on November 10,
2020, counsel for def=d=t MP advised that itintended to serve a new Notice of Intent to
Terminate the Lease, based on alleged breaches. By Stipulation dated November 13, 2020, the
parties agreed,inter alia, that, in response to the new Notice of Intent, plaintiffcould file and
serve a Second Amended Complaint responding to the allegations in the new Notice and a new
application for aYellowstone injunction.
MP emailed itsNotice of Intent to plaintiff on or around November 12, 2020. It alleged
several breaches of the lease: plaiñtiff's failure to obtain and mai=±in "special form property
insurance;"
failure to obtain general liability insurance complying with the lease requizements;
retention of contractors without proof of required insurance; allowing electrical work to be
performed without proper permits; sublefting the premises without MP's written consent; and
engaging in alterations costing in excess of $5,000 without permits or the approval of MP.
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Plaintiff's Second Amended Complaint was filed on November 20, 2020. (Exhibit E)
Among the relief sought by the Second Amended Complaint is a declaration that the lease had
not yet commenced. At the same time, plaintiff filed a new applicatica for a Yälawstene
injunction. That applicati0ñ was denied by Decision and Order dated May 17, 2021. (FxhibitQ)
Def'eadant's Answer and Conn+±rclaims were filed on December 18, 2020. (Exhibit F)
A Reply was filedon December 29, 2020. (Exhibit G)
In the interim this Court held multiple conferences with the parties. On November 30,
2020, the Court directed that discevery demands be served by December 14, 2020, with
responses due from plaintiff by January 11, 2021. On December 31, 2020, defendant filed five
different discavery demands, seeking documents, insurance information, "photographs
expert informati= and authorization for access to social sites used
(wit:·.ennes)", networking by
plaintiff. (Exhibits H-
L)
At a status conference on January 26, 2021, MF's deadline for response to the demands
was extended to February 19, 2021. On February 11, 2021, MF served its responses to MP's
demands: In response to the Demand for Expert Information, plaintiff identified Michael
Lennon, and stated he would testify "consistent with his Affidavit previcüsly s±-""di--1mder
29."
NYSCEF Doc. No. (Exhibit N) In response to the Demand for Documents, plaintiff
submitted a general response (Fxhibit O) to plaintiff's Requests 2-7 directing attention to
attached PDFs of emails and other documents but not specifically identifying to which demand
each document was responsive. Plaintiff objected to defendant's demand for rent ledgers,
asserting that such information was non-public and therefore privileged. In response to a request
for insurance policies, plaintiff directed the defendant to the response to insurance demand,
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On March 2, 2021, the Court directed plaintiff to serve the names and rental infoññation,
iñcludiñg payments, for all of the occupants of the premises. Plaintiff was further directed to
provide the names of workers who did renovations at the space, and a more particularized
response to the demand for expert information, to enable defendant to ascertain whether Mr.
Lennon was a fact or an expert witness. On March 9, 2021, plaintiff provided a response,
including two work orders and two checks from Alva Edison Project. (Exhibit P)
Discovery was the subject of a Court conference on July 1, 2021. In response to
defendant's complain+s about the inadequacy of discovery responses, the Court directed
defendant to serve plaintiff with a notice of the claimed deficiencies, to which p!ei±i#f was
23"3.1
directed to fully respond by July Defendant sent plaintiff a letter (Exhibit R) dated July
11, 2021, detailing the claimed insufficiencies. By emailed letterdated July 23, 2021 (Exhibit S),
plaintiffresponded. Most responses claimed that plainti+Y was not in possession of deemnents,
and directed defciidant to subpoena them from third parties, some of whom were indisputably
controlled by plaintiff'sprincipal, John Alva. Other responses pointed to the disecvery responses
sent in February 2021 (see above). One further document, a failed fire inspection notice, was
provided. In apparent response to the demand for information about the occupants of the flea
market, tenant provided a single page, handwritten response (Exhibit T). The document was
COVID."
headed with the statement "only 2 vendors paid anything during Itwent on to include
three columns ofnames, some showing "Pd", some "Disc", some "Tardy".
The same day, the Court held a further discovery conference, at which deadant again
claimed the responses were insufficient, and further noted that the use and occupancy fee
'The Court also directed defendant to submit a proposed written order mirroring itsdeficiency
notice. The Court has no record that such a proposed order was received.
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Preview
FILED: ORANGE COUNTY CLERK 02/25/2022 10:43 AM INDEX NO. EF000982-2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 02/25/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE x MIDDLETOWN FLEA MARKET LLC, Plaintiff, Index No. EF000982-2020 -against- NOTICE OF APPEAL MIDDLETOWN PLAZA HOLDINGS LLC, Defendants. x MIDDLETOWN PLAZA HOLDINGS LLC c/o CONCORD CAPITAL NEW YORK LLC 22 TOKAY LANE MONSEY, NY 10952 Petitioner (Landlord) -against- MIDDLETOWN FLEA MARKET LLC 130-156 DOLSON AVENUE, UNIT 15B MIDDLETOWN, NY 10940 Respondents (Tenants) JOHN DOE and JANE DOE Respondents (Undertenants) x PLEASE TAKE NOTICE, that Plaintiff appeals from the Decision and Order of the Suprerñê Court, Orange County, dated and entered on January 24, 2022, in the Office of the Clerk of that Court. Dated: South Salem, New York February 25, 2022 A S OFFICES Hasapid- Ann tte G. , Esq. App late Counse or Plaintiff Post ice Bo 0. 827 South Salem, New York 10590 (914) 533-3049 Filedin Orange County 02/25/2022 10:43:49 AM $65.00 Bk: 1 of 5139 25 Pg: 1986 Index: # EF000982-2020 Clerk:DK FILED: ORANGE COUNTY CLERK 02/25/2022 10:43 AM INDEX NO. EF000982-2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 02/25/2022 Supreme Gourt of t11e 9tate of New Worlt Appellate Binisian: Second iJubicial Bepartment Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil [a]) For Court of OriginalInstance MIDDLETOWN FLEA MARKET LLC, Plaintiff Date Notice of Appeal Filed - against - M!DDLETOWN PLAZA HOLDINGS LLC, For Appellate Division Defendants CivilAction CPLRarticle 78 Proceeding E Appeal O Transferred Proceeding O CPLR article75 Arbitratioñ Special Proceeding Other Original Proceedings U CPLR Article78 CPLR Article U Executive Law § 298 O Habeas Corpus Proceeding 78 Eminent Domain O CPLR 5704 Review Labor Law 220 or 220-b Public Officers Law § 36 Real Pipperty Tax Law § 1278 O Administrative Review O Business Relationships O Commercial O Contracts O Declaratory Judgment O Domestic Relations O Election Law O Estate Matters O Family Court O Mortgage Foreclosure O Miscellañeóüs O Prisoner Discipline & Parole E Real Property O Statutory O Taxation O Torts (other than foreclosure) Informational Statement - Civil 2 of 25 FILED: ORANGE COUNTY CLERK 02/25/2022 10:43 AM INDEX NO. EF000982-2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 02/25/2022 Gmd I Paper Appea|éd From (Check one only): Ifan appeal has been taken from more than one order or judgment by the filingof thisnotice of appeal, please indicate the below information for each such order or judgment appea|êd from on a separate sheet of paper. O Amended Decree O Determination M Order O Resettled Order O Amended Juclgement O Finding O Order & Judgment O Ruling O Amêñded Order O Interlocutory Decree O Partial Decree O Other (specify) O Decision O later|0cutory Judgment O Resettled Decree O Decree O Judgment O Resettled Judgment Court: Supreme Court County: Orange Dated: 01/24/2022 Entered: 01/24/2022 Judge (name in SANDRA full): SCIORTINO Index No.: EF000982-2020 Stage: E Interlocutory O Final O Post-Final Trial: O Yes E No IfYes: O Jury O Non-Jury Prior Unperfected Appeal and Related Case |ñfGrmatión Are any appeals arising in the same action or procêêding currently pending in the court? R Yes O No IfYes, please set forth the Appellate Division Case Number assigned to each such appea! 2021-04414, 2021-07888 Where apprüpriate, indicate whether there isany related action or proceeding now in any court of this or any other jurisdiction, and ifso, the status of the case: Commêñced by: O Order to Show Cause O Notice of Petition O Writ of Habeas Corpus | Date Filed: Statute authorizing commêñcement of proceeding in the Appellate Division: Court: Choose Court | County: Choose Countv Judge (name in full): Order of Transfer Date: Court: Choose Court County Chcase County Judge (name in full): Dated: Description: Ifan appeal, briefly describe the paper appealed from. Ifthe appeal is from an order, specify the relief requested and whether the rñóticñ was granted or denied. Ifan original proceeding commenced inthis court or transferred pursuant to CPLR 7804(g), brieflydescribe the object of proceeding. Ifan application under CPLR 5704, briefly describe the nature of the ex parte order to be reviewed. Order, inter alia, directing Appellant to secure discovery from non-parties. Informational Staterñênt - Civil 3 of 25 FILED: ORANGE COUNTY CLERK 02/25/2022 10:43 AM INDEX NO. EF000982-2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 02/25/2022 Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds for reversal, or modification to be advanced and the specific reliefsought on appeal. Did the court err in directing Appellant to secure discovery from non-parties? (;22dhih Instructions: Fillinthe name of each party to the action or proceeding, one name per line. Ifthisform is tobe filed for an appeal, indicate the status of the party inthe court of original instance and his,her, or itsstatus in thiscourt, ifany. If this form isto be filed for a procêêding commenced in this court, fillin only the party's name and his, her, or itsstatus in this court. No. Party Name Original Status Appellate Division Status 1 MIDDLETOWN FLEA MARKET LLC Plaintiff |Appellant 2 MIDDLETOWN PLAZA HOLDINGS LLC Defendant Respondent 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Infemiaticñal Statement - Civil 4 of 25 FILED: ORANGE COUNTY CLERK 02/25/2022 10:43 AM INDEX NO. EF000982-2020 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 02/25/2022 I Instructions: Fillinthe names of the attorneys or firms for the respective parties. Ifthis form is tobe filedwith the notice of petition or order to show cause by which a special proceeding is tobe commenced inthe Appellate Division, only the name of the attorney for the péiii;ûñêr need be provided. In the event that a litigantrepresents herself or Se" himself, the box marked "Pro must be checked and the appropriate information for that litigant must be supplied in the spaces provided. Attorney/Firm Name: Annette Pocopidic Law / Hasapidis Offices Address: 111 Brook St City:Scarsdale State: NY | Zip:10583 | Te|êph0ñê No: 914-533-3049 E-mail Address: com Attorney Type: E Retained O Assigned O GOverñrñent O Pro Se O Pro Hac Vice Attorney/Firm Name: Meryl Lisa Wenig,Esq./ WENIG SALTIEL LLP Address:26 Courtst Ste 1200 City:Drooklyn | State: New York | Zip:11242 Te|éphcGe No; 718-797-5700 E-mail Address: == -cuttomeys.com Attorney Type: M Retained O Assigned O GOverñrñent O Pro Se O Pro Hac Vice Attorney/Firm Name: Address: City: | State: Zip: Telephone No: E-mail Address: Attorney Type: M Retained O Assigned O Goverñmêñt O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): 4.5 Attorney/Firm Name: Address: City: | State: | Zip: | Te|éph0ñê No: E-mail Address: Attorney Type: O Retained O Assigned O GOverñrñent O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: | State: | Zip: Te|êph0ñê No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice 1Î31t e es e s a u n m a e o Attorney/Firm Name: Address: City: State: | Zip: Te|éph é No E-mail Address: Attorney Type: O Retained O Assigned O GOvêrñrñent O Pro Se O Pro Hac Vice Informational Statement - Civil 5 of 25 INDEX INDEX NO. NO. EF000982-2020 EF000982-2020 FILED: FILED: ORANGE ORANGE COUNTY COUNTY CLERK CLERK 02/25/2022 02/04/2022 10:43 02 :29 AM PM NYSCEF NYSCEF DOC. DOC. NO. NO. 244 246 RECEIVED RECEIVED NYSCEF: NYSCEF: 02/04/2022 02/25/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE --------------------------------------------------------x MIDDLETOWN FLEA MARKET LLC, Index #EF000982/2020 Plaintiff, Action #1 NOTICE OF ENTRY -against- MlDDLETOWN PLAZA HOLDINGS LLC Defendant ---------------------------------------------------------x MIDDLETOWN PLAZA HOLDINGS LLC, Plaintiff Action #2 -against- MIDDLETOWN FLEA MARKET LLC Defendant ________ -------------------- ---------------------X PLEASE TAKE NOTICE that the within isa true and correct copy of the Decision and Order of the Supreme Court (Hon. Sandra B. Sciortino, J.S.C.) dated and entered in this Court on 24, 2022. A copy of the Decision/Order isattached hereto as January Exhibit "A". Dated: February 4, 2022 Brooklyn, New York Yours etc., Wenig Saltiel LLP Attorneys for Defendant By: Charles Loveless 26 Court Street, Suite 1200 Brooklyn, New York 11242 Ph-(718) 797-5700 Email: cloveless@Ltattorneys.com 1 6 of of 25 19 INDEX INDEX NO. NO. EF000982-20200 EF000982-26 FILED: IFILED: ORANGE ORANGE COUNTY COUN1'Y CLERK CLERK 02/25/2022 02/04/2022 10:43 02:29 AM PM NYSCEF NYSCEF DOC. DOC. NO. NO. 244 246 RECEIVED RECEIVED NYSCEF: NYSCEF: 02/04/2022 02/25/2022 EXHIBIT A 2 7 of of 25 19 INDEX INDEX NO. NO. 000982- 2 02 0 EF000982-2020 EF FILED: F ILED: ORANGE ORANGE COUNTY COUNTY CLERK CLERK 02/25/2022 02/04/2022 10:43 02:29 AM PM NYSCEÈ' NYSCEF DOC. DOC . NO.. NO 244 246 RE E V RECEIVED D NYSCEF: S : 02/25/2022 90 /O / 022 iü-5CEF DOC. NO. 242 RECEIVED NYSCEF: 01/24/2022 To commence thestatutorytime forappeals as ofright(CPLR 5513 [a]),you are advised to serve a copy of this order, with noticeof entry,upon allparties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE X MIDDLETOWN FLEA MARKET LLC, DECISION AND ORDER Plaintift INDEX NO.: EF000982-2020 Motion Date: 11/5/2021 -against- Sequence Nos: 8 & 9 MIDDLETOWN PLAZA HOLDINGS LLC, ACTION 1 Defendants. - -------- --------- X MIDDLETOWN PLAZA HOLDINGS LLC c/o CONCORD CAPITAL NEW YORK LLC 22 TOKAY LANE MONSEY, NY 10952 Petitioner (Landlord) ACTION 2 -against- MIDDLETOWN FLEA MARKET LLC 130-156 DOLSON AVENUE, UNIT 15B MIDDLETOWN, NY 19940 Respondents (Tenants) JOHN DOE and JANE DOE Respondents (Undertenants) ----------- --X SCIORTINO, J. The fullõwing papers numbered 1 to 61 were read on the motion (Sequence #8) of defendant Middletown Plaza Holdings (MP) to strike the plaintiff's complaint and for other sanctions for willful and ceñt:ñ1ssious discovery failures; and upon defendant's motion (Sequence #9) to invalida the Hardship Declaration submitted by plaintiff Middletown Flea Market LLC (MF): 1 1 of 17 8 3 of of 25 19 FILED: FILED: ORANGE ORANGE COUNTY COUNTY CLERK CLERK 02/25/2022 02/04/2022 10:43 02:29 AM PM| INDEX INDEX NO. NO. EF000982-2020 EF000982-2020 NYSCEÈ' NYSCEF DOC. DOC. NO. NO. 244 246 RECEIVED RECEIVED NYSCEF: NYSCEF: 02/04/2022 02/25/2022 INDEX No. EF000982-2020 NYSCEF DOC. No. 242 RECEIVED IR5CEF: 01/24/2022 PAPERS MERED Notice of Motion (Seq. 8)/Affirmation 1-24 (Wenig)/Affidavit (Jaccbov)/Exhibits A - W Affidavit in Opposition (Alva)/Exhibits 1 - 25-47 21/Plaintiff's Memorandum of Law Affidavit in Reply (Harris)/Affirmation in 48-49 Reply (Wenig) Notice of Motion (Seq. 9)/Affirmation (Wenig)/ 50-54 Affidavit (Jacobov)/Exhibits A-B Affirmation in Opposition (Bloom)/Affidavit 55 - 60 (Alva)/Exhibits 1 - 4 Affinnation in Reply (Wenig) 61 Background aml-Procedural History These actions arise from a commercial lease between plaintiff Middletown Flea Market LLC and defendant Middletown Plaza Holdings LLC for the premises located at (MF) (MP) 130-156 Dolson Avenue, Middictown, New York. The lease encompasses commercial space of approximately 26,000 square feet designated for use as "retail space for sales of multiple goods" vendor's (sic) on the first floor of the structure. The lease was signed by both parties on June 12, 2019. Itis not disputed that the intended use was flea-market space. On Jañüary 14, 2020, MP commanned a summeynon-payment proceeding pwsuant to RPAPL 71l(2) in the City Court of Middletown. MP alleged that, in addition to failure to pay rent,MF violated the following terms of the Lease: 1. Provided plans for the premises 5 months after the lease signing date, and made alterations to the premises that were not approved by MP; 2. Used a neighboring tenant's electricity and gas, and failed to open accounts and make necessary connections with Orange & Rockland utilitycompany; 3. Posted signs on the premises without MP's approval; 4. Performed work in the premises exceeding $5,000.00 without MP's consent; 5. Failed to provide any insurance certificates naming MP as an additional insured; 6. Subleased the premises without notifying or receiving prior written consent of MP; 7. Failed to provide copies of the subleases or certificates of insurance for each sub-tenant, naming MP as an additional insured. 2 2 of 17 94 of of 25 19 FILED: IFILED: ORANGE ORANGE COUNTY COUNTY CLERK CLERK 02/25/2022 02/04/2022 10:43 02:29 AM PM INDEX INDEX NO. NO. EF000982-2020 EF000982-2020 NYSCEF NYSCÈF DOC. DOC. NO. NO. 246 244 RECEIVED RECEIVED NYSCEF: NYSCEF: 02/25/2022 02/04/2022 INDEX NO. EFO00982-2020 NYSCEF DOC. NO. 242 RECEIVED NYSCEF: 01/24/2022 On January 30, 2020, MP emailed MF a 5-Day Notice to Cure outfining the alleged breaches and the claimed non-paymcñt of rent. On February 4, 2020, MF commenced a declaratory judgment action (Action 1). Sinm1taneously, an Order to Show Cause was filed seeking aYc::ow.;ione Injunction staying MP from teminating the lease and tolling the time to cure any defaults outlined int the 5-Day Notice the pendency of thisaction. By Decision and Order dated June 22, 2020 the Court denied during the application, finding several grounds on which plaintiff failed to show that the alleged breaches could or would be cured. Thereafter, an amended complaint and amended answer were served and filed. The parties attempted, unseccessfully, to mediate their differences. Plaintiff asserting breaches by defendant, and claiming that the lease had not yet commenced, withheld rent until directed by this Court to pay, without prejudice, in October 2020. At a conference held on November 10, 2020, counsel for def=d=t MP advised that itintended to serve a new Notice of Intent to Terminate the Lease, based on alleged breaches. By Stipulation dated November 13, 2020, the parties agreed,inter alia, that, in response to the new Notice of Intent, plaintiffcould file and serve a Second Amended Complaint responding to the allegations in the new Notice and a new application for aYellowstone injunction. MP emailed itsNotice of Intent to plaintiff on or around November 12, 2020. It alleged several breaches of the lease: plaiñtiff's failure to obtain and mai=±in "special form property insurance;" failure to obtain general liability insurance complying with the lease requizements; retention of contractors without proof of required insurance; allowing electrical work to be performed without proper permits; sublefting the premises without MP's written consent; and engaging in alterations costing in excess of $5,000 without permits or the approval of MP. 3 3 of 17 10 5 ofof 25 19 FILED: FILED: ORANGE ORANGE COUNTY COUNTY CLERK CLERK 02/25/2022 02/04/2022 10:43 02:29 AM PM INDEX INDEX NO. NO. EF000982-2020 EF000982-2020 NYSCEÈ' NYSCEF DOC. DOC. NO. NO. 244 246 RECEIVED RECEIVED NYSCEF: NYSCEF: 4/2022 02/25/2022 02/0 INDEX NO. EFOOO982-2020 NYSCEF DOC. NO. 242 RECEIVED NYSCEF: 01/24/2022 Plaintiff's Second Amended Complaint was filed on November 20, 2020. (Exhibit E) Among the relief sought by the Second Amended Complaint is a declaration that the lease had not yet commenced. At the same time, plaintiff filed a new applicatica for a Yälawstene injunction. That applicati0ñ was denied by Decision and Order dated May 17, 2021. (FxhibitQ) Def'eadant's Answer and Conn+±rclaims were filed on December 18, 2020. (Exhibit F) A Reply was filedon December 29, 2020. (Exhibit G) In the interim this Court held multiple conferences with the parties. On November 30, 2020, the Court directed that discevery demands be served by December 14, 2020, with responses due from plaintiff by January 11, 2021. On December 31, 2020, defendant filed five different discavery demands, seeking documents, insurance information, "photographs expert informati= and authorization for access to social sites used (wit:·.ennes)", networking by plaintiff. (Exhibits H- L) At a status conference on January 26, 2021, MF's deadline for response to the demands was extended to February 19, 2021. On February 11, 2021, MF served its responses to MP's demands: In response to the Demand for Expert Information, plaintiff identified Michael Lennon, and stated he would testify "consistent with his Affidavit previcüsly s±-""di--1mder 29." NYSCEF Doc. No. (Exhibit N) In response to the Demand for Documents, plaintiff submitted a general response (Fxhibit O) to plaintiff's Requests 2-7 directing attention to attached PDFs of emails and other documents but not specifically identifying to which demand each document was responsive. Plaintiff objected to defendant's demand for rent ledgers, asserting that such information was non-public and therefore privileged. In response to a request for insurance policies, plaintiff directed the defendant to the response to insurance demand, 4 4 of 17 11 6 ofof 19 25 INDEX INDEX NO. NO. 000982- 2 02 0 EF000982-2020 EF FILED: FILED: ORANGE ORANGE COUNTY COUNTY CLERK CLERK 02/25/2022 02/04/2022 10:43 02:29 AM PM NYSCEF NYSCEF DOC. DOC . NO.. NO 244 246 RE RECEIVED Y NYSCEF: 02/25/2022 / 022 NYSCEF DOC. NO. 242 RECEIVED NYSCEF: 01/24/2022 On March 2, 2021, the Court directed plaintiff to serve the names and rental infoññation, iñcludiñg payments, for all of the occupants of the premises. Plaintiff was further directed to provide the names of workers who did renovations at the space, and a more particularized response to the demand for expert information, to enable defendant to ascertain whether Mr. Lennon was a fact or an expert witness. On March 9, 2021, plaintiff provided a response, including two work orders and two checks from Alva Edison Project. (Exhibit P) Discovery was the subject of a Court conference on July 1, 2021. In response to defendant's complain+s about the inadequacy of discovery responses, the Court directed defendant to serve plaintiff with a notice of the claimed deficiencies, to which p!ei±i#f was 23"3.1 directed to fully respond by July Defendant sent plaintiff a letter (Exhibit R) dated July 11, 2021, detailing the claimed insufficiencies. By emailed letterdated July 23, 2021 (Exhibit S), plaintiffresponded. Most responses claimed that plainti+Y was not in possession of deemnents, and directed defciidant to subpoena them from third parties, some of whom were indisputably controlled by plaintiff'sprincipal, John Alva. Other responses pointed to the disecvery responses sent in February 2021 (see above). One further document, a failed fire inspection notice, was provided. In apparent response to the demand for information about the occupants of the flea market, tenant provided a single page, handwritten response (Exhibit T). The document was COVID." headed with the statement "only 2 vendors paid anything during Itwent on to include three columns ofnames, some showing "Pd", some "Disc", some "Tardy". The same day, the Court held a further discovery conference, at which deadant again claimed the responses were insufficient, and further noted that the use and occupancy fee 'The Court also directed defendant to submit a proposed written order mirroring itsdeficiency notice. The Court has no record that such a proposed order was received. 5 5 of 17 7 12 ofof 19