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FILED: NEW YORK COUNTY CLERK 09/21/2022 03:14 PM INDEX NO. 158092/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/21/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
8 SPRUCE (NY) OWNER LLC, Index No. /22
Plaintiff,
-against- SUMMONS
CARLOS EDUARDO GASPERI,
Defendant.
TO THE ABOVE-NAMED DEFENDANT:
YOU ARE HEREBY SUMMONED to answer the complaint in this action and
to serve a copy of your answer upon the plaintiff's undersigned attorneys not later than
20 days after the date of service of this summons, exclusive of the day of service, or within
30 days after service is complete ifthis summons is not personally delivered to you within
New York State. In case of your failure to appear or answer, judgment will be taken
against you by default for the relief demanded in the complaint.
Dated: New York, New York BELKIN BURDEN GOLDMAN, LLP
September 21, 2022 Attorneys for Plaintiff
One Grand Central Place
42nd 16th
60 East Street, FI.
New York, New York 10165
(212) 867-4466
bepstein@bbgIlp.com
By:
Brian Y. pstein, E-sq.
(Rule 130-1.1-a)
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Defendanes Address:
Carlos Eduardo Gasperi
8 Spruce Street, #75H
New York, New York 10038
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
8 SPRUCE (NY) OWNER, LLC Index No. /22
Plaintiff,
-against- VERIFIED COMPLAINT
CARLOS EDUARDO GASPERI,
Defendant.
Plaintiff, 8 SPRUCE (NY) OWNER, LLC, ("Plaintiff"), by their attorneys
Belkin Burden Goldman, LLP, for their complaint against CARLOS EDUARDO GASPERI
("Defendant"), alleges upon information and belief as follows:
THE PARTIES AND BACKGROUND FACTS
1. Plaintiff is the owner of Apartment 75H (the "Apartment") located in
8 Spruce Street, New York, New York 10030 ("Building").
2. Plaintiff is a foreign limited liability company that is authorized to
conduct business in New York.
3. Defendant is the residential tenant of record of the Apartment.
Defendant entered into possession of the Apartment pursuant to a lease with Plaintiff's
predecessor-in-interest dated April 8, 2022 for a term that commenced April 15, 2022 and
is ending on April 14, 2023 ("Lease"). A copy of the Lease is annexed hereto as Exhibit
A.
4. Paragraph 1 of the Lease states, in pertinent part:
Apartment'
You shall use the for living purposes only. The Apartment
may be occupied by the tenant or tenants named above and by the
1 capitalized terms not defined herein shall have the set forth in the Lease.
Any meaning
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immediate family of the tenant or tenants and by occupants as
defined in and only in accordance with Real Property Law §235-F.
5. Paragraph 11 (A) of the Lease states, in pertinent part:
You will obey and comply (1) with all present and future city, state
and federal laws and regulations, including the Rent Stabilization
Code and Law, which affect the Building or the Apartment, and (2)
with all orders and regulations of the Insurance Rating Organizations
which affected the Apartment and Building.
6. Paragraph 12 of the Lease states:
As a tenant in the Building, You will not engage in nor permit family
members, guests or invitees to engage in objectionable conduct.
Objectionable conduct means behavior which makes or will make the
Apartment or the Building less fitto live in for You or other occupants.
It also means anything which interferes with the right of others to
properly and peacefully enjoy their Apartments, or causes conditions
that are dangerous, hazardous, unsanitary and detrimental to other
tenants in the Building. Objectionable conduct by You gives the
Owner the right to end this Lease.
7. Upon information and belief, Defendant has been using the
Apartment as a restaurant in contravention to the Lease and applicable laws.
8. Specifically, but not only, Defendant is in violation of New York City
Health Code 81.05(a) and New York City Administrative Code §28-118.3.1.
9. New York City Health Code 81.05(a) states:
Permit required. Except as specified in this section, no person shall
operate a food service establishment or non-retail food processing
establishment without a permit therefor issued by the Commissioner.
10. New York City Administrative Code §28-118.3.1 states:
No building, open lot or portion thereof hereafter altered so as to
change from one occupancy group to another, or from one zoning
use group to another, either in whole or in part, shall be occupied or
used unless and until the commissioner has issued a certificate of
occupancy certifying that the alteration work for which the permit
was issued has been completed substantially in accordance with
the approved construction documents and the provisions of this
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code and other applicable laws and rules for the new occupancy or
use.
11. On or about June 14, 2022, Plaintiff became aware that Defendant
was using the Apartment as a restaurant under the name Maison Sun ("Restaurant").
12. Upon information and belief, Defendant does not have the permit
required by New York City Health Code 81.05(a) and by operating the Restaurant is
violating the applicable Certificate of Occupancy.
13. The Restaurant is advertised on the internet at
www.maisonsunnyc.com and through its Instagram account at
www.instaqram.com/maisonssun. Reservations can be made at
www.exploretock.com/maisonsun.
14. On or about July 1, 2022, an agent of Plaintiff met with the Defendant
to discuss this matter and the Defendant admitted that he was operating the Restaurant
in the Apartment.
15. On that same date, Defendant was informed in writing that operation
of a restaurant in the Apartment was a violation of applicable law/regulations and
provisions of the Lease.
16. On July 2, 2022, Plaintiff received a response from Defendant's
"guests"
counsel advising Plaintiff that Defendant was allowed to have in the Apartment
at any time.
17. Subsequent to that, Defendant has continued to operate the
Restaurant and host commercial customers.
18. On July 25, 2022, Defendant was served with a Ten (10) Day Notice
to Cure ("Cure Notice") advising the Defendant that his operation of the Restaurant in the
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Apartment was in violation of applicable laws/regulations and provision of the Lease and
he had until August 12, 2022 to cure these violations ("Cure Date").
19. Defendant failed to cure the Lease violations and a Notice of
Termination was served upon the Defendant on August 18, 2022 with an expiration date
of August 26, 2022. Subsequent to that a holdover proceeding was commenced in
Housing Court under Index No. 313391/2022.
20. Defendant has continued to violate the Lease and applicable laws by
operating the Restaurant in the Apartment.
21. Other tenants in the Building have complained about the noise
emanating from the Apartment and the number of non-tenants that are continually moving
throughout the building. Additionally, there has been complaints of smoke and foul odors
emanating from the Apartment and the trash room being left filthy and in disarray after
each of the Restauranis events.
22. On September 15, 2022 there was an incident where customers of
the Defendant were loud and drunk in the common hallway of the Building.
23. Further, upon information and belief, the Defendant has failed to
obtain the proper permits, as required by law, to operate a restaurant.
24. Additionally, the use of the Apartment as a restaurant is in violation
of the Certificate of Occupancy.
25. The continued operation of the Restaurant violates applicable
laws/regulations which is in violation of Paragraph 11(A) of the Lease.
26. Additionally, the continued operation of the Restaurant violates
paragraph 1 of the Lease as Defendant is not using the Apartment for "living purposes
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only"
and violates Paragraph 12 of the Lease as Defendant is engaging in objectionable
conduct and "interfering with the rights of others to properly and peacefully enjoy their
Apartments, or causing conditions that are dangerous, hazardous, unsanitary and
building."
detrimental to other tenants in the
AS AND FOR A FIRST CAUSE OF ACTION
(Declaratory Judament)
27. Plaintiff repeats, repleads and realleges each and every allegation
contained in paragraphs 1 through 26 as ifmore fully set forth herein.
28. Defendant, pursuant to both applicable laws/regulations and Lease
provisions, cannot operate the Restaurant from the Apartment.
29. Plaintiff has notified Defendant of Defendanes requiremeIt to cease
all operations of the Restaurant.
30. Defendant has refused to cease the use of the residential Apartment
for commercial purposes.
31. The continued operation of the Restaurant is causing irreparable
harm to the Building in that other tenants are being deprived of the ability to enjoy their
homes in peace.
32. Plaintiff has no adequate remedy at law.
33. By reason of the foregoing, Plaintiff is entitled to a judgment declaring
that Defendant has failed to comply with Defendanes legal obligations as the occupant of
the Apartment.
34. By reason of the foregoing, Plaintiff is entitled to a judgment declaring
that Defendant must comply with Defendanes legal obligations prospectively by
immediately ceasing all operation of the Restaurant in the Apartment.
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AS AND FOR A SECOND CAUSE OF ACTION
(Preliminary and Permanent Injunction)
35. Plaintiff repeats repleads and realleges the allegations contained in
paragraphs 1 through 34 as ifmore fully set forth herein.
36. Defendant cannot operate the Restaurant out of the Apartment.
37. The ongoing conditions created by Defendant cause irreparable
harm by causing other tenants in the Building to be deprived of the enjoyment of their
homes and said conditions, to wit, operation of the Restaurant out of the Apartment,
continue to violate applicable laws/regulations and other provisions of the Lease.
38. Plaintiff has been, and will continue to be, irreparably harmed ifan
injunction is not granted in that the continued operation of the Restaurant out of the
Apartment continues to affect the other tenants in the building.
39. Plaintiff has no adequate remedy at law.
40. By reason of the foregoing, Plaintiff is entitled to a preliminary and
permanent injunction compelling Defendant to cease operating the Restaurant out of the
Apartment, including, but not limited to, the advertising of Restaurant events at the
Apartment.
AS AND FOR A THIRD CAUSE OF ACTION
(Breach of Lease)
41. Plaintiff repeats repleads and realleges the allegations contained in
paragraphs 1 through 40 as ifmore fully set forth herein.
42. Plaintiff and Defendant, are parties to the Lease.
43. Pursuant to the terms of the Lease, Defendant may only use the
Apartment for residential purposes and must comply with city, state and federal
laws/regulations.
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44. Plaintiff has discussed this violation of the Lease with Defendant,
but Defendant continues to violate the Lease by operating the Restaurant form the
Apartment.
45. Defendant has not complied with its obligations under the Lease by
ceasing operation of the Restaurant.
46. Thus, a justiciable controversy exists as to Defendanes failure to
comply with the Lease.
47. Plaintiff has no adequate remedy at law.
48. By reason of the foregoing, Plaintiff is entitled to a judgment
declaring that Defendant has failed to comply with Defendanes legal obligations under
the Lease as the occupant of the Apartment.
AS AND FOR A FOURTH CAUSE OF ACTION
(Private NuIsance)
49. Plaintiff repeats, repleads and realleges the allegations contained in
paragraphs 1 through 48 as ifmore fully set forth herein.
50. Pursuant to the Lease and applicable law, Defendant cannot operate
a commercial restaurant in the residential Apartment.
51. By continuing to use the residential Apartment as a commercial
restaurant Defendant has breached the Lease, creating an ongoing life,health and safety
risk.
52. The private nuisance caused damage to Plaintiff, in an amount to be
determined at trial.
53. The private nuisance caused damage to Plaintiff, warranting the
relief demanded by Plaintiff.
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54. The Defendant has created a private nuisance at the Building and
Apartment such that the continuous use of the residential Apartment as a commercial
tenants'
restaurant unreasonably interferes with Plaintiff's and other use and enjoyment
to the point where other tenants have threatened to terminate their tenancy in the Building.
55. Courts have stated that the essence of a nuisance claim is the
creation and/or maintenance of a condition on a property that interferes with its use or
enjoyment in relation to an ownership interest in that property. See Copart Industrises,
Inc. v. Consolidated Edison Co., 41 N.Y.2d 564, 568 (1977); Turner v. Coppola, 102
Misc.2d 1043 (1980).
56. The elements to a nuisance claim are as follows: (i) an interference
that is substantial in nature; (ii)intentional in origin; and (iii)unreasonable in character;
(iv) with a person's property right to use and enjoy land; (v) that is caused by another's
(4th
conduct. See Vacca v. Valerino, 16 A.D.3d 1159, 1160 Dep't 2005) quoting Hitchcock
(3rd
v. Boyack, 277 A.D.2d 557, 558 Dep't 2000).
"substantial"
57. An interference that is considered in nature involves the
Courts fact-specific inquiry of the totality of the circumstances, and is based upon a
parties'
balancing of the respective interests in, and competing rights and interests to use
parties'
and enjoy the property. This balancing of the respective interests involve, inter
alia, a consideration and comparison of the social value of the conduct involved in light of
(2nd
the harm to the private property interest. See Iny v. Collom, 13 Misc.3d 75 Dep't
2006).
"intentional"
58. With respect to the element of a nuisance claim, conduct
"intentional"
is considered when the party acts for the purpose of causing the conduct,
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and/or knows that the conduct is resulting or substantially certain to result from its
conduct. In other words, the element of intent is inferred where the offending party knows
that the nuisance conduct is resulting or is likely to result from its conduct. See Copart
Industries, supra.
59. Here, based upon the foregoing the Court should issue an Order
finding that Defendant has engaged in private nuisance by virtue of his conduct in using
the residential Apartment as a commercial restaurant.
AS AND FOR A FIFTH CAUSE OF ACTION
(Attorneys'
Fees)
60. Plaintiff repeats repleads and realleges the allegations contained in
paragraphs 1 through 59 as ifmore fully set forth herein.
61. Pursuant to paragraph 20(4) of the Lease, Defendant is liable to
Plaintiff for any legal fees and disbursements associated with the commencement of an
action against the Defendant because of a default by the Defendant under the Lease.
62. Plaintiff was forced to commence this action based upon Defendants
breach of the Lease by operating the Restaurant out of the Apartment.
63. By reason of the foregoing Plaintiff is entitled to an award of
attorneys'
fees and disbursements in an amount to be determined by this Court, but not
less than $25,000.00.
WHEREFORE, based upon the foregoing, Plaintiff requests that this Court
determine, construe and declare the legal rights and relations of the parties hereto with
respect to Defendant's violations of his obligations under the Lease:
(a) On the first cause of action, granting Plaintiff a
judgment ordering the Defendant to comply with his
legal obligations under the Lease;
(b) On the second cause of action, granting Plaintiff a
preliminary and permanent injunction declaring that
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Defendant is further enjoined and restrained from
operating the Restaurant out of the Apartment; and
(c) On the third cause of action, a judgment declaring that
the Defendant has failed to comply his legal
obligations under the Lease; and
(d) On the fourth cause of action, granting Plaintiff a
judgment against the Defendant based upon private
nuisance in an amount to be determined by the Court;
and
(e) On the fifthcause of action granting Plaintiff a judgment
attorneys'
against the Defendant for fees and
disbursements in an amount to be determined by the
Court, but not less than $25,000.00; and
(f) Granting Plaintiff such other and further relief as this
Court deems just and proper.
Dated: New York, New York BELKIN BURDEN GOLDMAN, LLP
September 21, 2022 Attorneys for Plaintiff
One Grand Central Place
42nd 16th
60 East street, FI.
New York, New York 10165
(212) 867-4466
By:
Ï3rian Y. Epstein
(Rule 130-1.1-a)
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CORPÇRATE VERIFICATON
STA1E OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
CRYSTAL FINARDO, being duly swom, deposes and says:
1. Deponentis the Registered Managing Agentfor 8 SPRUCE (NY)
OWNER LLC, the Plaintiff herein.
2. I have read the foregoing complaint and know that all of the
material allegations set forth therein are true and are within my personal knowledge,
except as to those matters alleged on Information and belief, and as to those matters, I
believe them to be true. The basis for my belief is my firsthand knowledge, and my
review of the books and records maintained by Plaintiff for the subject premises.
C YSTAL ARDO
Swom to before me this
ay of September 2022
DMITRI BELOKON
NoTARY PUBLIC, sTATE OF NEW YORK
BE83 8869
NOTARY PUBLIC a,,
Commission hpiree January 28, 20
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Preview
FILED: NEW YORK COUNTY CLERK 09/21/2022 03:14 PM INDEX NO. 158092/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 8 SPRUCE (NY) OWNER LLC, Index No. /22 Plaintiff, -against- SUMMONS CARLOS EDUARDO GASPERI, Defendant. TO THE ABOVE-NAMED DEFENDANT: YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer upon the plaintiff's undersigned attorneys not later than 20 days after the date of service of this summons, exclusive of the day of service, or within 30 days after service is complete ifthis summons is not personally delivered to you within New York State. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: New York, New York BELKIN BURDEN GOLDMAN, LLP September 21, 2022 Attorneys for Plaintiff One Grand Central Place 42nd 16th 60 East Street, FI. New York, New York 10165 (212) 867-4466 bepstein@bbgIlp.com By: Brian Y. pstein, E-sq. (Rule 130-1.1-a) JPOLAND/14649.0002/3949611.7 1 of 13 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:14 PM INDEX NO. 158092/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/21/2022 Defendanes Address: Carlos Eduardo Gasperi 8 Spruce Street, #75H New York, New York 10038 -2- JPOLAND/14649.OO02/3949611.10 2 of 13 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:14 PM INDEX NO. 158092/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 8 SPRUCE (NY) OWNER, LLC Index No. /22 Plaintiff, -against- VERIFIED COMPLAINT CARLOS EDUARDO GASPERI, Defendant. Plaintiff, 8 SPRUCE (NY) OWNER, LLC, ("Plaintiff"), by their attorneys Belkin Burden Goldman, LLP, for their complaint against CARLOS EDUARDO GASPERI ("Defendant"), alleges upon information and belief as follows: THE PARTIES AND BACKGROUND FACTS 1. Plaintiff is the owner of Apartment 75H (the "Apartment") located in 8 Spruce Street, New York, New York 10030 ("Building"). 2. Plaintiff is a foreign limited liability company that is authorized to conduct business in New York. 3. Defendant is the residential tenant of record of the Apartment. Defendant entered into possession of the Apartment pursuant to a lease with Plaintiff's predecessor-in-interest dated April 8, 2022 for a term that commenced April 15, 2022 and is ending on April 14, 2023 ("Lease"). A copy of the Lease is annexed hereto as Exhibit A. 4. Paragraph 1 of the Lease states, in pertinent part: Apartment' You shall use the for living purposes only. The Apartment may be occupied by the tenant or tenants named above and by the 1 capitalized terms not defined herein shall have the set forth in the Lease. Any meaning -3- JPOLAND/14649.OOO2/3949611.10 3 of 13 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:14 PM INDEX NO. 158092/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/21/2022 immediate family of the tenant or tenants and by occupants as defined in and only in accordance with Real Property Law §235-F. 5. Paragraph 11 (A) of the Lease states, in pertinent part: You will obey and comply (1) with all present and future city, state and federal laws and regulations, including the Rent Stabilization Code and Law, which affect the Building or the Apartment, and (2) with all orders and regulations of the Insurance Rating Organizations which affected the Apartment and Building. 6. Paragraph 12 of the Lease states: As a tenant in the Building, You will not engage in nor permit family members, guests or invitees to engage in objectionable conduct. Objectionable conduct means behavior which makes or will make the Apartment or the Building less fitto live in for You or other occupants. It also means anything which interferes with the right of others to properly and peacefully enjoy their Apartments, or causes conditions that are dangerous, hazardous, unsanitary and detrimental to other tenants in the Building. Objectionable conduct by You gives the Owner the right to end this Lease. 7. Upon information and belief, Defendant has been using the Apartment as a restaurant in contravention to the Lease and applicable laws. 8. Specifically, but not only, Defendant is in violation of New York City Health Code 81.05(a) and New York City Administrative Code §28-118.3.1. 9. New York City Health Code 81.05(a) states: Permit required. Except as specified in this section, no person shall operate a food service establishment or non-retail food processing establishment without a permit therefor issued by the Commissioner. 10. New York City Administrative Code §28-118.3.1 states: No building, open lot or portion thereof hereafter altered so as to change from one occupancy group to another, or from one zoning use group to another, either in whole or in part, shall be occupied or used unless and until the commissioner has issued a certificate of occupancy certifying that the alteration work for which the permit was issued has been completed substantially in accordance with the approved construction documents and the provisions of this -4- JPOLAND/14649.OOO2/3949611.10 4 of 13 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:14 PM INDEX NO. 158092/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/21/2022 code and other applicable laws and rules for the new occupancy or use. 11. On or about June 14, 2022, Plaintiff became aware that Defendant was using the Apartment as a restaurant under the name Maison Sun ("Restaurant"). 12. Upon information and belief, Defendant does not have the permit required by New York City Health Code 81.05(a) and by operating the Restaurant is violating the applicable Certificate of Occupancy. 13. The Restaurant is advertised on the internet at www.maisonsunnyc.com and through its Instagram account at www.instaqram.com/maisonssun. Reservations can be made at www.exploretock.com/maisonsun. 14. On or about July 1, 2022, an agent of Plaintiff met with the Defendant to discuss this matter and the Defendant admitted that he was operating the Restaurant in the Apartment. 15. On that same date, Defendant was informed in writing that operation of a restaurant in the Apartment was a violation of applicable law/regulations and provisions of the Lease. 16. On July 2, 2022, Plaintiff received a response from Defendant's "guests" counsel advising Plaintiff that Defendant was allowed to have in the Apartment at any time. 17. Subsequent to that, Defendant has continued to operate the Restaurant and host commercial customers. 18. On July 25, 2022, Defendant was served with a Ten (10) Day Notice to Cure ("Cure Notice") advising the Defendant that his operation of the Restaurant in the -5- JPOLAND/14649.OOO2/3949611.10 5 of 13 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:14 PM INDEX NO. 158092/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/21/2022 Apartment was in violation of applicable laws/regulations and provision of the Lease and he had until August 12, 2022 to cure these violations ("Cure Date"). 19. Defendant failed to cure the Lease violations and a Notice of Termination was served upon the Defendant on August 18, 2022 with an expiration date of August 26, 2022. Subsequent to that a holdover proceeding was commenced in Housing Court under Index No. 313391/2022. 20. Defendant has continued to violate the Lease and applicable laws by operating the Restaurant in the Apartment. 21. Other tenants in the Building have complained about the noise emanating from the Apartment and the number of non-tenants that are continually moving throughout the building. Additionally, there has been complaints of smoke and foul odors emanating from the Apartment and the trash room being left filthy and in disarray after each of the Restauranis events. 22. On September 15, 2022 there was an incident where customers of the Defendant were loud and drunk in the common hallway of the Building. 23. Further, upon information and belief, the Defendant has failed to obtain the proper permits, as required by law, to operate a restaurant. 24. Additionally, the use of the Apartment as a restaurant is in violation of the Certificate of Occupancy. 25. The continued operation of the Restaurant violates applicable laws/regulations which is in violation of Paragraph 11(A) of the Lease. 26. Additionally, the continued operation of the Restaurant violates paragraph 1 of the Lease as Defendant is not using the Apartment for "living purposes -6- JPOLAND/14649.0002/3949611.10 6 of 13 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:14 PM INDEX NO. 158092/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/21/2022 only" and violates Paragraph 12 of the Lease as Defendant is engaging in objectionable conduct and "interfering with the rights of others to properly and peacefully enjoy their Apartments, or causing conditions that are dangerous, hazardous, unsanitary and building." detrimental to other tenants in the AS AND FOR A FIRST CAUSE OF ACTION (Declaratory Judament) 27. Plaintiff repeats, repleads and realleges each and every allegation contained in paragraphs 1 through 26 as ifmore fully set forth herein. 28. Defendant, pursuant to both applicable laws/regulations and Lease provisions, cannot operate the Restaurant from the Apartment. 29. Plaintiff has notified Defendant of Defendanes requiremeIt to cease all operations of the Restaurant. 30. Defendant has refused to cease the use of the residential Apartment for commercial purposes. 31. The continued operation of the Restaurant is causing irreparable harm to the Building in that other tenants are being deprived of the ability to enjoy their homes in peace. 32. Plaintiff has no adequate remedy at law. 33. By reason of the foregoing, Plaintiff is entitled to a judgment declaring that Defendant has failed to comply with Defendanes legal obligations as the occupant of the Apartment. 34. By reason of the foregoing, Plaintiff is entitled to a judgment declaring that Defendant must comply with Defendanes legal obligations prospectively by immediately ceasing all operation of the Restaurant in the Apartment. -7- JPOLAND/14649.0002/3949611.10 7 of 13 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:14 PM INDEX NO. 158092/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/21/2022 AS AND FOR A SECOND CAUSE OF ACTION (Preliminary and Permanent Injunction) 35. Plaintiff repeats repleads and realleges the allegations contained in paragraphs 1 through 34 as ifmore fully set forth herein. 36. Defendant cannot operate the Restaurant out of the Apartment. 37. The ongoing conditions created by Defendant cause irreparable harm by causing other tenants in the Building to be deprived of the enjoyment of their homes and said conditions, to wit, operation of the Restaurant out of the Apartment, continue to violate applicable laws/regulations and other provisions of the Lease. 38. Plaintiff has been, and will continue to be, irreparably harmed ifan injunction is not granted in that the continued operation of the Restaurant out of the Apartment continues to affect the other tenants in the building. 39. Plaintiff has no adequate remedy at law. 40. By reason of the foregoing, Plaintiff is entitled to a preliminary and permanent injunction compelling Defendant to cease operating the Restaurant out of the Apartment, including, but not limited to, the advertising of Restaurant events at the Apartment. AS AND FOR A THIRD CAUSE OF ACTION (Breach of Lease) 41. Plaintiff repeats repleads and realleges the allegations contained in paragraphs 1 through 40 as ifmore fully set forth herein. 42. Plaintiff and Defendant, are parties to the Lease. 43. Pursuant to the terms of the Lease, Defendant may only use the Apartment for residential purposes and must comply with city, state and federal laws/regulations. -8- JPOLAND/14649.OO02/3949611.10 8 of 13 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:14 PM INDEX NO. 158092/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/21/2022 44. Plaintiff has discussed this violation of the Lease with Defendant, but Defendant continues to violate the Lease by operating the Restaurant form the Apartment. 45. Defendant has not complied with its obligations under the Lease by ceasing operation of the Restaurant. 46. Thus, a justiciable controversy exists as to Defendanes failure to comply with the Lease. 47. Plaintiff has no adequate remedy at law. 48. By reason of the foregoing, Plaintiff is entitled to a judgment declaring that Defendant has failed to comply with Defendanes legal obligations under the Lease as the occupant of the Apartment. AS AND FOR A FOURTH CAUSE OF ACTION (Private NuIsance) 49. Plaintiff repeats, repleads and realleges the allegations contained in paragraphs 1 through 48 as ifmore fully set forth herein. 50. Pursuant to the Lease and applicable law, Defendant cannot operate a commercial restaurant in the residential Apartment. 51. By continuing to use the residential Apartment as a commercial restaurant Defendant has breached the Lease, creating an ongoing life,health and safety risk. 52. The private nuisance caused damage to Plaintiff, in an amount to be determined at trial. 53. The private nuisance caused damage to Plaintiff, warranting the relief demanded by Plaintiff. -9- JPOLAND/14649.0002/3949611.10 9 of 13 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:14 PM INDEX NO. 158092/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/21/2022 54. The Defendant has created a private nuisance at the Building and Apartment such that the continuous use of the residential Apartment as a commercial tenants' restaurant unreasonably interferes with Plaintiff's and other use and enjoyment to the point where other tenants have threatened to terminate their tenancy in the Building. 55. Courts have stated that the essence of a nuisance claim is the creation and/or maintenance of a condition on a property that interferes with its use or enjoyment in relation to an ownership interest in that property. See Copart Industrises, Inc. v. Consolidated Edison Co., 41 N.Y.2d 564, 568 (1977); Turner v. Coppola, 102 Misc.2d 1043 (1980). 56. The elements to a nuisance claim are as follows: (i) an interference that is substantial in nature; (ii)intentional in origin; and (iii)unreasonable in character; (iv) with a person's property right to use and enjoy land; (v) that is caused by another's (4th conduct. See Vacca v. Valerino, 16 A.D.3d 1159, 1160 Dep't 2005) quoting Hitchcock (3rd v. Boyack, 277 A.D.2d 557, 558 Dep't 2000). "substantial" 57. An interference that is considered in nature involves the Courts fact-specific inquiry of the totality of the circumstances, and is based upon a parties' balancing of the respective interests in, and competing rights and interests to use parties' and enjoy the property. This balancing of the respective interests involve, inter alia, a consideration and comparison of the social value of the conduct involved in light of (2nd the harm to the private property interest. See Iny v. Collom, 13 Misc.3d 75 Dep't 2006). "intentional" 58. With respect to the element of a nuisance claim, conduct "intentional" is considered when the party acts for the purpose of causing the conduct, -10- JPOLAND/14649.0002/3949611.10 10 of 13 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:14 PM INDEX NO. 158092/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/21/2022 and/or knows that the conduct is resulting or substantially certain to result from its conduct. In other words, the element of intent is inferred where the offending party knows that the nuisance conduct is resulting or is likely to result from its conduct. See Copart Industries, supra. 59. Here, based upon the foregoing the Court should issue an Order finding that Defendant has engaged in private nuisance by virtue of his conduct in using the residential Apartment as a commercial restaurant. AS AND FOR A FIFTH CAUSE OF ACTION (Attorneys' Fees) 60. Plaintiff repeats repleads and realleges the allegations contained in paragraphs 1 through 59 as ifmore fully set forth herein. 61. Pursuant to paragraph 20(4) of the Lease, Defendant is liable to Plaintiff for any legal fees and disbursements associated with the commencement of an action against the Defendant because of a default by the Defendant under the Lease. 62. Plaintiff was forced to commence this action based upon Defendants breach of the Lease by operating the Restaurant out of the Apartment. 63. By reason of the foregoing Plaintiff is entitled to an award of attorneys' fees and disbursements in an amount to be determined by this Court, but not less than $25,000.00. WHEREFORE, based upon the foregoing, Plaintiff requests that this Court determine, construe and declare the legal rights and relations of the parties hereto with respect to Defendant's violations of his obligations under the Lease: (a) On the first cause of action, granting Plaintiff a judgment ordering the Defendant to comply with his legal obligations under the Lease; (b) On the second cause of action, granting Plaintiff a preliminary and permanent injunction declaring that -11- JPOLAND/14649.0002/3949611.10 11 of 13 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:14 PM INDEX NO. 158092/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/21/2022 Defendant is further enjoined and restrained from operating the Restaurant out of the Apartment; and (c) On the third cause of action, a judgment declaring that the Defendant has failed to comply his legal obligations under the Lease; and (d) On the fourth cause of action, granting Plaintiff a judgment against the Defendant based upon private nuisance in an amount to be determined by the Court; and (e) On the fifthcause of action granting Plaintiff a judgment attorneys' against the Defendant for fees and disbursements in an amount to be determined by the Court, but not less than $25,000.00; and (f) Granting Plaintiff such other and further relief as this Court deems just and proper. Dated: New York, New York BELKIN BURDEN GOLDMAN, LLP September 21, 2022 Attorneys for Plaintiff One Grand Central Place 42nd 16th 60 East street, FI. New York, New York 10165 (212) 867-4466 By: Ï3rian Y. Epstein (Rule 130-1.1-a) -12- JPOLAND/14649.0002/3949611.7 12 of 13 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:14 PM INDEX NO. 158092/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/21/2022 CORPÇRATE VERIFICATON STA1E OF NEW YORK ) : ss.: COUNTY OF NEW YORK ) CRYSTAL FINARDO, being duly swom, deposes and says: 1. Deponentis the Registered Managing Agentfor 8 SPRUCE (NY) OWNER LLC, the Plaintiff herein. 2. I have read the foregoing complaint and know that all of the material allegations set forth therein are true and are within my personal knowledge, except as to those matters alleged on Information and belief, and as to those matters, I believe them to be true. The basis for my belief is my firsthand knowledge, and my review of the books and records maintained by Plaintiff for the subject premises. C YSTAL ARDO Swom to before me this ay of September 2022 DMITRI BELOKON NoTARY PUBLIC, sTATE OF NEW YORK BE83 8869 NOTARY PUBLIC a,, Commission hpiree January 28, 20 -13- JPOLANO/14649,0002/3949611.5 13 of 13