Preview
FILED: QUEENS COUNTY CLERK 10/05/2022 03:39 PM INDEX NO. 720770/2022
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 10/05/2022
EXHIBIT G
FILED: QUEENS COUNTY CLERK 05/25/2021
10/05/2022 12:54
03:39 PM INDEX NO. 711984/2021
720770/2022
NYSCEF DOC. NO. 1
7 RECEIVED NYSCEF: 05/25/2021
10/05/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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J.I.B. REALTY CORORATION Plaintiff designates Queens
County as the place of trial
Plaintiff, The basis of the venue is
Defendants’ Business Address
-against-
SUMMONS
FRANCESCO’S TRATTORIA, LTD., and
FRANK BIONDO Defendants’ Business Address:
70-29 Parsons Boulevard
Flushing, New York 11365
Defendants.
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To the above named Defendant
YOU ARE HEREBY SUMMONED to answer the Complaint in this action and
to serve a copy of your Answer, or, if the Complaint is not served with this summons, to serve a
notice of appearance on the Plaintiff’s attorney within twenty (20) days after the service of this
Summons, exclusive of the day of service (or within thirty (30) days after the service is complete
if this Summons is not personally delivered to you within the State of New York); and 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: Garden City, New York
May 25, 2021
ROSENBERG FORTUNA &
LAITMAN, LLP
By: _____________________________
JOSEPH P. SACCO
Attorneys for Plaintiff
666 Old Country Road, Suite 810
Garden City, New York 11530
(516) 228-6666
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Defendants’ Address:
Francesco=s Trattoria, Ltd.
70-29 Parsons Boulevard
Flushing, New York 11365
Francesco=s Trattoria, Ltd.
c/o Frank Biondo
58-43 70th Street
Middle Village, New York 11379
Frank Biondo
58-43 70th Street
Middle Village, New York 11379
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NYSCEF DOC. NO. 1
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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J.I.B. REALTY CORORATION,
Plaintiff,
COMPLAINT
-against-
FRANCESCO’S TRATTORIA, LTD., and
FRANK BIONDO.,
Defendants.
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J.I.B. Realty Corporation, by its attorneys, Rosenberg Fortuna & Laitman, LLP, as
and for its Complaint against defendants Francesco’s Trattoria, Ltd. and Frank Biondo,
respectfully alleges as follows:
THE PARTIES
1. Plaintiff, J.I.B. Realty Corporation (“Plaintiff”) is a domestic corporation
with a principal place of business in the County of Queens, State of New York.
2. Upon information and belief, Defendant Francesco’s Trattoria, Ltd.
(“FTL”) is a domestic corporation with a principal place of business in the County of Queens,
State of New York, which has been dissolved by Proclamation/Annulment of Authority by the
New York Secretary of State on August 31, 2016.
3. Upon information and belief, Defendant Frank Biondo is an individual who
resides in the County of Queens, State of New York.
FACTUAL BACKGROUND
4. Plaintiff is the owner of the premises located at 70-29 Parson’s Boulevard,
Flushing, New York 11365 (“Premises”).
5. Pursuant to that certain Lease Agreement, dated June 19, 2000, as extended
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FILED: QUEENS COUNTY CLERK 05/25/2021
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NYSCEF DOC. NO. 1
7 RECEIVED NYSCEF: 05/25/2021
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by those certain lease modification and extension agreements dated February 25, 2010 and July
2014 (“Lease”), Plaintiff leased the Premises to FTL.
6. Pursuant to the latest lease modification and extension agreement (July 7,
2014), the Lease expired upon its own terms on June 30, 2020 (“Expiration Date”).
7. Pursuant to Section 21.01 of the Lease, “[t]enant shall deliver up and
surrender to Landlord possession of the Premises upon expiration or earlier termination of the
Term, broom clean, free of debris, in good order, condition and state of repair…”
8. Pursuant to Section 21.02 of the Lease, “[i]f Tenant…remains in possession
of the Premises…after any termination of the Lease, no tenancy or interest shall result therefrom,
but such holding over shall be an unlawful detainer…and Tenant shall upon demand pay to
Landlord, as liquidated damages, a sum equal to all Additional Rent provided for in this Lease
during any period which Tenant shall hold Premises after the Term has expired plus an amount
computed at the rate of treble the Minimum Annual Rent for such period.”
9. Pursuant to Article 4 of the Lease, FTL agreed to render payment of rent
and additional rent in twelve monthly installments pursuant to the terms therein.
10. Pursuant to Section 16.01 of the Lease, and “Event of Default” is defined to
include the failure to render payment of rent, and the failure of the tenant to observe or perform
any of its other covenants, agreement or condition provided in the Lease.
11. Pursuant to Section 16.02 of the Lease, Plaintiff is entitled to bring suit for
the collection rent and any damages, including reasonable attorneys’ fees.
AS AND FOR A FIRST CAUSE OF ACTION
(Breach of Lease As Against FTL)
12. Plaintiff repeats and realleges each and every allegation contained above,
as if more fully set forth herein.
2
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13. Plaintiff has performed Plaintiff’s obligations as set forth in the Lease
14. FTL breached the Lease when it failed to render timely payment of rent,
which such failure continues to date.
15. FTL breached the Lease when it failed to deliver the Premises to Plaintiff
when the Lease expired upon its own terms in accordance with the terms and conditions of the
Lease.
16. As a result of the foregoing breaches of the Lease, Plaintiff has been
damaged in an amount not presently ascertainable, but not less than $180,000.00
AS AND FOR A SECOND CAUSE OF ACTION
(Piercing the Corporate Veil)
17. Plaintiff repeats and realleges each and every allegation contained above as
if more fully set forth herein.
18. The corporate form of FTL shall be disregarded.
19. Biondo exercised complete domination and control of FTL in maintaining
the Lease with Plaintiff and did not treat FTL as a business entity.
20. Biondo used that domination to commit a fraud or wrong against FTL which
has resulted in Plaintiff’s injury.
21. Biondo is a shareholder of FTL
22. Upon information and belief, FTL has failed to observe corporate
formalities in that FTL failed to issue certificates, has failed to hold elections of directors, has
failed to hold meetings of directors, has failed to hold meetings of shareholders, has failed to keep
minutes.
23. Upon information and belief FTL has been dissolved by Proclamation and
Annulment of authority by the Secretary of State on August 31, 2016.
3
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24. Upon information and belief, FTL is inadequately capitalized in that FTL
did not have adequate capital to render payment of rent under the Lease.
25. FTL has used the corporate form to perpetuate a wrong and/or fraud
against Plaintiff and Plaintiff has been damaged as a result thereof.
26. As a result of the foregoing, Plaintiff is entitled to a judgment against
Biondo in an amount not presently ascertainable, but in no event less than $180,000.00.
AS AND FOR A THIRD CAUSE OF ACTION
(Declaratory Judgment)
27. Plaintiff repeats and realleges each and every allegation contained above as
if more fully set forth herein.
28. An actionable and justiciable controversy exists between Plaintiff and FTL
regarding the expiration of the Lease upon its own terms.
29. Notwithstanding the expiration of the Lease upon its own terms on June 30,
2020, FTL failed to deliver the Premises to Plaintiff in accordance with the terms and provisions
of the Lease.
30. Following the foregoing expiration date, FTL is holding over.
31. As result of the foregoing, plaintiff is entitled to a declaratory judgment,
pursuant to CPLR §3001, declaring that the Lease has expired upon its own terms and FTL is
obligated to deliver the Premises to Plaintiff in accordance with the terms and conditions of the
Lease.
WHEREFORE, Plaintiff demands judgment against Defendants as follows:
a. On the FIRST cause of action, against FTL in the amount not
presently ascertainable, but not less than $180,000.00;
4
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b. On the SECOND cause of action, against Biondo in the amount not
presently ascertainable, but not less than $180,000.00;
c. On the THIRD cause of action, against FTL a declaratory judgment,
pursuant to CPLR §3001, declaring that the Lease has expired upon its own terms and FTL is
obligated to deliver the Premises to Plaintiff in accordance with the terms and conditions of the
Lease;
d. On all causes of action, Plaintiff’s reasonable attorneys’ fees, costs,
and disbursements of this action.
Dated: Garden City, New York
May 25, 2021
ROSENBERG FORTUNA &
LAITMAN, LLP
By: _____________________________
JOSEPH P. SACCO
Attorneys for Plaintiff
666 Old Country Road, Suite 810
Garden City, New York 11530
(516) 228-6666
5
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Preview
FILED: QUEENS COUNTY CLERK 10/05/2022 03:39 PM INDEX NO. 720770/2022 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 10/05/2022 EXHIBIT G FILED: QUEENS COUNTY CLERK 05/25/2021 10/05/2022 12:54 03:39 PM INDEX NO. 711984/2021 720770/2022 NYSCEF DOC. NO. 1 7 RECEIVED NYSCEF: 05/25/2021 10/05/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS -----------------------------------------------------------------------X J.I.B. REALTY CORORATION Plaintiff designates Queens County as the place of trial Plaintiff, The basis of the venue is Defendants’ Business Address -against- SUMMONS FRANCESCO’S TRATTORIA, LTD., and FRANK BIONDO Defendants’ Business Address: 70-29 Parsons Boulevard Flushing, New York 11365 Defendants. -----------------------------------------------------------------------X To the above named Defendant YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve a copy of your Answer, or, if the Complaint is not served with this summons, to serve a notice of appearance on the Plaintiff’s attorney within twenty (20) days after the service of this Summons, exclusive of the day of service (or within thirty (30) days after the service is complete if this Summons is not personally delivered to you within the State of New York); and 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: Garden City, New York May 25, 2021 ROSENBERG FORTUNA & LAITMAN, LLP By: _____________________________ JOSEPH P. SACCO Attorneys for Plaintiff 666 Old Country Road, Suite 810 Garden City, New York 11530 (516) 228-6666 1 of 7 FILED: QUEENS COUNTY CLERK 05/25/2021 10/05/2022 12:54 03:39 PM INDEX NO. 711984/2021 720770/2022 NYSCEF DOC. NO. 1 7 RECEIVED NYSCEF: 05/25/2021 10/05/2022 Defendants’ Address: Francesco=s Trattoria, Ltd. 70-29 Parsons Boulevard Flushing, New York 11365 Francesco=s Trattoria, Ltd. c/o Frank Biondo 58-43 70th Street Middle Village, New York 11379 Frank Biondo 58-43 70th Street Middle Village, New York 11379 2 of 7 FILED: QUEENS COUNTY CLERK 05/25/2021 10/05/2022 12:54 03:39 PM INDEX NO. 711984/2021 720770/2022 NYSCEF DOC. NO. 1 7 RECEIVED NYSCEF: 05/25/2021 10/05/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS -----------------------------------------------------------------------X Index No.: J.I.B. REALTY CORORATION, Plaintiff, COMPLAINT -against- FRANCESCO’S TRATTORIA, LTD., and FRANK BIONDO., Defendants. -----------------------------------------------------------------------X J.I.B. Realty Corporation, by its attorneys, Rosenberg Fortuna & Laitman, LLP, as and for its Complaint against defendants Francesco’s Trattoria, Ltd. and Frank Biondo, respectfully alleges as follows: THE PARTIES 1. Plaintiff, J.I.B. Realty Corporation (“Plaintiff”) is a domestic corporation with a principal place of business in the County of Queens, State of New York. 2. Upon information and belief, Defendant Francesco’s Trattoria, Ltd. (“FTL”) is a domestic corporation with a principal place of business in the County of Queens, State of New York, which has been dissolved by Proclamation/Annulment of Authority by the New York Secretary of State on August 31, 2016. 3. Upon information and belief, Defendant Frank Biondo is an individual who resides in the County of Queens, State of New York. FACTUAL BACKGROUND 4. Plaintiff is the owner of the premises located at 70-29 Parson’s Boulevard, Flushing, New York 11365 (“Premises”). 5. Pursuant to that certain Lease Agreement, dated June 19, 2000, as extended 3 of 7 FILED: QUEENS COUNTY CLERK 05/25/2021 10/05/2022 12:54 03:39 PM INDEX NO. 711984/2021 720770/2022 NYSCEF DOC. NO. 1 7 RECEIVED NYSCEF: 05/25/2021 10/05/2022 by those certain lease modification and extension agreements dated February 25, 2010 and July 2014 (“Lease”), Plaintiff leased the Premises to FTL. 6. Pursuant to the latest lease modification and extension agreement (July 7, 2014), the Lease expired upon its own terms on June 30, 2020 (“Expiration Date”). 7. Pursuant to Section 21.01 of the Lease, “[t]enant shall deliver up and surrender to Landlord possession of the Premises upon expiration or earlier termination of the Term, broom clean, free of debris, in good order, condition and state of repair…” 8. Pursuant to Section 21.02 of the Lease, “[i]f Tenant…remains in possession of the Premises…after any termination of the Lease, no tenancy or interest shall result therefrom, but such holding over shall be an unlawful detainer…and Tenant shall upon demand pay to Landlord, as liquidated damages, a sum equal to all Additional Rent provided for in this Lease during any period which Tenant shall hold Premises after the Term has expired plus an amount computed at the rate of treble the Minimum Annual Rent for such period.” 9. Pursuant to Article 4 of the Lease, FTL agreed to render payment of rent and additional rent in twelve monthly installments pursuant to the terms therein. 10. Pursuant to Section 16.01 of the Lease, and “Event of Default” is defined to include the failure to render payment of rent, and the failure of the tenant to observe or perform any of its other covenants, agreement or condition provided in the Lease. 11. Pursuant to Section 16.02 of the Lease, Plaintiff is entitled to bring suit for the collection rent and any damages, including reasonable attorneys’ fees. AS AND FOR A FIRST CAUSE OF ACTION (Breach of Lease As Against FTL) 12. Plaintiff repeats and realleges each and every allegation contained above, as if more fully set forth herein. 2 4 of 7 FILED: QUEENS COUNTY CLERK 05/25/2021 10/05/2022 12:54 03:39 PM INDEX NO. 711984/2021 720770/2022 NYSCEF DOC. NO. 1 7 RECEIVED NYSCEF: 05/25/2021 10/05/2022 13. Plaintiff has performed Plaintiff’s obligations as set forth in the Lease 14. FTL breached the Lease when it failed to render timely payment of rent, which such failure continues to date. 15. FTL breached the Lease when it failed to deliver the Premises to Plaintiff when the Lease expired upon its own terms in accordance with the terms and conditions of the Lease. 16. As a result of the foregoing breaches of the Lease, Plaintiff has been damaged in an amount not presently ascertainable, but not less than $180,000.00 AS AND FOR A SECOND CAUSE OF ACTION (Piercing the Corporate Veil) 17. Plaintiff repeats and realleges each and every allegation contained above as if more fully set forth herein. 18. The corporate form of FTL shall be disregarded. 19. Biondo exercised complete domination and control of FTL in maintaining the Lease with Plaintiff and did not treat FTL as a business entity. 20. Biondo used that domination to commit a fraud or wrong against FTL which has resulted in Plaintiff’s injury. 21. Biondo is a shareholder of FTL 22. Upon information and belief, FTL has failed to observe corporate formalities in that FTL failed to issue certificates, has failed to hold elections of directors, has failed to hold meetings of directors, has failed to hold meetings of shareholders, has failed to keep minutes. 23. Upon information and belief FTL has been dissolved by Proclamation and Annulment of authority by the Secretary of State on August 31, 2016. 3 5 of 7 FILED: QUEENS COUNTY CLERK 05/25/2021 10/05/2022 12:54 03:39 PM INDEX NO. 711984/2021 720770/2022 NYSCEF DOC. NO. 1 7 RECEIVED NYSCEF: 05/25/2021 10/05/2022 24. Upon information and belief, FTL is inadequately capitalized in that FTL did not have adequate capital to render payment of rent under the Lease. 25. FTL has used the corporate form to perpetuate a wrong and/or fraud against Plaintiff and Plaintiff has been damaged as a result thereof. 26. As a result of the foregoing, Plaintiff is entitled to a judgment against Biondo in an amount not presently ascertainable, but in no event less than $180,000.00. AS AND FOR A THIRD CAUSE OF ACTION (Declaratory Judgment) 27. Plaintiff repeats and realleges each and every allegation contained above as if more fully set forth herein. 28. An actionable and justiciable controversy exists between Plaintiff and FTL regarding the expiration of the Lease upon its own terms. 29. Notwithstanding the expiration of the Lease upon its own terms on June 30, 2020, FTL failed to deliver the Premises to Plaintiff in accordance with the terms and provisions of the Lease. 30. Following the foregoing expiration date, FTL is holding over. 31. As result of the foregoing, plaintiff is entitled to a declaratory judgment, pursuant to CPLR §3001, declaring that the Lease has expired upon its own terms and FTL is obligated to deliver the Premises to Plaintiff in accordance with the terms and conditions of the Lease. WHEREFORE, Plaintiff demands judgment against Defendants as follows: a. On the FIRST cause of action, against FTL in the amount not presently ascertainable, but not less than $180,000.00; 4 6 of 7 FILED: QUEENS COUNTY CLERK 05/25/2021 10/05/2022 12:54 03:39 PM INDEX NO. 711984/2021 720770/2022 NYSCEF DOC. NO. 1 7 RECEIVED NYSCEF: 05/25/2021 10/05/2022 b. On the SECOND cause of action, against Biondo in the amount not presently ascertainable, but not less than $180,000.00; c. On the THIRD cause of action, against FTL a declaratory judgment, pursuant to CPLR §3001, declaring that the Lease has expired upon its own terms and FTL is obligated to deliver the Premises to Plaintiff in accordance with the terms and conditions of the Lease; d. On all causes of action, Plaintiff’s reasonable attorneys’ fees, costs, and disbursements of this action. Dated: Garden City, New York May 25, 2021 ROSENBERG FORTUNA & LAITMAN, LLP By: _____________________________ JOSEPH P. SACCO Attorneys for Plaintiff 666 Old Country Road, Suite 810 Garden City, New York 11530 (516) 228-6666 5 7 of 7