Answer: K.Y.W. Enterprise Trust v. Les 106 Riv, Llc

On January 01, 2017 a Answer was filed involving a dispute between K.Y.W. Enterprise Trust, and Les 106 Riv, Llc, for Commercial - Contract in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 08/01/2017 03:46 PM INDEX NO. 653071/2017
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/01/2017

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
K.Y.W ENTERPRISE TRUST,
Index No.: 653071/2017
Plaintiff,
VERIFIED ANSWER
-against- WITH COUNTERCLAIMS

LES 106 RIV, LLC,

Defendant.
X

Defendant LES 106 RIV, LLC ("Defendant"), by its attorneys, Ingram Yuzek Gainen

Carroll & Bertolotti, LLP, as and for their Verified Answer to the Complaint (the "Complaint")

of Plaintiff K.Y.W. Enterprise Trust ("Plaintiff'), respectfully alleges as follows:

1. Defendant denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 1 of the Complaint.

2. Defendant denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 2 of the Complaint.

3. Defendant admits the allegations contained in paragraph 3 of the Complaint.

4. Defendant refers the Court to the lease agreement (the "Lease") for a full

understanding and interpretation of the terms, meanings and obligations set forth therein;

Defendant denies the balance of the allegation, if any, contained in paragaph 4 of the

Complaint 1 .

5. Defendant refers the Court to the lease agreement (the "Lease") for a full

understanding and interpretation of the terms, meanings and obligations set forth therein;

Defendant denies the balance of the allegation, if any, contained in paragraph 5 of the Complaint.

IAlthough not defined as such in the Complaint, Defendant's responses herein are premised upon
"Tenant" being defined as "Jose Rodriguez".

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6. Defendant denies that amendment referred to in paragraph 6 of the Complaint is

an amendment to the Lease; Defendant denies the balance of the allegations, if any, contained in

paragraph 6 of the Complaint.

7. Defendant denies that amendment referred to in paragraph 7 of the Complaint is

an amendment to the Lease; Defendant denies the balance of the allegations, if any, contained in

paragraph 7 of the Complaint.

8. Defendant denies that amendment referred to in paragraph 8 of the Complaint is

an amendment to the Lease; Defendant denies the balance of the allegations, if any, contained in

paragraph 8 of the Complaint.

9. Defendant denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 9 of the Complaint.

10. Defendant denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 10 of the Complaint.

11. Defendant denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 11 of the Complaint.

12. Defendant denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 12 of the Complaint.

13. Defendant denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 13 of the Complaint.

14. Defendant denies that amendment referred to in paragraph 14 of the Complaint is

an amendment to the Lease; Defendant denies the balance of the allegations, if any, contained in

paragraph 14 of the Complaint.

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15. Defendant denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 15 of the Complaint.

16. Defendant denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 16 of the Complaint.

17. Defendant denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 17 of the Complaint.

18. Defendant denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 18 of the Complaint.

19. Defendant denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 19 of the Complaint.

20. Defendant admits that Plaintiff signed an amendment of Lease on or about

December 4, 2014; Defendant denies knowledge and information sufficient to form a belief as to

the allegations contained in paragraph 20 of the Complaint.

21. Defendant refers the Court to the December 4, 2014 Lease amendment for a full

understanding and interpretation of the terms, meanings and obligations set forth therein;

Defendant denies the balance of the allegations, if any, contained in paragraph 21 of the

Complaint.

22. Defendant refers the Court to the rider referred to in this paragraph for a full

understanding and interpretation of the terms, meanings and obligations set forth therein;

Defendant denies the balance of the allegations, if any, contained in paragraph 22 of the

Complaint.

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23. Defendant admits that the Lease was assigned to it on or about December 4, 2014;

Defendant denies the balance of the allegations, if any, contained in paragraph 23 of the

Complaint.

24. Defendant denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 24 of the Complaint.

25. Defendant admits that Jose Rodriguez is not a part of Defendant; Defendant

denies the balance of the allegations, if any, contained in paragraph 25 of the Complaint.

26. Defendant admits the allegations contained in paragraph 26 of the Complaint.

27. Defendant denies the allegations contained in paragaph 27 of the Complaint.

28. Defendant admits the allegations contained in paragraph 28 of the Complaint.

29. Defendant denies knowledge and information sufficient to form a belief as to the

allegations against Jose Rodriguez; Defendant denies the balance of the allegations contained in

paragraph 29 of the Complaint.

30. Defendant denies knowledge and information sufficient to form a belief as to the

allegations against Jose Rodriguez; Defendant denies the balance of the allegations contained in

paragraph 30 of the Complaint.

31. Defendant denies knowledge and information sufficient to form a belief as to the

allegations against Jose Rodriguez; Defendant denies the balance of the allegations contained in

paragraph 31 of the Complaint.

32. Defendant denies knowledge and information sufficient to form a belief as to the

allegations against Jose Rodriguez; Defendant denies the balance of the allegations contained in

paragraph 32 of the Complaint.

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33. Defendant denies knowledge and information sufficient to form a belief as to the

allegations against Jose Rodriguez; Defendant denies the balance of the allegations contained in

paragraph 33 of the Complaint.

34. Defendant refers the Court to the document referred to in this paragraph for a full

understanding and interpretation of the terms, meanings and obligations set forth therein;

Defendant denies the balance of the allegations, if any, contained in paragraph 34 of the

Complaint.

35. Defendant denies the allegations contained in paragraph 35 of the Complaint.

36. Defendant denies the allegations contained in paragraph 36 of the Complaint.

37. Defendant denies the allegations contained in paragraph 37 of the Complaint.

38. Defendant admits that it seeks to be restored to possession of the Premises;

Defendant denies the balance of the allegations, if any, contained in paragraph 38 of the

Complaint.

39. Defendant admits that Jose Rodriguez is not a part of Defendant LES 106 RIV,

LLC; Defendant denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 39 of the Complaint.

40. Defendant repeats and realleges each and every response set forth hereinabove as

if more fully set forth herein.

41. Defendant denies the allegations contained in paragraph 41 of the Complaint.

42. Defendant denies the allegations contained in paragraph 42 of the Complaint.

43. Defendant denies the allegations contained in paragraph 43 of the Complaint.

44. Defendant denies the allegations contained in paragraph 44 of the Complaint.

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45. Defendant repeats and realleges each and every response set forth hereinabove as

if more fully set forth herein.

46. Defendant denies the allegations contained in paragraph 46 of the Complaint.

47. Defendant denies the allegations contained in paragraph 47 of the Complaint.

48. Defendant denies the allegations contained in paragaph 48 of the Complaint.

49. Defendant denies the allegations contained in paragraph 49 of the Complaint.

50. Defendant denies the allegations contained in paragraph 50 of the Complaint.

51. Defendant denies the allegations contained in paragyaph 51 of the Complaint.

52. Defendant denies knowledge and information sufficient to form a belief as to the

allegation contained in paragraph 52 of the Complaint.

53. Defendant denies knowledge and information sufficient to form a belief as to the

allegation contained in paragraph 53 of the Complaint.

54. Defendant denies knowledge and information sufficient to form a belief as to the

allegation contained in paragyaph 54 of the Complaint.

55. Defendant denies that amendment referred to in paragraph 55 of the Complaint is

an amendment to the Lease; Defendant denies the balance of the allegations, if any, contained in

paragraph 55 of the Complaint.

56. Defendant denies knowledge and information sufficient to form a belief as to the

allegation contained in paragraph 56 of the Complaint.

57. Defendant denies knowledge and information sufficient to form a belief as to the

allegation contained in paragraph 57 of the Complaint.

58. Defendant denies knowledge and information sufficient to form a belief as to the

allegation contained in paragraph 58 of the Complaint.

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59. Defendant denies knowledge and information sufficient to form a belief as to the

allegation contained in paragraph 59 of the Complaint.

60. Defendant denies knowledge and information sufficient to form a belief as to the

allegation contained in paragraph 60 of the Complaint.

61. Defendant denies knowledge and information sufficient to form a belief as to the

allegation contained in paragraph 61 of the Complaint.

62. Defendant denies the allegations contained in paragraph 62 of the Complaint.

63. Defendant denies the allegations contained in paragraph 63 of the Complaint.

64. Defendant denies the allegations contained in paragraph 64 of the Complaint.

65. Defendant denies knowledge and information sufficient to form a belief as to the

allegation contained in paragraph 65 of the Complaint.

66. Defendant denies knowledge and information sufficient to form a belief as to the

allegation contained in paragraph 66 of the Complaint.

67. Defendant denies knowledge and information sufficient to foun a belief as to the

allegation contained in paragraph 67 of the Complaint.

68. Defendant repeats and realleges each and every response set forth hereinabove as

if more fully set forth herein.

69. Defendant denies the allegations contained in paragraph 69 of the Complaint.

70. Defendant denies the allegations contained in paragraph 70 of the Complaint.

71. Defendant denies the allegations contained in paragraph 71 of the Complaint.

72. Defendant denies the allegations contained in paragraph 72 of the Complaint.

73. Defendant denies the allegations contained in paragraph 73 of the Complaint.

74. Defendant denies the allegations contained in paragraph 74 of the Complaint.

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75. Defendant denies the allegations contained in paragraph 75 of the Complaint.

76. Defendant denies the allegations contained in paragraph 76 of the Complaint.

77. Defendant denies the allegations contained in paragaph 77 of the Complaint.

78. Defendant repeats and realleges each and every response set forth hereinabove as

if more fully set forth herein.

79. Defendant repeats and realleges each and every response set forth hereinabove as

if more fully set forth herein.

80. Defendant denies the allegations contained in paragraph 80 of the Complaint.

81. Defendant denies the allegations contained in paragraph 81 of the Complaint.

82. Defendant denies the allegations contained in paragraph 82 of the Complaint.

83. Defendant denies the allegations contained in paragraph 83 of the Complaint.

84. Defendant denies the allegations contained in paragraph 84 of the Complaint.

85. Defendant denies the allegations contained in paragraph 85 of the Complaint.

86. Defendant denies the allegations contained in paragraph 86 of the Complaint.

87. Defendant denies the allegations contained in paragraph 87 of the Complaint.

88. Defendant repeats and realleges each and every response set forth hereinabove as

if more fully set forth herein.

89. Defendant repeats and realleges each and every response set forth hereinabove as

if more fully set forth herein.

90. Defendant denies the allegations contained in paragraph 90 of the Complaint.

91. Defendant denies the allegations contained in paragaph 91 of the Complaint.

92. Defendant denies the allegations contained in paragraph 92 of the Complaint.

93. Defendant denies the allegations contained in paragraph 93 of the Complaint.

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94. Defendant denies the allegations contained in paragraph 94 of the Complaint.

95. Defendant repeats and realleges each and every response set forth hereinabove as

if more fully set forth herein.

96. Defendant denies the allegations contained in paragraph 96 of the Complaint.

97. Defendant denies the allegation contained in paragraph 97 of the Complaint.

98. Defendant denies the allegations contained in paragyaph 98 of the Complaint.

99. Defendant denies the allegations contained in paragaph 99 of the Complaint.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE

100. Plaintiff fails to state a cause of action upon which relief may be granted.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

101. Plaintiff is not entitled to any recovery under the doctrine of unclean hands, and

as such the Complaint should be dismissed.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE

102. Plaintiff s claims are barred by the doctrine of equitable estoppel.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE

103. Plaintiff s claims are barred by the doctrine of waiver.

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE

104. Plaintiff s claims are barred by the doctrine of laches.

AND AS FOR A SIXTH AFFIRMATIVE DEFENSE

105. Plaintiff has breached the doctrine of good faith and fair dealing.

AS FOR A SEVENTH AFFIRMATIVE DEFENSE

106. Some or all of Plaintiff s claims are barred by the Statute of Frauds.

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AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE

107. Plaintiff s damages, if any, are attributable to Plaintiff's own culpable conduct.

AS AND FOR A NINTH AFFIRMATIVE DEFENSE

108. Plaintiff s breaches of the relevant lease agreements with Defendant excuses any

performance by Defendant pursuant to those agreements.

AS AND FOR A TENTH AFFIRMATIVE DEFENSE

109. Any damages allegedly incurred by the Plaintiff were the result of its own actions,

errors, or omissions, and were not caused, whether in whole or in part, by the alleged actions or

omissions of Defendant.

AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE

110. Plaintiff s causes of action are barred by failure to perform and/or comply with

condition precedent.

FACTS RELEVANT TO ALL COUNTERCLAIMS

111. Defendant is an active, domestic limited liability company formed under the laws

of the State of New York, with its principal place of business located at 15 Bay 29 th Street, 2nd

Floor, Brooklyn, New York 11214.

112. Plaintiff is the landlord of the building located at 106 Rivington Street, New

York, New York 10002 (the "Building").

113. Defendant is the tenant of the 1 st Story, Basement Floor and Cellar Floor in the

Building (the "Premises") pursuant to a written Agreement of Lease, made as of September 12,

2011, by and between K.Y.W. Enterprise Corp., as owner, and Jose 0. Rodriguez, as tenant, for

a 20-year term with a 5-year option to renew, commencing September 12, 2011 (the "2011

Lease").

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114. By written Amendment, dated December 4, 2014, (the "Amendment" or

collectively with the 2011 Lease, the "Lease") by and between Plaintiff, as successor-in-interest

to K.Y.W. Enterprise Corp., Jose 0. Rodriguez and Defendant, Jose 0. Rodriguez assigned all of

his right, title and interest in and to the Lease to Defendant, which assignment was consented to

by Plaintiff .

115. The Amendment also extended the term of the 2011 Lease so that the term of the

Lease would be for a period of 25 years, terminating on November 30, 2034, with an additional

option available to Tenant for five (5) additional years.

116. Pursuant to the terms of the Lease, no rent is to become due until Defendant

obtains an approved liquor license for the Premises and can operate for business as a restaurant.

In addition, the Lease acknowledged that Defendant already expended $65,000.00 which entitled

Defendant to a rental credit for 10 months.

117. In or about February 2015, Defendant commenced renovations, alterations and

construction in the Premises so it could operate its business. Specifically, Defendant expended

approximately $168,000.00 to contract Cityscape Contract, as well as an additional $40,000.00

to hire an architect and build a facade to the building.

118. Thereafter, in or about May 2015, when renovations and construction in the

Premises were near completion, and after Defendant spent over $200,000.00 in renovating the

Premises, there was a fire in the Building that substantially damaged and injured the Premises,

rendering the Premises untenantable.

119. Prior to the fire, Defendant was actively doing renovations to the Premises. In

fact, Plaintiff acknowledges Defendant's work in the Complaint. Conveniently, however,

Plaintiff fails to mention anywhere in the Complaint the fact that a fire that took place in the

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building.

120. Pursuant to the Lease, Plaintiff (as owner) was responsible to repair any portion of

the Premises that was partially damaged or rendered unusable by fire. In addition, the violations

on the third floor of the Building concerned a separate rental unit to which Defendant had no

connection or expectation to perform repairs.

121. Pursuant to paragraph 17 of the Lease, any default concerning arrears or lack of

payment requires the Landlord to send notice. Defendant never received any rent demand or

notice from Plaintiff concerning monies allegedly owed.

122. Nevertheless, Defendant continued to attempt to perform construction in the

Premises. In June 2015 (one month after the fire), Defendant brought in a new contractor to

assess the damage from the fire. The contractor boarded up the windows due to fire damage and

installed a new lock.

123. Together with the contractor, Defendant returned periodically to check on the

Premises. In September 2015, Defendant and the contractor returned to the Premises to

determine whether, and for what price, the property could be restored to a blank slate. At that

time, Defendant noticed a new lock on the door and replaced it with his own.

124. From November 2015 through June 2016, Defendant brought several investors

and/or contractors to the Premises to potentially partner with and/or to discuss construction and

renovations of the building. Defendant was informed, however, by the Fire Department and/or

Department of Buildings that construction on the building could not begin because there were

open violations on the Building that had not been corrected since the fire. Therefore, no permits

could issue until those violations were removed.

125. During this time, Defendant exchanged numerous emails with both Plaintiff

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and/or Plaintiff s counsel wherein Defendant requested to ascertain whether any outstanding

arrears existed, and if so, to resolve any alleged outstanding arrears. Defendant also expressly

stated that it has not abandoned the Premises.

126. In June 2016, Defendant reached an agreement with a contractor to renovate the

Premises. Defendant again, however, was informed by the Fire Department and/or Department of

Buildings that construction could not begin because Plaintiff still had not removed the open

violations on the building.

127. In addition, aside from Defendant's efforts to continue to renovate the Premises,

following the fire in May 2015, and continuing to the present, Plaintiff has sought to refuse

Defendant access to the Premises, and has changed the locks when Defendant attempted to

maintain its own lock to the Premises. On not less than 9 occasions since the fire, Defendant and

its various contractors have arrived at the Premises to re-commence construction only to be

denied entry because Plaintiff has continuously changed the locks to the Premises without giving

Defendant a key.

128. In August 2016, however, when Julia Shamas, a member of the Defendant,

attempted to enter the property, the building manager refused to provide access and called the

police. The forceful conduct soon escalated.

129. In December 2016, Defendant entered the Premises with a new investor, but was

physically pushed out of the Premises by the building manager. Such conduct continued until

April 2017, when Defendant stopped trying to enter the Premises and instead consulted an

attorney.

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AS AND FOR DEFENDANT'S FIRST COUNTERCLAIM

130. Defendant repeats and realleges each and every allegation set forth hereinabove as

if more fully set forth herein.

131. At all times relevant, Defendant was the tenant of the Premises pursuant to the

Lease.

132. At all times relevant, Defendant complied with all of the terms and conditions of

the Lease.

133. Plaintiff, however, breached the Lease with Defendant by, among other things: (a)

failing to repair the building after the fire; (b) wrongfully evicting, deseizing and locking

Defendant out of the Premises extra-judicially.

134. As a consequence of Plaintiff's breaches of Lease, Defendant has been damaged

in an amount to be determined at trial.

135. At the time that Defendant was wrongfully evicted, deseized, and locked out of

the Premises by Plaintiff, Defendant was the lawful tenant under the Lease properly occupying

the Premises.

136. Plaintiff acted in a forcible and unlawful manner in wrongfully evicting, deseizing

and locking Defendant out of the Premises extra-judicially.

137. By reason of the foregoing, Defendant is entitled to trebled compensatory

damages in an amount to be determined at trial, plus attorneys' fees and costs.

AS AND FOR DEFENDANT'S SECOND COUNTERCLAIM

138. Defendant repeats and realleges each and every allegation set forth hereinabove as

if more fully set forth herein.

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139. Plaintiff s occupancy of the Premises constitutes a trespass upon Defendant's

Premises.

140. By reason of the foregoing, Defendant is entitled to damages in an amount to be

determined at trial, and the ejectment of Plaintiff from the Premises.

AS AND FOR DEFENDANT'S THIRD COUNTERCLAIM

141. Defendant repeats and realleges each and every allegation set forth hereinabove as

if more fully set forth herein.

142. As a result of Plaintiff wrongfully evicting, deseizing and locking Defendant out of

the Premises extra-judicially, Defendant has been substantially and materially deprived of the

beneficial use and enjoyment of the Premises.

143. As a result of Plaintiff wrongfully evicting, deseizing and locking Defendant out of

the Premises extra-judicially, Defendant was unable to complete the necessary construction to

open the Premises for business.

144. As a result of Plaintiff wrongfully evicting, deseizing and locking Defendant out of

the Premises extra-judicially, Defendant has sustained damages, including, but not limited to, lost

business and profits, in an amount to be determined at trial.

AS AND FOR DEFENDANT'S FOURTH COUNTERCLAIM

145. Defendant repeats and realleges each and every allegation set forth hereinabove as

if more fully set forth herein.

146. As a result of Plaintiff wrongfully evicting, deseizing and locking Defendant out of

the Premises extra-judicially, Plaintiff has breached the covenant of quiet enjoyment.

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147. As a result of Plaintiff s breach of the covenant of quiet enjoyment, Defendant has

sustained damages, including, but not limited to, lost business and profits in an amount to be

detennined at trial.

AS AND FOR DEFENDANT'S FIFTH COUNTERCLAIM

148. Defendant repeats and realleges each and every allegation set forth hereinabove as

if more fully set forth herein.

149. Defendant has been forced to retain counsel to defend this lawsuit and prosecute

these counterclaims.

150. As a result of the foregoing, Defendant is entitled to attorneys' fees in an amount

to be determined at trial.

WHEREFORE, Defendant demands judgment: (i) dismissing the Complaint in its

entirety; (ii) for damages, in an amount to be determined at trial, on its Counterclaims; ( i)

awarding costs and disbursements in this action; and (iv) for such other and further relief as the

Court deems just and proper.

Dated:New York, New York
July 31, 2017

IINGRAM YUZEK GAINEN
CARROLL & BERTOLOTTI, LLP
Attorneys for Defendant

By: L
Shari S. Laskowitz
250 Park Avenue
New York, New York 10177
(212) 907-9600

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VERIFICATION

SHARI S. LASKOWITZ, an attorney duly admitted to practice before the Courts of the

State of New York, hereby affirms the following to be true subject to the penalties for perjury

pursuant to CPLR §2106:

1. I am of counsel to Ingram Yuzek Gainen Carroll & Bertolotti, LLP, attorneys for LES

106 Riv, LLC ("Defendant"), the Defendant herein.

2. I have read said Answer and the contents of said Answer are true to my knowledge,

except as to those matters therein stated to be alleged on information and belief, and as to those

matters I believe the same to be true. The grounds of my belief are statements and information

supplied by the Defendant, and/or its agents and employees.

3. This verification is made by the undersigned because Defendant maintains its office

in a county other that the county in which its attorneys maintain their office.

Dated: New York, New York
July 31, 2017

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Case Info

Judge

Sabrina Kraus Track Judge’s New Case

Case No.

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Document Filed Date

August 01, 2017

Case Filing Date

January 01, 2017

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