Preview
FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 02/01/2019
CIVIL COURY OF THE CITY OF NEW YORK
COUNTY OF IGNGS: Part 52
SHEEPSHEAD RESTAURANT ASSOCIATES, INC., :
: Commercial L&T
Petitioner · : Index No.: 93824/18
(Landlord),
-againit- : TWO-ATTORNEY
: STIPUEATION OF
LUNDY'S MANAGEMENT CORP. : SETTLEMENT (NON-
PAYMENT)
Respondent (Tenant). :
IT IS RBBY STIPULATBD AND AORBBD, by and between the respective parties
hereto as follo¼s:
1. inal judgment In the sum of $220,359.001n favor of the Petitioner, representing
attorneys'
arrearsdue through January, 2019, incinding latefees and fees (the "Atrears") as set
aAadnta "A."
forthin the annexed hereto as Exhibit The Arrears do not include any acorued but
unbilledwater chargca for December, 2018 orJanuary, 2019.
2. Warrant of eviction shallissue forthwith, execution stayed in acccidence with the
terms hereof.
3. aThe Respondent shallpay theArrests to thePetitioner as follows:
a. $100,000 by wire or delivery so as to be received by Petitioner no later than
February 4, 2019, with such amount bearing pre-judgment interest at the
statutory rate from date such sums were due under the Lease ifnot paid timely;
ib. The balance of the Arrears shall be paid in four (4) equal installments of
$30,089.75 on the following dates March 10, April 10, May 10 and June 10
2019.
RTA87804\000n2624468v2
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FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 02/01/2019
4. february undisputed rent and additionalrentshall be paid by no laterthan .
February
28, 2019, Respondent shall continue to pay allother undisputed rentand additional rent as they
become due pyrsuant to the Lease, commencing in March, 2019. Und!eputed rent shall include
the following categories:
Sa. Real Estate Tax Monthly Escrow
) b. Flood Insurance Premium Monthly Esorow
. Base Monthly Rent
d. Monthly Current Intereston Escrow
e. Water/Sewer
f. Late fees (ifappileable)
5. otw'Jhatanding the above psymcat s^hedule, the Arrests may be pre-paid atany
time, All pa ents received shall firstbe applied to ourrentand additional rent,ifany, and then
to theArrears,
6, . Upon any default in payment ofthe Arrears on the dates set forth above, and after
three(3) day written notice of default to Lundy's Meregement Carp, by federal express overnight
at 540 Atlantle Avenue, Lower Level, Brooklyn, New York 11217 and by email at
pappassi sol.com and to Brett Theis, Esq., by federal exprcss overnight at ROSENBERG &
· 733 Third New New York 10017 and email to
BSTIS, P.C., Avenue, York, by
btheis@reen ygestis.com, the Petitioñer may serve and execute on the warrant, All Lease
documents are ~Wind to read thatthe Rcspend6ñt's address has been changed from 540 Atlantio
56 served until
Avenue, R1'oor to 540 Atlantio Avenue, Lower Level. Warrant may not be after
serviceof a deÍ'aultnotice and expiraticñ ofthe notice to cure. Any-==3
2 -
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FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 02/01/2019
be-rejeeted-at-1áé‡krsr'e-sele-die-Lienrand-Respondent hereby waives itsright to Y÷ucstone
I
reliefwith respect to any three (3) day notice of default issued hereunder or failure to pay
üñdiãpated our ent rent and additieña! rent forthe term of thestipulation. In additicñ to allother
remedies set förthherein, in the event Respoñdêñt failsto make any paymcñt required under this
stipulationin a timely manner, and afterservloe of the epp!!oable notice to cure and expiration of
the applicable bure period, there shallbe a one-time permanent increase in rent of $23000 00 per
month..
7. his stipulation may be submined to the Clerk of Court or.to the Court to be so-
ordered withou further notice to any party,and the parties hereto expressl y consent to submit this
st!puklon to b so-ordered by this Court. The Respondent expressly authorizes the Petitioner to
Theparties'
filethisstipuld lon with the Clerk and/or Court, ackilówledge and consent that the
terms of thisatlpulation shall be valid and enforceable upon executies, and shallremain valid and
enforceable r6 ârdicss of whether thisstipe!ation isso-ordered by the Court.
8. pon fullsatisfaction of the Arrearsthe judgment
final and warrant shallbe vacated
and shallbe null and void and of no furtherforce or effect.
9. Except as stated otherwise herein, the partiesagree that payracñt and acceptance of
parties'
the -mr±e setforth herein shall be without prejudice and without waiving the claims and
defenses inthe litigation in the Supreme Court of theState of New York, Kings County, Index No.
510844/16 (Ad , LS.C.) (the "State Court Action") a portion of which remains pending In the
United States à nkruptcy Court forthe Eastern Distdct of New York.
parties'
10. The Petitioner reserves itsrightsto seek the TCO/CO payments under the
lease includins.any claim for legal fees In connection with collection thereof and Respoñdoñt
reserves its ri ht to cordimm to challenge the TCO/CO payments, however, Respondent
RB\87804t00DI\2621468v2
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FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 02/01/2019
permanently vialves itsright to assert thatthe priorTCO/CO payments offset Respondent's future
rentalobligan ns. The execution of thisstipulation shallnot be deemed a waiver of Petitioñer's
rightsto seek nuch TCO/CO payments or any other payments due under the Lease nor shallitbe
deemed a waiter of Respondent's defenses In connection thionah.
11. As used in this stipulation:
The "Premises" sh'allbe defined
a, as allbuildings, rooms, and land located at
1901-1929 Emmons Avenue, and 31-52 to 31-76 Ocean Avenue, Brooldyn,
, New York 11235, as more fully described inthe metes and bounds description
and survey annexed hereto as Exhibit A to the Net Lease dated March 9, 1994,
Premiscs"
. the entire Block 8775, Lot 41, otherwise described as.the "Lease in
the Net Lease dated March 9, 1994. The foregoing shall be a suffiriant
a description of thePremises for thepurposes of any notice s,ervedunder the Net
Lease, the First Modificatica, the Second ModifloatIon, and this Agreement,
and shall be a sufficientdescription of the Premises in connection with any
existing or fbture summary proceeding concerning the Premises.
E::ildinii"
b. The "Main shallbe defined as thatportion of the Premises including
the two-story building,rooms, and land located at 1901-1929 Emmons Avenue,
Brooklyn, New York 11235, and all ancillarystructures attached thereto.
, 4 ..
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FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 02/01/2019
"Annex"
c. The shall be defined as thatportion of the Premises the
including
e three-story building,rooms, and land located at 31-52 to 31-76 Ocean
d. Avenue, Brooklyn, New York 11235, and all ancillarystructures attached
thereto.
12. The cure period set forth in the Notice to Cure dated December 2018 (the
12,
"Notice to Cute") relating to the balance of thealleged lease defaults is extended through
hereby
and including April 15, 2019.
13, Respondent agrees thatallpyrdüa for rentand additional rent made to date,and
pursuant to thisstipulation, are accurate and Respondent waives any right to challenge said sums
with the exception of any payments made in connection with the non-gunnanont gono for
TCO/CO.
14. All payments hercuñdor are Time of theEssence.
15. In the event of a breach ofthis stipulationby either party, the prevailing party shall
attorneys'
be entitled
to recover itsreasonable fees and shallbe entitled to ra«nrmhle legal fees to
recoversuch sums.
Dated: Jahuary 15, 2019
HAGAN, COURY & AS .OCIATES ROSENBERG & ESTIS,
AttorneysfoqPettions Attorneysfor Respondent
Pf .,
By: Willia n J. Coury By: Brett Theis
908 4th Avenue 733 Third Avenue
Brooklyn, NŸ 11232 New York, New York 10017 .
(718) 788-5052 (212) 867-6000
wcoury(dlaol om btheis@roscñbergestis.com
SHEEPSHEAD RESTAURANT LUNDY$8 MANAGEMENT CORP,
ASSOCIATES, INC, Respondent
Petitioner t
!
s -5 -
RE\87804\0001\2È4468v2
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FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 02/01/2019
President By: Steve Pappas, Presidént
Gy. eorge Pantepdis,
6 -
Ra8.7804\000n262 468v2
pa 87804 000!\263077941
FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 02/01/2019
EXHIBIT A
FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 02/01/2019
Due Date Charge . Amount Due
11/1/2018 November 2018 Real Estate Tax Monthly Escrow $ 36,001.70
11/1/2018 November 2018 Flood Insurance Premium Monthly Escrow $ 1,005.84
11/10/2018 November 2018 Base Monthly Rent $ 46,177.74
11/10/2018 November 2018 Current Interest on Escrow $ 3,918.75
11/10/2018 Legal Fees for ADA Case $ 440.00
11/10/2018 Legal Fees for Siptulation Default $ 3,135,00
Subtotal $ 90,679.03
5% Late Fee ($90,679.03 x 5%) $ 4,533.95
Subtotal of November Charges $ 95,212.98
12/1/2018 December 2018 Real Estate Tax Monthly Escrow $ 36,001.70
12/1/2018 December 2018 Flood Insurance Premium Monthly Escrow $ 1,005.84
12/10/2018 Decembér 2018 Base Monthly Rent $ 46,177,74
12/10/2018 December 2018 Current Intereston Escrow $ 3,918.75
12/10/2018 October7018 Water/Sewer . $ 4,222,22
12/10/2018 Novemb¢r 2018 Water/Sewer $ 3,212.12
12/10/2018 Legal Fegs for Nonpayment Case $ 1,986.25
12/10/2018 Legal Feds forADA Case $ 233.75
SubtotâfQ $ 96,758,37
5% Laté Eee ($96,758.37 x 5%) $ 4,837.92
Subtotal of December Charges $ 101,596.29
1/1/2019 January Ž019 Real Estate Tax Monthly Escrow $ 36,001.70
1/1/2019 January 2019 Flood insurance Premium Monthly Escrow $ 1,005.84
1/10/2019 January 3019 Base Monthly Rent . $ 46,177.74
1/10/2019 2019 Current interest on Escrow $ 3,918.7S
January
1/10/2019 Legal Feds for Nonpayment case $ 2,560.00
Subtotall $ 89,664,03
5% Late Eee ($89,664.03 x $ 4,483.20
5%)
Subtotaliof January Charges $ 94,147.23
SUBTOTAL DUE FOR NOV, DEC and JAN $ 290,956.50
Less Payfnent (Check 2361 dated 12/28/18) $ (72,000.00)
BALANCÈ DOE FOR NOV, DEC AND JAN $ 218,956,50
Estimbt d legalfees for negotiation and revisionsto stipulation
of settle nent including review of financialrecords and
fliscuÓsidnswith client (4 hours at $275 per hour) $ 1,100.00
Prepdration of Warrant Request $ 150.00
Marsbal'A Fee for Warrant Request $ 15,00
CourtiAp.pearance to fileStipulation (.5hours at $275 per hour) $ 137.50
TOTAt. DUE $ 220,359.00
Preview
FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 02/01/2019 CIVIL COURY OF THE CITY OF NEW YORK COUNTY OF IGNGS: Part 52 SHEEPSHEAD RESTAURANT ASSOCIATES, INC., : : Commercial L&T Petitioner · : Index No.: 93824/18 (Landlord), -againit- : TWO-ATTORNEY : STIPUEATION OF LUNDY'S MANAGEMENT CORP. : SETTLEMENT (NON- PAYMENT) Respondent (Tenant). : IT IS RBBY STIPULATBD AND AORBBD, by and between the respective parties hereto as follo¼s: 1. inal judgment In the sum of $220,359.001n favor of the Petitioner, representing attorneys' arrearsdue through January, 2019, incinding latefees and fees (the "Atrears") as set aAadnta "A." forthin the annexed hereto as Exhibit The Arrears do not include any acorued but unbilledwater chargca for December, 2018 orJanuary, 2019. 2. Warrant of eviction shallissue forthwith, execution stayed in acccidence with the terms hereof. 3. aThe Respondent shallpay theArrests to thePetitioner as follows: a. $100,000 by wire or delivery so as to be received by Petitioner no later than February 4, 2019, with such amount bearing pre-judgment interest at the statutory rate from date such sums were due under the Lease ifnot paid timely; ib. The balance of the Arrears shall be paid in four (4) equal installments of $30,089.75 on the following dates March 10, April 10, May 10 and June 10 2019. RTA87804\000n2624468v2 RB\87804\000n2630779vI FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 02/01/2019 4. february undisputed rent and additionalrentshall be paid by no laterthan . February 28, 2019, Respondent shall continue to pay allother undisputed rentand additional rent as they become due pyrsuant to the Lease, commencing in March, 2019. Und!eputed rent shall include the following categories: Sa. Real Estate Tax Monthly Escrow ) b. Flood Insurance Premium Monthly Esorow . Base Monthly Rent d. Monthly Current Intereston Escrow e. Water/Sewer f. Late fees (ifappileable) 5. otw'Jhatanding the above psymcat s^hedule, the Arrests may be pre-paid atany time, All pa ents received shall firstbe applied to ourrentand additional rent,ifany, and then to theArrears, 6, . Upon any default in payment ofthe Arrears on the dates set forth above, and after three(3) day written notice of default to Lundy's Meregement Carp, by federal express overnight at 540 Atlantle Avenue, Lower Level, Brooklyn, New York 11217 and by email at pappassi sol.com and to Brett Theis, Esq., by federal exprcss overnight at ROSENBERG & · 733 Third New New York 10017 and email to BSTIS, P.C., Avenue, York, by btheis@reen ygestis.com, the Petitioñer may serve and execute on the warrant, All Lease documents are ~Wind to read thatthe Rcspend6ñt's address has been changed from 540 Atlantio 56 served until Avenue, R1'oor to 540 Atlantio Avenue, Lower Level. Warrant may not be after serviceof a deÍ'aultnotice and expiraticñ ofthe notice to cure. Any-==3 2 - RE\87804\0001\2624468v2 RE187804\0001\26$0779v1 FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 02/01/2019 be-rejeeted-at-1áé‡krsr'e-sele-die-Lienrand-Respondent hereby waives itsright to Y÷ucstone I reliefwith respect to any three (3) day notice of default issued hereunder or failure to pay üñdiãpated our ent rent and additieña! rent forthe term of thestipulation. In additicñ to allother remedies set förthherein, in the event Respoñdêñt failsto make any paymcñt required under this stipulationin a timely manner, and afterservloe of the epp!!oable notice to cure and expiration of the applicable bure period, there shallbe a one-time permanent increase in rent of $23000 00 per month.. 7. his stipulation may be submined to the Clerk of Court or.to the Court to be so- ordered withou further notice to any party,and the parties hereto expressl y consent to submit this st!puklon to b so-ordered by this Court. The Respondent expressly authorizes the Petitioner to Theparties' filethisstipuld lon with the Clerk and/or Court, ackilówledge and consent that the terms of thisatlpulation shall be valid and enforceable upon executies, and shallremain valid and enforceable r6 ârdicss of whether thisstipe!ation isso-ordered by the Court. 8. pon fullsatisfaction of the Arrearsthe judgment final and warrant shallbe vacated and shallbe null and void and of no furtherforce or effect. 9. Except as stated otherwise herein, the partiesagree that payracñt and acceptance of parties' the -mr±e setforth herein shall be without prejudice and without waiving the claims and defenses inthe litigation in the Supreme Court of theState of New York, Kings County, Index No. 510844/16 (Ad , LS.C.) (the "State Court Action") a portion of which remains pending In the United States à nkruptcy Court forthe Eastern Distdct of New York. parties' 10. The Petitioner reserves itsrightsto seek the TCO/CO payments under the lease includins.any claim for legal fees In connection with collection thereof and Respoñdoñt reserves its ri ht to cordimm to challenge the TCO/CO payments, however, Respondent RB\87804t00DI\2621468v2 EB\S78041000112630779v1 FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 02/01/2019 permanently vialves itsright to assert thatthe priorTCO/CO payments offset Respondent's future rentalobligan ns. The execution of thisstipulation shallnot be deemed a waiver of Petitioñer's rightsto seek nuch TCO/CO payments or any other payments due under the Lease nor shallitbe deemed a waiter of Respondent's defenses In connection thionah. 11. As used in this stipulation: The "Premises" sh'allbe defined a, as allbuildings, rooms, and land located at 1901-1929 Emmons Avenue, and 31-52 to 31-76 Ocean Avenue, Brooldyn, , New York 11235, as more fully described inthe metes and bounds description and survey annexed hereto as Exhibit A to the Net Lease dated March 9, 1994, Premiscs" . the entire Block 8775, Lot 41, otherwise described as.the "Lease in the Net Lease dated March 9, 1994. The foregoing shall be a suffiriant a description of thePremises for thepurposes of any notice s,ervedunder the Net Lease, the First Modificatica, the Second ModifloatIon, and this Agreement, and shall be a sufficientdescription of the Premises in connection with any existing or fbture summary proceeding concerning the Premises. E::ildinii" b. The "Main shallbe defined as thatportion of the Premises including the two-story building,rooms, and land located at 1901-1929 Emmons Avenue, Brooklyn, New York 11235, and all ancillarystructures attached thereto. , 4 .. RBl67804\0001\2624468v2 RB\87804\0001\263Ò779v1 FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 02/01/2019 "Annex" c. The shall be defined as thatportion of the Premises the including e three-story building,rooms, and land located at 31-52 to 31-76 Ocean d. Avenue, Brooklyn, New York 11235, and all ancillarystructures attached thereto. 12. The cure period set forth in the Notice to Cure dated December 2018 (the 12, "Notice to Cute") relating to the balance of thealleged lease defaults is extended through hereby and including April 15, 2019. 13, Respondent agrees thatallpyrdüa for rentand additional rent made to date,and pursuant to thisstipulation, are accurate and Respondent waives any right to challenge said sums with the exception of any payments made in connection with the non-gunnanont gono for TCO/CO. 14. All payments hercuñdor are Time of theEssence. 15. In the event of a breach ofthis stipulationby either party, the prevailing party shall attorneys' be entitled to recover itsreasonable fees and shallbe entitled to ra«nrmhle legal fees to recoversuch sums. Dated: Jahuary 15, 2019 HAGAN, COURY & AS .OCIATES ROSENBERG & ESTIS, AttorneysfoqPettions Attorneysfor Respondent Pf ., By: Willia n J. Coury By: Brett Theis 908 4th Avenue 733 Third Avenue Brooklyn, NŸ 11232 New York, New York 10017 . (718) 788-5052 (212) 867-6000 wcoury(dlaol om btheis@roscñbergestis.com SHEEPSHEAD RESTAURANT LUNDY$8 MANAGEMENT CORP, ASSOCIATES, INC, Respondent Petitioner t ! s -5 - RE\87804\0001\2È4468v2 RB\87804\0001\2630779v1 FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 02/01/2019 President By: Steve Pappas, Presidént Gy. eorge Pantepdis, 6 - Ra8.7804\000n262 468v2 pa 87804 000!\263077941 FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 02/01/2019 EXHIBIT A FILED: KINGS COUNTY CLERK 02/01/2019 04:44 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 420 RECEIVED NYSCEF: 02/01/2019 Due Date Charge . Amount Due 11/1/2018 November 2018 Real Estate Tax Monthly Escrow $ 36,001.70 11/1/2018 November 2018 Flood Insurance Premium Monthly Escrow $ 1,005.84 11/10/2018 November 2018 Base Monthly Rent $ 46,177.74 11/10/2018 November 2018 Current Interest on Escrow $ 3,918.75 11/10/2018 Legal Fees for ADA Case $ 440.00 11/10/2018 Legal Fees for Siptulation Default $ 3,135,00 Subtotal $ 90,679.03 5% Late Fee ($90,679.03 x 5%) $ 4,533.95 Subtotal of November Charges $ 95,212.98 12/1/2018 December 2018 Real Estate Tax Monthly Escrow $ 36,001.70 12/1/2018 December 2018 Flood Insurance Premium Monthly Escrow $ 1,005.84 12/10/2018 Decembér 2018 Base Monthly Rent $ 46,177,74 12/10/2018 December 2018 Current Intereston Escrow $ 3,918.75 12/10/2018 October7018 Water/Sewer . $ 4,222,22 12/10/2018 Novemb¢r 2018 Water/Sewer $ 3,212.12 12/10/2018 Legal Fegs for Nonpayment Case $ 1,986.25 12/10/2018 Legal Feds forADA Case $ 233.75 SubtotâfQ $ 96,758,37 5% Laté Eee ($96,758.37 x 5%) $ 4,837.92 Subtotal of December Charges $ 101,596.29 1/1/2019 January Ž019 Real Estate Tax Monthly Escrow $ 36,001.70 1/1/2019 January 2019 Flood insurance Premium Monthly Escrow $ 1,005.84 1/10/2019 January 3019 Base Monthly Rent . $ 46,177.74 1/10/2019 2019 Current interest on Escrow $ 3,918.7S January 1/10/2019 Legal Feds for Nonpayment case $ 2,560.00 Subtotall $ 89,664,03 5% Late Eee ($89,664.03 x $ 4,483.20 5%) Subtotaliof January Charges $ 94,147.23 SUBTOTAL DUE FOR NOV, DEC and JAN $ 290,956.50 Less Payfnent (Check 2361 dated 12/28/18) $ (72,000.00) BALANCÈ DOE FOR NOV, DEC AND JAN $ 218,956,50 Estimbt d legalfees for negotiation and revisionsto stipulation of settle nent including review of financialrecords and fliscuÓsidnswith client (4 hours at $275 per hour) $ 1,100.00 Prepdration of Warrant Request $ 150.00 Marsbal'A Fee for Warrant Request $ 15,00 CourtiAp.pearance to fileStipulation (.5hours at $275 per hour) $ 137.50 TOTAt. DUE $ 220,359.00