Preview
FILED: KINGS COUNTY CLERK 09/06/2019 03:26 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 464 RECEIVED NYSCEF: 09/06/2019
At IAS Part Commercial 11 of the Supreme
Court of the State of New York, held in and
for the County of Kings, at the Courthouse
located at 360 Ad s Street, Brooklyn, New
York, on the S -day of February 2018.
P R E 8 E N T:
HONORABLE SYLVIA G. ASH, 3
O Justice.
----------------------------------X
CHERRY HILL GOURMET, INC., : Index No.: 510844/16
Plaintiff, ORDER TO SHOW CAUSE
WITH TEMPORARY
-against- RESTRAINING ORDER SEEKIN G
YELLOWSTONE INJUNCTION
LUNDY'S MANAGEMENT CORP., AND RELATED INJUNCTIVE
RELI EF
Defendant.
ORAL ARGUMENT REQUESTED
------------------------------:
'
LUNDY'S MANAGEMENT CORP., :
Defendant and :
Third-Party Plaintiff, :
-against- :
SHEEPSHEAD RESTAURANT ASSOCIATES, INC., :
Third-Party Defendant. :
------------------------------X
Upon reading and filing of the annexed emergency affirmation of Brett B. Theis,
dated February 20, 2018, the affidavit of George Kazãñtzis, sworn to February 20, 2018, the
exhibits annexed thereto, the Third-Party Summons with Notice, dated February 20, 2018, and all
prior papers and proceedings herein;
RE\87804\0001\2349979v4
FILED: KINGS COUNTY CLERK 09/06/2019 03:26 PM INDEX NO. 510844/2016
NYSCEF DOC.
. NO. 464 . . RECEIVEDb NYSCEF:
NTS CE F : 09/06/2019
O2 / I / 2018
plaintiff Cherry Hill Gourmet, Inc. ("Cherry
and defendant Sheepshead Restaurant Inc. ("Sheepshead"), show
Hill") third-party Associates,
cause before this Court at IAS Part Commercial 11, Room 541, 360 Adams Street, Brooklyn, New
York, on the day of March, 2018, at m. or as soon thereafter as counsel can be
heard, why an order should not be made and entered herein granting defendant and third-party
plaintiff Lundy's Managemeñt Corp. ("Lundy's") a Yellowstone injunction and other preliminary
and mandatory injunctive relief pursuant to CPLR Article 63 a d the inherent powers of the Court,
as follows:
(i) Enjoining and restraining Cherry Hill from continuing to operate its illegal
wood-burning charcoal grill in violation of the New York City Building
Code (Administrative Code of the of tit ch BC 27-
City NY, 27, 14) §
826.01;
(ii) Directing and compelling Cherry Hill to immediately take all necessary
steps to legalize itspremises and close out its open job applications with the
Department of Buildings ("DOB") so that Lundy's can obtain a temporary
certificate of occupancy ("TCO") including, without limitation, obtaining:
(a) a plumbing sign-off for DOB Job No. 321267847; (b) a flood zone
compliance certificate for DOB Job No. 321267847: (c) a sign-off/approval
for its fire suppression system for DOB Job No. and a sign-
321578903; (d)
off/approval for its charcoal grills ,and exhaust system for D OB Job No.
321397859 (collectively, the "TCO Work");
(iii) Pursuant to Yellowstone and its progeny, staying and tolling the time for
Lundy's to cure any purported default under its 49-year net lease, dated
-2-
RE\87804\0001\2349979v4
FILED: KINGS COUNTY CLERK 09/06/2019 03:26 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 464 RECEIVED NYSCEF:
CE F
09/06/2019
Ó 8
!/21/201
dated 2018 (the "Default Notice"), and enjoining and
Default, February 16,
Sheepshead and all other persons acting on itsbehalf, including
restraining
New York City Marshal (collectively and/or individually,
any
"Sheepshead"), from any steps or acts whatsoever to terminate
taking
Lundy's'
Net Lease or to recover possession of the land and buildings
located at 1901 Emmons Avenue, Brooklyn, New York (the "Premises") on
"penalties"
the basis that Lundy's has not paid certain to Landlord for not
having a TCO for the Premises and/or based upon nonpayment of certain
disputed items of rent pending a determination on the merits after trialand
an accounting;
(iv) Directing Cherry Hill to immediately return, or cause to be returned, the
garbage containers serving the Premises to the location set forth in Exhibit
C to the 2013 sublease and enjoining Cherry Hill from continuing to remove
the garbage containers to the sidewalk, streets or the alley way near the
Premises, blocking egress and creating health and fire safety hazards;
(v) Compelling and directing Cherry Hill to immediately cease idling the
refrigeration truck that it uses for cold storage in the parking .lot of the
Premises, which is causing a nuisance and interfering with the bustacsses
Premises'
of the other subtenants;
(vi) Pursuant to CPLR 3025(B), granting Lundy's leave to supplement its
answer with counterclaims by setting forth additional or subsequent
transactions or occurrences since the commencement of this action,
-3-
RE\87804\0001G349979v4
FILED: KINGS COUNTY CLERK 09/06/2019 03:26 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 464 RECEIVED NYSCEF:
S CEF:
09/06/2019
02/21/2018
illegal wood-
(without Hill's operation of an
including limitation) Cherry
removal of the garbage containers and idling of the
burning grill,
Premises'
refrigeration truck on the parking lot; and
For such other and further relief that this Court deems just, proper and
(vii)
equitable; and itis further
that the hearingmul--detemenation of this.motion Hill is
ORDERED, pending Cherry
directed to cease its operation of itswood-bu ning charcoal grill trr ieleties.of
immediately (a)
n
det-ef-the-Premises; and it isfurther
ORDERED, that pending the hearing-and-detemenation of this motion, the time to cure
the alleged default set forth in the Default Notice is hereby tolled and stayed and Sheepshead is
Lundy's'
restrained and enjoined from taking any steps to terminate the Net Lease or interfere with
enancy including, without limitation, serving a notice of termination or a Marshal's notice of
eviction or commeñeiñg any action or proceeding seeking to terminate the Net Lease and/or
disturbing in any manner the possession and rights of Lundy's in and to the Premises based on the
efault Notice; and it isfurther Û
service of a copy of this Order to S ow Cause wit Temporary
Restraining Ord and copies of e papers upon w ich itis gran d, upon Cherry ill c/o Zing n
& Associat PLLC, , 1
, on or before ebruary , 18, shall be de ed good a d sufficient
Serv*ce upon Cherry ill; and it isfu er
-4-
RB\87804\0001\2349979v4
FILED: KINGS COUNTY CLERK 09/06/2019 03:26 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 464 RECEIVED NYSCEF: 09/06/2019
se ce of a of is Order to Show ause with Tem rary
, copy
Order copics of e papers upon ich it isgranted, pon Sheepshead /o Hagan,
Restraining
& Asso per nal deliver or--
Coury 'ates, , by
, on or bef re February _, 018, shall be dee ed good and su icient serv ce upon
ambietdimeker 0
Sheepshead;
ORD D, that is motion hall be orall argued by t parties, or eir counsel,
oppos' Lundy's'
and t t ton papers if any, be rved by h d delivdy r overnig mail on
oracys osenberg Estis, P.C 33 Third venue, N York, N York 10017, A tion:
Bret . Theis so s to be rec ed atleas even da prior to the eturn date or an adjourñment
thereof; and is further
ORDERED at Lundy's shall rve reply papers, i any, so that they are r ived
Sh-
by pshead and C erry Hill one day tor to the return dat or any adjournme thereof.
ENTER:
J.S.C.
HON. SYLViA G ASH, JSC
-s-
RE\87804\0001\234997974
Preview
FILED: KINGS COUNTY CLERK 09/06/2019 03:26 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 464 RECEIVED NYSCEF: 09/06/2019 At IAS Part Commercial 11 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse located at 360 Ad s Street, Brooklyn, New York, on the S -day of February 2018. P R E 8 E N T: HONORABLE SYLVIA G. ASH, 3 O Justice. ----------------------------------X CHERRY HILL GOURMET, INC., : Index No.: 510844/16 Plaintiff, ORDER TO SHOW CAUSE WITH TEMPORARY -against- RESTRAINING ORDER SEEKIN G YELLOWSTONE INJUNCTION LUNDY'S MANAGEMENT CORP., AND RELATED INJUNCTIVE RELI EF Defendant. ORAL ARGUMENT REQUESTED ------------------------------: ' LUNDY'S MANAGEMENT CORP., : Defendant and : Third-Party Plaintiff, : -against- : SHEEPSHEAD RESTAURANT ASSOCIATES, INC., : Third-Party Defendant. : ------------------------------X Upon reading and filing of the annexed emergency affirmation of Brett B. Theis, dated February 20, 2018, the affidavit of George Kazãñtzis, sworn to February 20, 2018, the exhibits annexed thereto, the Third-Party Summons with Notice, dated February 20, 2018, and all prior papers and proceedings herein; RE\87804\0001\2349979v4 FILED: KINGS COUNTY CLERK 09/06/2019 03:26 PM INDEX NO. 510844/2016 NYSCEF DOC. . NO. 464 . . RECEIVEDb NYSCEF: NTS CE F : 09/06/2019 O2 / I / 2018 plaintiff Cherry Hill Gourmet, Inc. ("Cherry and defendant Sheepshead Restaurant Inc. ("Sheepshead"), show Hill") third-party Associates, cause before this Court at IAS Part Commercial 11, Room 541, 360 Adams Street, Brooklyn, New York, on the day of March, 2018, at m. or as soon thereafter as counsel can be heard, why an order should not be made and entered herein granting defendant and third-party plaintiff Lundy's Managemeñt Corp. ("Lundy's") a Yellowstone injunction and other preliminary and mandatory injunctive relief pursuant to CPLR Article 63 a d the inherent powers of the Court, as follows: (i) Enjoining and restraining Cherry Hill from continuing to operate its illegal wood-burning charcoal grill in violation of the New York City Building Code (Administrative Code of the of tit ch BC 27- City NY, 27, 14) § 826.01; (ii) Directing and compelling Cherry Hill to immediately take all necessary steps to legalize itspremises and close out its open job applications with the Department of Buildings ("DOB") so that Lundy's can obtain a temporary certificate of occupancy ("TCO") including, without limitation, obtaining: (a) a plumbing sign-off for DOB Job No. 321267847; (b) a flood zone compliance certificate for DOB Job No. 321267847: (c) a sign-off/approval for its fire suppression system for DOB Job No. and a sign- 321578903; (d) off/approval for its charcoal grills ,and exhaust system for D OB Job No. 321397859 (collectively, the "TCO Work"); (iii) Pursuant to Yellowstone and its progeny, staying and tolling the time for Lundy's to cure any purported default under its 49-year net lease, dated -2- RE\87804\0001\2349979v4 FILED: KINGS COUNTY CLERK 09/06/2019 03:26 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 464 RECEIVED NYSCEF: CE F 09/06/2019 Ó 8 !/21/201 dated 2018 (the "Default Notice"), and enjoining and Default, February 16, Sheepshead and all other persons acting on itsbehalf, including restraining New York City Marshal (collectively and/or individually, any "Sheepshead"), from any steps or acts whatsoever to terminate taking Lundy's' Net Lease or to recover possession of the land and buildings located at 1901 Emmons Avenue, Brooklyn, New York (the "Premises") on "penalties" the basis that Lundy's has not paid certain to Landlord for not having a TCO for the Premises and/or based upon nonpayment of certain disputed items of rent pending a determination on the merits after trialand an accounting; (iv) Directing Cherry Hill to immediately return, or cause to be returned, the garbage containers serving the Premises to the location set forth in Exhibit C to the 2013 sublease and enjoining Cherry Hill from continuing to remove the garbage containers to the sidewalk, streets or the alley way near the Premises, blocking egress and creating health and fire safety hazards; (v) Compelling and directing Cherry Hill to immediately cease idling the refrigeration truck that it uses for cold storage in the parking .lot of the Premises, which is causing a nuisance and interfering with the bustacsses Premises' of the other subtenants; (vi) Pursuant to CPLR 3025(B), granting Lundy's leave to supplement its answer with counterclaims by setting forth additional or subsequent transactions or occurrences since the commencement of this action, -3- RE\87804\0001G349979v4 FILED: KINGS COUNTY CLERK 09/06/2019 03:26 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 464 RECEIVED NYSCEF: S CEF: 09/06/2019 02/21/2018 illegal wood- (without Hill's operation of an including limitation) Cherry removal of the garbage containers and idling of the burning grill, Premises' refrigeration truck on the parking lot; and For such other and further relief that this Court deems just, proper and (vii) equitable; and itis further that the hearingmul--detemenation of this.motion Hill is ORDERED, pending Cherry directed to cease its operation of itswood-bu ning charcoal grill trr ieleties.of immediately (a) n det-ef-the-Premises; and it isfurther ORDERED, that pending the hearing-and-detemenation of this motion, the time to cure the alleged default set forth in the Default Notice is hereby tolled and stayed and Sheepshead is Lundy's' restrained and enjoined from taking any steps to terminate the Net Lease or interfere with enancy including, without limitation, serving a notice of termination or a Marshal's notice of eviction or commeñeiñg any action or proceeding seeking to terminate the Net Lease and/or disturbing in any manner the possession and rights of Lundy's in and to the Premises based on the efault Notice; and it isfurther Û service of a copy of this Order to S ow Cause wit Temporary Restraining Ord and copies of e papers upon w ich itis gran d, upon Cherry ill c/o Zing n & Associat PLLC, , 1 , on or before ebruary , 18, shall be de ed good a d sufficient Serv*ce upon Cherry ill; and it isfu er -4- RB\87804\0001\2349979v4 FILED: KINGS COUNTY CLERK 09/06/2019 03:26 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 464 RECEIVED NYSCEF: 09/06/2019 se ce of a of is Order to Show ause with Tem rary , copy Order copics of e papers upon ich it isgranted, pon Sheepshead /o Hagan, Restraining & Asso per nal deliver or-- Coury 'ates, , by , on or bef re February _, 018, shall be dee ed good and su icient serv ce upon ambietdimeker 0 Sheepshead; ORD D, that is motion hall be orall argued by t parties, or eir counsel, oppos' Lundy's' and t t ton papers if any, be rved by h d delivdy r overnig mail on oracys osenberg Estis, P.C 33 Third venue, N York, N York 10017, A tion: Bret . Theis so s to be rec ed atleas even da prior to the eturn date or an adjourñment thereof; and is further ORDERED at Lundy's shall rve reply papers, i any, so that they are r ived Sh- by pshead and C erry Hill one day tor to the return dat or any adjournme thereof. ENTER: J.S.C. HON. SYLViA G ASH, JSC -s- RE\87804\0001\234997974