Preview
FILED: KINGS COUNTY CLERK 07/10/2020
08/19/2020 03:10
10:47 PM
AM INDEX NO. 510844/2016
NYSCEF DOC. NO. 563
585 RECEIVED NYSCEF: 07/10/2020
08/19/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------X
CHERRY HILL GOURMET, INC., Index No. 510844/2016
Plaintiff,
THIRD-PARTY
-against- DEFENDANT'S CLAIMS
AGAINST PLAINTIFF
LUNDY'S MANAGEMENT CORP., CHERRY HILL GOURMET,
INC.
Defendant.
-------------------------------------------------------------X
LUNDY'S MANAGEMENT CORP.,
Defendant and
Third-Party Plaintiff,
-against-
SHEEPSHEAD RESTAURANT ASSOCIATES INC.,
Third-Party Defendant.
-------------------------------------------------------------X
Third-Party Defendant Sheepshead Restaurant Associates Inc. ("Sheepshead"), as and for
its claims against Plaintiff Cherry Hill Gourmet, Inc. ("Cherry Hill"), alleges as follows:
1. Sheepshead Restaurant Associates Inc. is a New York corporation with itsprincipal
office in Brooklyn, NY.
2. Cherry Hill Gourmet, Inc. is a New York corporation with its principal office in
Brooklyn, NY.
3. Sheepshead is the owner of the real property located at 1901 Emmons Avenue,
Brooklyn, NY ("Premises").
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FILED: KINGS COUNTY CLERK 07/10/2020
08/19/2020 03:10
10:47 PM
AM INDEX NO. 510844/2016
NYSCEF DOC. NO. 563
585 RECEIVED NYSCEF: 07/10/2020
08/19/2020
4. Sheepshead and defendant/third party plaintiff Lundy's Management
Corp.["Lundy's] entered into a net lease ["Overlease"] for the Premises on or about March 9, 1994.
5. Lundy's, as sublandlord, and Cherry Hill, as subtenant, entered into a sublease
["Sublease"] for a portion of the Premises.
6. Cherry Hill is a subtenant of a portion of the Premises pursuant to that Sublease.
7. On or about December 19, 2007, Cherry Hill and Lundy's entered a nondisturbance
agreement with Sheepshead ["Nondisturbance Agreement"], for valuable consideration.
8. Lundy's consented to the terms of the Nondisturbance Agreement, and to be bound
by those terms, in writing.
9. Paragraph 4 of the Nondisturbance Agreement includes the following language: "If
Sublandlord defaults in the payment of any rent, additional rent or other sum due under the
Overlease or in the performance of any of Sublandlord's obligations under the Overlease, and such
default continues after notice and beyond any applicable cure period provided for in the Overlease,
then Subtenant, after receiving a notice from Overlandlord directing Subtenant to do so, shall pay
to Overlandlord all rent, additional rent, and other sums thereafter becoming due under the
Sublease"
10. On or about March 17, 2020, Sheepshead sent a notice to Lundy's ["Notice of
Default"].
11. The Notice of Default indicated that Lundy's had failed to pay certain rent,
additional rent, and late fees in the sum of $96,815.74.
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FILED: KINGS COUNTY CLERK 07/10/2020
08/19/2020 03:10
10:47 PM
AM INDEX NO. 510844/2016
NYSCEF DOC. NO. 563
585 RECEIVED NYSCEF: 07/10/2020
08/19/2020
12. The Notice of Default directed Lundy's to pay those sums on or before March 25,
2020, or else Lundy's would be deemed to have committed an event of default pursuant to the
Overlease.
13. Lundy's failed to pay any sums to Sheepshead on any date from March of 2020 to
present.
14. Sheepshead has also sent at least one additional notice to Lundy's concerning
further defaults in its Overlease, including without limitation Lund's failure to pay rent and
additional rent.
15. Lundy's is in default of itsobligations to pay rent and additional rent under the
Overlease.
16. On or about May 1, 2020, Sheepshead sent a notice ["Cherry Hill Notice"] pursuant
to the Nondisturbance Agreement to Cherry Hill.
17. The Cherry Hill Notice accurately indicated that Lundy's had defaulted in the
payment of rent, additional rent, and other sums due under the Overlease.
18. The Cherry Hill Notice directed Cherry Hill to pay all rent, additional rent, and
other sums due under the Sublease directly to Sheepshead.
19. Cherry Hill's attorney has informed the third party defendant that Cherry Hill has
deposited all or a portion of certain rent, additional rent, and other sums due under the Sublease,
with its counsel, including without limitation those sums owed from May, June, and July of 2020,
and up to present, in the amount of $48,692.38 per month for a total of $146,077.14.
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FILED: KINGS COUNTY CLERK 07/10/2020
08/19/2020 03:10
10:47 PM
AM INDEX NO. 510844/2016
NYSCEF DOC. NO. 563
585 RECEIVED NYSCEF: 07/10/2020
08/19/2020
20. On or about December 14, 2016 Hon. Ash of the Kings County Supreme Court
issued an order which granted Cherry Hill a Yellowstone Injunction. ("December 14, 2016
order.")
21. Pursuant to the December 14, 2016 order, the court indicated in relevant part that
Defendant."
"Plaintiff shall remain current with allfuture rental/use and occupancy obligations to
AND FOR A FIRST CAUSE OF ACTION AGAINST CHERRY HILL
22. Sheepshead is entitled to a declaratory judgment that Cherry Hill is obligated to
provide all rent, additional rent, and other sums thereafter becoming due under the Sublease,
directly to Sheepshead until and unless Lundy's cures all of its lease defaults. (Nothing in this
complaint is to be deemed an admission that Lundy's has the right or ability to cure any lease
default.)
23. Sheepshead is entitled to a declaratory judgment that Cherry Hill's payment of rent,
additional rent, and other sums thereafter becoming due under the Sublease, directly to
Sheepshead, would be deemed in compliance with the December 14, 2016 order.
AS AND FOR A SECOND CAUSE OF ACTION AGAINST CHERRY HILL
24. Sheepshead is entitled to an award of specific performance against Cherry Hill.
25. Cherry Hill should be compelled to perform its obligations under the Non
Disturbance Agreement, including without limitation paying all rent and additional rent, and any
other sums due under its Sublease (including any funds held by any of its counsel which were
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FILED: KINGS COUNTY CLERK 07/10/2020
08/19/2020 03:10
10:47 PM
AM INDEX NO. 510844/2016
NYSCEF DOC. NO. 563
585 RECEIVED NYSCEF: 07/10/2020
08/19/2020
earmarked for such payments), directly to Sheepshead until and unless Sheepshead informs Cherry
Hill that Lundy's has cured allof itslease defaults.
WHEREFORE, Sheepshead demands judgment as follows:
a) on itsfirstcause of action, an award of a declaratory judgment in itsfavor, judgment
that Cherry Hill's payment of rent, additional rent, and other sums thereafter
becoming due under the Sublease, directly to Sheepshead, would be deemed in
compliance with the December 14, 2016 order;
b) On its second cause of action, an order of specific performance, compelling Cherry
Hill to perform its obligations under the Non Disturbance Agreement, including
without limitation paying all rent and additional rent, and any other sums due under
its Sublease, directly to Sheepshead until and unless Sheepshead informs Cherry
Hill that Lundy's has cured allof itslease default;
c) for such other and further relief as the court deems just and proper including
interest.
Dated: Brooklyn, New York
July 10, 2020
/s/William J. Coury
By: William J. Coury
HAGAN, COURY & ASSOCIATES
Attorneys for Third-Party Defendant
Sheepshead Restaurant Associates Inc.
908 Fourth Avenue
Brooklyn, NY 11232
(718) 788-5052
WCOury aOl.COM
16/53counterclaimagainstcherryhil14
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Preview
FILED: KINGS COUNTY CLERK 07/10/2020 08/19/2020 03:10 10:47 PM AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 563 585 RECEIVED NYSCEF: 07/10/2020 08/19/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------X CHERRY HILL GOURMET, INC., Index No. 510844/2016 Plaintiff, THIRD-PARTY -against- DEFENDANT'S CLAIMS AGAINST PLAINTIFF LUNDY'S MANAGEMENT CORP., CHERRY HILL GOURMET, INC. Defendant. -------------------------------------------------------------X LUNDY'S MANAGEMENT CORP., Defendant and Third-Party Plaintiff, -against- SHEEPSHEAD RESTAURANT ASSOCIATES INC., Third-Party Defendant. -------------------------------------------------------------X Third-Party Defendant Sheepshead Restaurant Associates Inc. ("Sheepshead"), as and for its claims against Plaintiff Cherry Hill Gourmet, Inc. ("Cherry Hill"), alleges as follows: 1. Sheepshead Restaurant Associates Inc. is a New York corporation with itsprincipal office in Brooklyn, NY. 2. Cherry Hill Gourmet, Inc. is a New York corporation with its principal office in Brooklyn, NY. 3. Sheepshead is the owner of the real property located at 1901 Emmons Avenue, Brooklyn, NY ("Premises"). 1 1 of 5 FILED: KINGS COUNTY CLERK 07/10/2020 08/19/2020 03:10 10:47 PM AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 563 585 RECEIVED NYSCEF: 07/10/2020 08/19/2020 4. Sheepshead and defendant/third party plaintiff Lundy's Management Corp.["Lundy's] entered into a net lease ["Overlease"] for the Premises on or about March 9, 1994. 5. Lundy's, as sublandlord, and Cherry Hill, as subtenant, entered into a sublease ["Sublease"] for a portion of the Premises. 6. Cherry Hill is a subtenant of a portion of the Premises pursuant to that Sublease. 7. On or about December 19, 2007, Cherry Hill and Lundy's entered a nondisturbance agreement with Sheepshead ["Nondisturbance Agreement"], for valuable consideration. 8. Lundy's consented to the terms of the Nondisturbance Agreement, and to be bound by those terms, in writing. 9. Paragraph 4 of the Nondisturbance Agreement includes the following language: "If Sublandlord defaults in the payment of any rent, additional rent or other sum due under the Overlease or in the performance of any of Sublandlord's obligations under the Overlease, and such default continues after notice and beyond any applicable cure period provided for in the Overlease, then Subtenant, after receiving a notice from Overlandlord directing Subtenant to do so, shall pay to Overlandlord all rent, additional rent, and other sums thereafter becoming due under the Sublease" 10. On or about March 17, 2020, Sheepshead sent a notice to Lundy's ["Notice of Default"]. 11. The Notice of Default indicated that Lundy's had failed to pay certain rent, additional rent, and late fees in the sum of $96,815.74. 2 2 of 5 FILED: KINGS COUNTY CLERK 07/10/2020 08/19/2020 03:10 10:47 PM AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 563 585 RECEIVED NYSCEF: 07/10/2020 08/19/2020 12. The Notice of Default directed Lundy's to pay those sums on or before March 25, 2020, or else Lundy's would be deemed to have committed an event of default pursuant to the Overlease. 13. Lundy's failed to pay any sums to Sheepshead on any date from March of 2020 to present. 14. Sheepshead has also sent at least one additional notice to Lundy's concerning further defaults in its Overlease, including without limitation Lund's failure to pay rent and additional rent. 15. Lundy's is in default of itsobligations to pay rent and additional rent under the Overlease. 16. On or about May 1, 2020, Sheepshead sent a notice ["Cherry Hill Notice"] pursuant to the Nondisturbance Agreement to Cherry Hill. 17. The Cherry Hill Notice accurately indicated that Lundy's had defaulted in the payment of rent, additional rent, and other sums due under the Overlease. 18. The Cherry Hill Notice directed Cherry Hill to pay all rent, additional rent, and other sums due under the Sublease directly to Sheepshead. 19. Cherry Hill's attorney has informed the third party defendant that Cherry Hill has deposited all or a portion of certain rent, additional rent, and other sums due under the Sublease, with its counsel, including without limitation those sums owed from May, June, and July of 2020, and up to present, in the amount of $48,692.38 per month for a total of $146,077.14. 3 3 of 5 FILED: KINGS COUNTY CLERK 07/10/2020 08/19/2020 03:10 10:47 PM AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 563 585 RECEIVED NYSCEF: 07/10/2020 08/19/2020 20. On or about December 14, 2016 Hon. Ash of the Kings County Supreme Court issued an order which granted Cherry Hill a Yellowstone Injunction. ("December 14, 2016 order.") 21. Pursuant to the December 14, 2016 order, the court indicated in relevant part that Defendant." "Plaintiff shall remain current with allfuture rental/use and occupancy obligations to AND FOR A FIRST CAUSE OF ACTION AGAINST CHERRY HILL 22. Sheepshead is entitled to a declaratory judgment that Cherry Hill is obligated to provide all rent, additional rent, and other sums thereafter becoming due under the Sublease, directly to Sheepshead until and unless Lundy's cures all of its lease defaults. (Nothing in this complaint is to be deemed an admission that Lundy's has the right or ability to cure any lease default.) 23. Sheepshead is entitled to a declaratory judgment that Cherry Hill's payment of rent, additional rent, and other sums thereafter becoming due under the Sublease, directly to Sheepshead, would be deemed in compliance with the December 14, 2016 order. AS AND FOR A SECOND CAUSE OF ACTION AGAINST CHERRY HILL 24. Sheepshead is entitled to an award of specific performance against Cherry Hill. 25. Cherry Hill should be compelled to perform its obligations under the Non Disturbance Agreement, including without limitation paying all rent and additional rent, and any other sums due under its Sublease (including any funds held by any of its counsel which were 4 4 of 5 FILED: KINGS COUNTY CLERK 07/10/2020 08/19/2020 03:10 10:47 PM AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 563 585 RECEIVED NYSCEF: 07/10/2020 08/19/2020 earmarked for such payments), directly to Sheepshead until and unless Sheepshead informs Cherry Hill that Lundy's has cured allof itslease defaults. WHEREFORE, Sheepshead demands judgment as follows: a) on itsfirstcause of action, an award of a declaratory judgment in itsfavor, judgment that Cherry Hill's payment of rent, additional rent, and other sums thereafter becoming due under the Sublease, directly to Sheepshead, would be deemed in compliance with the December 14, 2016 order; b) On its second cause of action, an order of specific performance, compelling Cherry Hill to perform its obligations under the Non Disturbance Agreement, including without limitation paying all rent and additional rent, and any other sums due under its Sublease, directly to Sheepshead until and unless Sheepshead informs Cherry Hill that Lundy's has cured allof itslease default; c) for such other and further relief as the court deems just and proper including interest. Dated: Brooklyn, New York July 10, 2020 /s/William J. Coury By: William J. Coury HAGAN, COURY & ASSOCIATES Attorneys for Third-Party Defendant Sheepshead Restaurant Associates Inc. 908 Fourth Avenue Brooklyn, NY 11232 (718) 788-5052 WCOury aOl.COM 16/53counterclaimagainstcherryhil14 5 5 of 5