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FILED: NASSAU COUNTY CLERK 07/12/2022 02:37 PM INDEX NO. 617063/2019
NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/12/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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DVK REALTY LLC, Index No.: 617063/2019
Plaintiff, AFFIRMATION OF
JEREMY B. HONIG
-against-
CREMB REALTY INC.,
Defendant
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JEREMY B. HONIG, an attorney duly licensed to practice law in the State of New York,
hereby affirms the following:
1. I am a partner with the law firm of Rivkin Radler LLP, attorneys for Plaintiff, DVK
Realty LLC (“Plaintiff” or “Tenant”). I am familiar with the facts set forth in this affirmation based
upon my review of the file, documents and records provided by Plaintiff and my communications
and conversations with Plaintiff’s agents and representatives.
2. This affirmation is respectfully submitted in support of Plaintiff’s cross-motion for
summary judgment and dismissal of the counterclaims of Defendant, Cremb Realty Inc.
(“Defendant” or “Landlord”).
3. This affirmation is also respectfully submitted in opposition to Defendant’s motion
for summary judgment.
NATURE OF ACTION AND SUMMARY OF
THE GROUNDS FOR THE RELIEF REQUESTED
4. Tenant commenced this declaratory judgment action after Landlord refused to
recognize Tenant’s long-term commercial lease expiring in 2033 in a transparent and ill-advised
scheme to extract an unwarranted rent increase from the Tenant.
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5. Landlord’s wholly pre-textual “excuse” for refusing to recognize the Tenant’s lease
is that Tenant’s predecessor, a related entity, improperly “assigned” the lease to Tenant more than
twenty (20) years ago.
6. Tenant’s cross-motion for summary judgment must be granted because the
documentary evidence unequivocally demonstrates that Landlord waived any objection to
Tenant’s tenancy and is estopped from raising any objections to same after acknowledging
Tenant’s tenancy for more than twenty (20) years.
7. As more fully explained in this memorandum of law, the unrefuted documentary
evidence establishes that: (a) Tenant’s predecessor converted to the Tenant entity as part of an
overall corporate restructuring in 1997; (b) In 1998, Tenant’s predecessor expressly informed
Landlord’s predecessor in writing that Tenant would be the tenant under the lease as a result of
such restructuring; (c) Landlord did not object to Tenant being the tenant under the lease for more
than twenty (20) years; (d) Landlord continued to accept rent from Tenant for more than twenty
(20) years without objection; and (e) Landlord corresponded with Tenant multiple times over the
past twenty (20) years.
8. For these same reasons, Defendant’s motion for summary judgment must be
denied.
9. In addition, Defendant’s motion for summary judgment must be denied because
Defendant did not attach copies of any of the pleadings filed in this action to its motion for
summary judgment, thereby rendering its entire motion procedurally defective.
RELEVANT FACTUAL BACKGROUND
10. A full recitation of the relevant factual background is set forth in Plaintiff’s
counterstatement of material facts (“Facts”) and the accompanying affidavit of Bradley King
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(“King Aff.”), which are all fully incorporated herein. Capitalized terms shall have the definition
set forth in the King Aff. unless otherwise stated.
RELEVANT PROCEDURAL HISTORY
11. Plaintiff commenced this action by summons and verified complaint dated
December 9, 2019 (the “Complaint”). A copy of the Complaint is attached as Exhibit “A”.
12. As set forth in the Complaint, Plaintiff is seeking a judgment declaring that: (a)
Plaintiff is the tenant under the valid and enforceable Lease with Landlord; and (b) Plaintiff has
duly exercised its options under the Lease extending the expiration date of the Lease to December
31, 2033. (Ex. “A”, ¶34).
13. Defendant filed a verified answer and counterclaims dated December 27, 2019 (the
“Answer”). A copy of the Answer is attached as Exhibit “B”.
14. Defendant alleges in its counterclaim that it is entitled to a judgment declaring that:
(a) Plaintiff is not a tenant under any valid and enforceable Lease with Landlord; (b) that any
attempt by Plaintiff to exercise any options is void; (c) that Plaintiff is not and was not able to
create, transfer or assign any possessory, occupancy rights, or any other interests to any third party
in the Property; (d) that any attempted transfer or creation of possession or occupancy rights to a
third party is void; (e) that any attempted transfer or creation of security interest in the Property to
a third party is void; and (f) that Plaintiff and any third party who claim any rights to the
Defendant's Property must vacate said Property and execute all necessary documents to remove
any encumbrance against said premises and Property. (Ex. “B”, pg. 8-9).
15. Plaintiff filed a verified reply to Defendant’s counterclaim on January 10, 2020 (the
“Reply”), raising affirmative defenses of waiver, estoppel, and unclean hands. A copy of the Reply
is attached as Exhibit “C”.
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ADDITIONAL EXHIBITS
16. A copy of a deed dated September 19, 2000 and a correction deed dated February
12, 2001, whereby Edward T. Robinson, III, as executor of James Frontero, transferred the
Premises to Defendant and Richard Fronter, Jr. are collectively attached as Exhibit “D”.
17. A copy of a letter from my partner, Michael Heller, to Defendant’s counsel, James
F. O’Brien (“O’Brien”), dated January 16, 2019, is attached as Exhibit “E”.
18. A copy of O’Brien’s letter to Heller dated April 30, 2019 is attached as Exhibit
“F”.
19. A copy of O’Brien’s letter to me dated October 3, 2019 is attached as Exhibit “G”.
20. A copy of my letter to O’Brien dated September 27, 2019 is attached as Exhibit
“H”.
21. Attached as Exhibit “I” is the deposition transcript of Rose Ann Beluso dated June
15, 2021.
22. I sent an e-mail to Mr. O’Brien on May 24, 2022 advising that Plaintiff would be
cross-moving for summary judgment. (NYSCEF Doc.#62). I did not receive any objection from
Mr. O’Brien.
CONCLUSION
23. Based on the supporting papers and exhibits, Plaintiff respectfully request that the
Court issue an order: (i) denying Defendant’s motion for summary judgment in its entirety; (ii)
granting Plaintiff’s cross-motion for summary judgment in its entirety; and (iii) such other and
further relief in favor of Plaintiff as this Court deems just, proper, and equitable.
Dated: New York, New York
July 12, 2022
Jeremy B. Honig
JEREMY B. HONIG
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ATTORNEY CERTIFICATION
To the best of my knowledge, information and belief, formed after an inquiry reasonable
under the circumstances, the presentation and filing of the papers herein are not “frivolous, as
defined in subsection (c) of section 130-1.1 of NYCRR. The document to which this certification
is attached complies with the word count limit set forth in Section 202.8-b of NYCRR and contains
962 words, excluding the caption and signature block.
Dated: New York, New York
July 12, 2022
Jeremy B. Honig
Jeremy B. Honig
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FILED: NASSAU COUNTY CLERK 07/12/2022 02:37 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/12/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -----------------------------------------------------------------------x DVK REALTY LLC, Index No.: 617063/2019 Plaintiff, AFFIRMATION OF JEREMY B. HONIG -against- CREMB REALTY INC., Defendant ------------------------------------------------------------------------x JEREMY B. HONIG, an attorney duly licensed to practice law in the State of New York, hereby affirms the following: 1. I am a partner with the law firm of Rivkin Radler LLP, attorneys for Plaintiff, DVK Realty LLC (“Plaintiff” or “Tenant”). I am familiar with the facts set forth in this affirmation based upon my review of the file, documents and records provided by Plaintiff and my communications and conversations with Plaintiff’s agents and representatives. 2. This affirmation is respectfully submitted in support of Plaintiff’s cross-motion for summary judgment and dismissal of the counterclaims of Defendant, Cremb Realty Inc. (“Defendant” or “Landlord”). 3. This affirmation is also respectfully submitted in opposition to Defendant’s motion for summary judgment. NATURE OF ACTION AND SUMMARY OF THE GROUNDS FOR THE RELIEF REQUESTED 4. Tenant commenced this declaratory judgment action after Landlord refused to recognize Tenant’s long-term commercial lease expiring in 2033 in a transparent and ill-advised scheme to extract an unwarranted rent increase from the Tenant. 1 1 of 5 FILED: NASSAU COUNTY CLERK 07/12/2022 02:37 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/12/2022 5. Landlord’s wholly pre-textual “excuse” for refusing to recognize the Tenant’s lease is that Tenant’s predecessor, a related entity, improperly “assigned” the lease to Tenant more than twenty (20) years ago. 6. Tenant’s cross-motion for summary judgment must be granted because the documentary evidence unequivocally demonstrates that Landlord waived any objection to Tenant’s tenancy and is estopped from raising any objections to same after acknowledging Tenant’s tenancy for more than twenty (20) years. 7. As more fully explained in this memorandum of law, the unrefuted documentary evidence establishes that: (a) Tenant’s predecessor converted to the Tenant entity as part of an overall corporate restructuring in 1997; (b) In 1998, Tenant’s predecessor expressly informed Landlord’s predecessor in writing that Tenant would be the tenant under the lease as a result of such restructuring; (c) Landlord did not object to Tenant being the tenant under the lease for more than twenty (20) years; (d) Landlord continued to accept rent from Tenant for more than twenty (20) years without objection; and (e) Landlord corresponded with Tenant multiple times over the past twenty (20) years. 8. For these same reasons, Defendant’s motion for summary judgment must be denied. 9. In addition, Defendant’s motion for summary judgment must be denied because Defendant did not attach copies of any of the pleadings filed in this action to its motion for summary judgment, thereby rendering its entire motion procedurally defective. RELEVANT FACTUAL BACKGROUND 10. A full recitation of the relevant factual background is set forth in Plaintiff’s counterstatement of material facts (“Facts”) and the accompanying affidavit of Bradley King 2 2 of 5 FILED: NASSAU COUNTY CLERK 07/12/2022 02:37 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/12/2022 (“King Aff.”), which are all fully incorporated herein. Capitalized terms shall have the definition set forth in the King Aff. unless otherwise stated. RELEVANT PROCEDURAL HISTORY 11. Plaintiff commenced this action by summons and verified complaint dated December 9, 2019 (the “Complaint”). A copy of the Complaint is attached as Exhibit “A”. 12. As set forth in the Complaint, Plaintiff is seeking a judgment declaring that: (a) Plaintiff is the tenant under the valid and enforceable Lease with Landlord; and (b) Plaintiff has duly exercised its options under the Lease extending the expiration date of the Lease to December 31, 2033. (Ex. “A”, ¶34). 13. Defendant filed a verified answer and counterclaims dated December 27, 2019 (the “Answer”). A copy of the Answer is attached as Exhibit “B”. 14. Defendant alleges in its counterclaim that it is entitled to a judgment declaring that: (a) Plaintiff is not a tenant under any valid and enforceable Lease with Landlord; (b) that any attempt by Plaintiff to exercise any options is void; (c) that Plaintiff is not and was not able to create, transfer or assign any possessory, occupancy rights, or any other interests to any third party in the Property; (d) that any attempted transfer or creation of possession or occupancy rights to a third party is void; (e) that any attempted transfer or creation of security interest in the Property to a third party is void; and (f) that Plaintiff and any third party who claim any rights to the Defendant's Property must vacate said Property and execute all necessary documents to remove any encumbrance against said premises and Property. (Ex. “B”, pg. 8-9). 15. Plaintiff filed a verified reply to Defendant’s counterclaim on January 10, 2020 (the “Reply”), raising affirmative defenses of waiver, estoppel, and unclean hands. A copy of the Reply is attached as Exhibit “C”. 3 3 of 5 FILED: NASSAU COUNTY CLERK 07/12/2022 02:37 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/12/2022 ADDITIONAL EXHIBITS 16. A copy of a deed dated September 19, 2000 and a correction deed dated February 12, 2001, whereby Edward T. Robinson, III, as executor of James Frontero, transferred the Premises to Defendant and Richard Fronter, Jr. are collectively attached as Exhibit “D”. 17. A copy of a letter from my partner, Michael Heller, to Defendant’s counsel, James F. O’Brien (“O’Brien”), dated January 16, 2019, is attached as Exhibit “E”. 18. A copy of O’Brien’s letter to Heller dated April 30, 2019 is attached as Exhibit “F”. 19. A copy of O’Brien’s letter to me dated October 3, 2019 is attached as Exhibit “G”. 20. A copy of my letter to O’Brien dated September 27, 2019 is attached as Exhibit “H”. 21. Attached as Exhibit “I” is the deposition transcript of Rose Ann Beluso dated June 15, 2021. 22. I sent an e-mail to Mr. O’Brien on May 24, 2022 advising that Plaintiff would be cross-moving for summary judgment. (NYSCEF Doc.#62). I did not receive any objection from Mr. O’Brien. CONCLUSION 23. Based on the supporting papers and exhibits, Plaintiff respectfully request that the Court issue an order: (i) denying Defendant’s motion for summary judgment in its entirety; (ii) granting Plaintiff’s cross-motion for summary judgment in its entirety; and (iii) such other and further relief in favor of Plaintiff as this Court deems just, proper, and equitable. Dated: New York, New York July 12, 2022 Jeremy B. Honig JEREMY B. HONIG 4 4 of 5 FILED: NASSAU COUNTY CLERK 07/12/2022 02:37 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/12/2022 ATTORNEY CERTIFICATION To the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation and filing of the papers herein are not “frivolous, as defined in subsection (c) of section 130-1.1 of NYCRR. The document to which this certification is attached complies with the word count limit set forth in Section 202.8-b of NYCRR and contains 962 words, excluding the caption and signature block. Dated: New York, New York July 12, 2022 Jeremy B. Honig Jeremy B. Honig 5 5898695.v1 5 of 5