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FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/09/2022
EXHIBIT A
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NYSCEF DOC. NO. 1
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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WASSERSTEIN ENTERPRISES LLC, : Index No. __________/22
:
Plaintiff, : SUMMONS
:
-against- : Plaintiff designates New York
: County as the place of trial.
JOSEPH A. PETRILLO, JR., :
: The basis of venue is the location of
Defendants. : the subject premises.
:
–––––––––––––––––––––––––––––– X
To the above-named defendants:
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve
a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of
appearance on the plaintiff’s attorneys within twenty (20) days after service of this summons,
exclusive of the day of service; or within thirty (30) days after completion of service where the
service is made in any other manner than by personal delivery within the state; and in case of your
failure to appear or answer, judgment will be taken against you by default, for the relief demanded
in the complaint.
Dated: New York, New York ROSENBERG & ESTIS, P.C.
September 16, 2022 Attorneys for Plaintiff
By:
733 Third Avenue
New York, New York 10017
(212) 867-6000
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TO: JOSEPH A. PETRILLO, JR.,
1736A Bay Isle Drive
Point Pleasant Boro, NJ 08742-5210
JOSEPH A. PETRILLO, JR
2201 River Road, Apt. 3102
Point Pleasant Boro, NJ 08742-2284
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
–––––––––––––––––––––––––––––– X
WASSERSTEIN ENTERPRISES LLC, : Index No. ________/22
:
Plaintiff, : COMPLAINT
:
-against- : Plaintiff designates New York
: County as the place of trial.
JOSEPH A. PETRILLO, JR., :
: The basis of venue is the location of
Defendants. : the subject premises.
:
–––––––––––––––––––––––––––––– X
Plaintiff WASSERSTEIN ENTERPRISES LLC (“Plaintiff” or “Landlord”), by its
attorneys, Rosenberg & Estis, P.C., as and for its Complaint against defendant JOSEPH A.
PETRILLO, JR, alleges as follows:
NATURE OF THE ACTION
1. This is an action for damages and attorneys’ fees based upon a breach of a guaranty
agreement by defendant JOSEPH A. PETRILLO, JR (“Guarantor”) and a commercial lease by
PRESHER FITNESS NY LLC (“Tenant”) stemming from Tenant’s continuing failure and refusal
to pay rent and additional rent due to Landlord under Tenant’s commercial lease.
FACTS
A. Parties
2. Landlord is a Delaware limited liability company authorized to transact business in
the State of New York with a business address at c/o ABS Partners Real Estate, LLC, 200 Park
Avenue South, New York, New York 10003.
3. Landlord is also the owner and landlord of the building known as and located at
113-133 West 18th Street, New York, New York (the “Building”).
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4. Upon information and belief, Tenant is a New York limited liability company with
a business address at c/o Taj Bailey at 655 E. 14th Street, Suite 10C, New York, New York 10009.
5. Upon information and belief, Guarantor is a natural person residing at 1736A Bay
Isle Drive, Point Pleasant Boro, NJ 08742-5210
B. The Lease
6. Tenant is the tenant of office space in the Building (the “Premises”) pursuant to an
Office Lease dated August 24, 2018 (the “Original Lease”), by and between Landlord, as landlord,
and Tenant, as tenant, which Original Lease was modified by that certain Rent Deferral Agreement
dated as of April 29, 2020 (the “Modification”), as amended by a Second Lease Modification
Agreement made as of “the ___ day of October 2020” (the “Second Modification”, collectively
with the Original Lease and the Modification, the “Lease”).1
7. The Lease term commenced on August 24, 2018 and is scheduled to expire on
September 30, 2029 (the “Term”).
I. Fixed Rent
8. Section 2.02 of the Original Lease requires Tenant to pay Landlord fixed rent for
the Premises (“Fixed Rent”), pursuant to the schedule set forth in Section 2.02(a) of the Original
Lease, in equal monthly installments, in advance, no later than the first day of each calendar month
during the Term, without any set-off or deduction whatsoever.
9. Pursuant to Section 2.02 of the Original Lease, the Fixed Rent due and owed by
Tenant for the Premises is: (i) $35,295.08 per month for the Lease Months from 44 through 55.
10. Section 3 of the First Modification, provides in relevant part that:
Landlord and Tenant hereby agree that (a) Tenant's
monthly installment of Fixed Rent due for the
Premises for the month of May, 2020 in the amount
1
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them under the Lease.
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of $32,300.00, (b) Tenant's Sprinkler Charge due for
the Premises for the month of May, 2020 in the
amount of $475.00, and (c) Tenant's monthly
installment due for the Premises for the month of
May, 2020 on account of the Tax Payment in the
amount of $860.17 (the total of such amounts due
under clauses (a) - (c) equaling $33,635.17 and
being, collectively, referred to herein as the
"Deferred Rent") shall be deferred, and instead of
being due and payable on May 1, 2020, such
Deferred Rent shall be repaid in twelve (12) equal
monthly installments of $2,802.93, with each
installment being due and payable together with the
monthly installments of Fixed Rent due and payable
on the first (1st) day of each month commencing
September 1, 2020. Each monthly installment of
Deferred Rent shall be paid in full when due as stated
herein without notice or demand and without any
abatement, set-off or adjustment. Notwithstanding
the foregoing, upon the occurrence of any Event of
Default, in addition to all other remedies that
Landlord may have under the Lease and applicable
law, the entire unpaid balance of the Deferred Rent
shall become immediately due and payable.
11. Section 2 of the Second Modification, provides in relevant part that:
Tenant's monthly installments of Fixed Rent due
under the Original Lease for the months of October,
2020 through March, 2021 shall be subject to the
reductions set forth below (it being expressly agreed
that nothing herein shall modify or relieve Tenant of
any of its other past due obligations or of any of its
other payment and performance obligations under
the Original Lease, including, without limitation, the
payment of other Additional Charges as and when
due under the Original Lease): ... (ii) during the
period from November 1, 2020 through March 31,
2021, the monthly installments of Fixed Rent shall
be reduced by fifty (50%) percent.
12. Notwithstanding the foregoing to the contrary, upon the occurrence of any Event
of Default, in addition to all other remedies that Landlord may have under the Original Lease and
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applicable law, all Fixed Rent reduced under this Agreement shall become immediately due and
payable.
II. Additional Rent
11. Pursuant to Section 2.03 of the Original Lease, “Additional Charges” or Additional
Rent” is defined as:
“Tax Payments and all sums of money, other than
Fixed Rent, at any time payable by Tenant under this
Lease, all of which Additional Charges shall be
deemed to be rent, which Additional Rent shall be
payable within thirty (30) days after rendition of bills
therefor and shall be accompanied by reasonable
back-up documentation for the item of Additional
Rent in question, unless other payment dates are
expressly provided herein.”
12. Base Taxes are defined in Section 2.04 of the Original Lease as “[t]axes for the Tax
Year commencing on July 1, 2018, as finally determined, less any Bid Taxes and the component
of Taxes described in Section 2.04(b)(iii) that, in each case, are attributable to such Tax Year”
(“Base Tax Amount”). “Taxes” means (i) the real estate taxes, vault taxes, real estate assessments
and special assessments levied, assessed or imposed upon or with respect to the Tax Lot.
13. Pursuant to Section 2.04 (d) of the Lease, Tenant’s Share is 4.26 percent.
14. Section 3.01 (c) of the Original Lease, pertaining to Submetered Electric, provides,
in pertinent part, that:
“In the event that, and for so long as, the Premises
are submetered pursuant to this Section 3.01(c),
Landlord shall, from time to time but not more often
than monthly, furnish Tenant with an invoice
indicating the period during which the Usage was
measured and the amount of Tenant's Cost payable
by Tenant to Landlord for such period. Within thirty
(30) days after receipt of each such invoice, Tenant
shall pay the amount of Tenant's Cost set forth
thereon to Landlord as Additional Rent. In addition,
if any tax is imposed upon Landlord by any
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municipal, state or federal agency or subdivision
with respect to the purchase, sale or resale of
electrical energy supplied to Tenant hereunder,
Tenant covenants and agrees that, where permitted
by law, such taxes shall be passed on to, included in
the bill to and paid by, Tenant to Landlord, as
Additional Rent.”
15. Section 4.06 (c), pertaining to fixed Sprinkler Supervisory Services, provides, in
pertinent part,
“…thereafter maintain the sprinkler system within
the Premises (regardless of whether same was
furnished, installed and/or connected by or on behalf
of Tenant) in compliance with all Laws, including
the performance of any changes, additions and
repairs thereto or replacements thereof. Tenant shall
pay to Landlord, as Additional Rent, on the first day
of each month during the term of this Lease, the
amount of Four Hundred Seventy-Five Dollars
($475.00) in consideration for the sprinkler
supervisory services provided by or on behalf of
Landlord.”
III. Late Fees
16. Section 2.06 of the Original Lease provides, in pertinent part, that:
“If Tenant fails to pay any Rent within five (5) days
from when same is due, Tenant shall pay to
Landlord, as Additional Charges, a late fee equal to
five (5%) percent of the overdue amount. In addition
to such late fee, if Tenant fails to pay any Rent within
five (5) days from when same is due, Tenant shall
pay interest thereon from the date when such Rent
became due to the date of Landlord's receipt thereof
at the Interest Rate.”
IV. Holdover Fees
17. Section 6.10(b) of the Original Lease provides in pertinent part, that:
“If Tenant holds over without the consent of
Landlord after expiration or termination of this
Lease, Tenant shall (A) pay as holdover rental for
each month (or portion thereof) of the holdover
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tenancy an amount equal to 150% for the first thirty
(30) days, and 200% thereafter of the Rent which
Tenant was obligated to pay for the month
immediately preceding the end of the Term.”
V. Attorneys’ Fees
18. Section 6.11 of the Original Lease provides, in pertinent part, that:
“…If either Landlord or Tenant retains an attorney
and commences a legal proceeding as a result of a
breach of any covenant of this Lease by the other
party or for any other relief against the other party
pertaining to this Lease or the relationship of
Landlord and Tenant hereunder, or is required to
defend any such action or proceeding, unless the
judgment or award in such legal action or proceeding
shall provide otherwise, the non-prevailing party
shall pay to the prevailing party all reasonable costs,
expenses and reasonable attorneys' fees and
disbursements that the prevailing party reasonably
incurred in connection therewith.”
C. The Guaranty
19. As a material inducement for Landlord to enter into the Lease with Tenant,
Guarantor executed and delivered a Guaranty agreement dated August 24, 2018 (the “Guaranty”)
to Landlord.
20. Landlord would not have entered into the Lease with Tenant unless Guarantor
executed and delivered the Guaranty to Landlord.
21. Paragraph 1 of the Guaranty provides, in pertinent part, that Guarantor:
“hereby unconditionally and irrevocably guarantees
to [Landlord], its successors and assigns the full and
prompt: (i) payment of the Base Rent, Additional
Rent (as such terms are defined in the Lease) and all
other charges payable by Tenant, its successors and
assigns under or in any way relating to the Lease
through and including the Termination Date (as
hereinafter defined); and (ii) Guarantor hereby
covenants and agrees to and with [Landlord], that if
default shall at any time be made by Tenant or its
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successors or assigns, in the payment of any Base
Rent, Additional Rent or other charges due under the
Lease in respect of any time periods occurring on or
prior to the date.”
22. Paragraph 1 also states,
“Guarantor hereby covenants and agrees to and with
[Landlord] that if default shall at any time be made
by Tenant or its successors or assigns, in the payment
of any Base Rent, Additional Rent or other charges
due under the Lease in respect of any time periods
occurring on or prior to the date (the "Termination
Date")….Guarantor, in each and every instance, shall
and will forthwith pay such Base Rent, Additional
Rent and other charges to Landlord and any arrears
thereof, and shall and will forthwith faithfully
perform and fulfill all of such covenants, terms,
conditions and agreements, and will forthwith pay to
Landlord all damages and expenses of any kind or
nature that may arise in consequence of any such
default by Tenant or its successors or assigns under
the Lease, including without limitation, all
reasonable attorneys' fees and disbursements
incurred by Landlord or caused by or in any way
related to any such default and/or the enforcement of
this Guaranty.”
23. Paragraph 2 of the Guaranty provides that,
“For the purposes of this Guaranty, "Actual Vacate
Date" shall mean the date on which all of the
following conditions are simultaneously satisfied:
Tenant has (1) vacated and delivered to [Landlord]
possession of the Premises free and clear of all
tenants, subtenants, licensees, concessionaires and
other occupants, and free and clear of any rights and
claims of rights (other than rights and claims of right
of [Landlord]) to possess, occupy or otherwise use
the Premises or any portion thereof; (2) vacated and
delivered to [Landlord] possession of the Premises in
accordance with all of the applicable provisions of
the Lease, as if the Term (as defined in the Lease)
had expired (including, but not limited to, the
removal from the Premises of all property in which
Tenant or any others (other than [Landlord]) have
any rights, but excluding such property as Tenant is
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required or permitted not to remove from the
Premises); (3) delivered to [Landlord] all keys to the
Premises; (4) cured and removed from the public
record all violations resulting from any action or
omission of Tenant; (5) paid in full for work
performed by, or on behalf of Tenant, and paid in full
for all materials and supplies furnished to the
Premises by, or on behalf of, Tenant and delivered to
[Landlord] lien waivers (in recordable form) in
respect of all such work, materials and supplies; (6)
satisfied and removed from the public record all liens
and judgments caused by, resulting from, or arising
out of, any work claimed to have been done for, or
materials or supplies furnished to, or in connection
with any other action or omission of, Tenant.”
24. Paragraph 3 of the Guaranty provides that,
“For the purposes of this Guaranty, "Vacate Notice
Date" shall mean the date which is four (4) months
after the date on which Tenant gives [Landlord]
written notice (in accordance with the applicable
provisions of the Lease) of Tenant's intention to (1)
have the Premises and the possession thereof so
vacated and surrendered, (2) so deliver to [Landlord]
all keys to the Premises, and (3) so satisfy and
remove all such liens and judgments. Guarantor
hereby acknowledges that nothing contained in this
Guaranty shall be deemed [Landlord’s] consent to
Tenant's vacating or surrendering possession of the
Premises prior to the end of the Term or [Landlord’s]
waiver of Tenant's obligations or liabilities
thereunder.”
25. Paragraph 4 of the Guaranty provides, in pertinent part, as follows:
“This Guaranty is an irrevocable, absolute and
unconditional guaranty of payment and of
performance. It shall be enforceable against
Guarantor without the necessity of any suit or
proceedings on [Landlord’s] part of any kind or
nature whatsoever against Tenant or its successors or
assigns, and without the necessity of resorting to any
security under the Lease or any need to give notice
of nonpayment, nonperformance or nonobservance
or of any notice of acceptance of this Guaranty or of
any other notice or demand to which Guarantor
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might otherwise be entitled, all of which Guarantor
hereby expressly waives; and Guarantor hereby
expressly agrees that the validity of this Guaranty
and the obligations of Guarantor hereunder shall in
no way be terminated, affected, diminished or
impaired by reason of the assertion or the failure to
assert by [Landlord] against Tenant, or against
Tenant's successors or assigns, any of the rights or
remedies reserved to [Landlord] pursuant to the
provisions of the Lease.”
26. Paragraph 5 of the Guaranty provides, in pertinent part, that:
“Other than the defense of full payment, performance
and satisfaction of the Guarantor's obligations
hereunder, Guarantor hereby absolutely,
unconditionally and irrevocably waives any and all
rights it may have to assert any defense, set-off,
counterclaim or cross-claim of any nature
whatsoever with respect to this Guaranty or the
obligations or liabilities of Guarantor under this
Guaranty, in any action or proceeding brought by the
holder hereof to enforce the obligations or liabilities
of Guarantor under this Guaranty...”
27. Paragraph 6 of the Guaranty provides that:
“In addition to and not in limitation of any provision
hereof, Guarantor confirms its intent, agreement and
understanding to be primarily obligated under the
Lease through and including the Termination Date,
as if it had executed the same as Tenant.”
28. Paragraph 8 of the Guaranty provides, in pertinent part, that:
“Recovery may be had against Guarantor in such
action or proceeding or in any independent action or
proceeding against Guarantor without [Landlord]
first pursuing or exhausting any remedy or claim
against Tenant or its heirs, executors, administrators,
successors or assigns or any other remedy or claim
under any other security for, or guaranty of, the
obligations or liabilities of Tenant under the Lease.
In any jurisdiction, Guarantor shall conclusively be
bound by the judgment or order in any such action or
proceeding by or against Tenant (wherever brought)
as if Guarantor were a party to such action or
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proceeding even though Guarantor is not joined as a
party in such action or proceeding.”
29. Paragraph 12 of the Guaranty provides in pertinent part,
“As a special inducement to [Landlord] to make and
enter into the Lease and in consideration
thereof….(ii) this Guaranty has been duly executed
and delivered by Guarantor and constitutes the legal,
valid and binding obligation of Guarantor;…. (iv)
Guarantor hereby submits to the jurisdiction of the
courts (city, state and federal) located in the City,
County and State of New York and to service of
process as provided by the New York Civil Practice
Laws and Rules in connection with any action or
proceeding brought on, under, or by virtue of this
Guaranty.”
30. Paragraph 13 of the Guaranty provides in pertinent part,
“As a further inducement to [Landlord] to make and
enter into the Lease and in consideration thereof,
Guarantor covenants and agrees that in any action or
proceeding brought on, under or by virtue of this
Guaranty, Guarantor shall and does hereby waive
trial by jury. This Guaranty shall be enforced and
construed in accordance with the internal laws of the
State of New York (without regard to principles of
c