Preview
FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/09/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
–––––––––––––––––––––––––––––X
:
WASSERSTEIN ENTERPRISES LLC, : Index No. 653391/2022
:
Plaintiff, :
AFFIDAVIT OF
:
-against- :
JENIFER S. BROOKS
:
JOSEPH A. PETRILLO, JR.,
: Motion Seq. No. 001
Defendant. :
:
–––––––––––––––––––––––––––––X
STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK )
JENIFER S. BROOKS, being duly sworn, deposes and says:
1. I am the managing member of Wasserstein Enterprises LLC (“Plaintiff” or
“Landlord”), the plaintiff in this action (this “Action”). I submit this affidavit in support of
plaintiff’s motion for an order:
(a) Pursuant to CPLR 3212, awarding Plaintiff summary judgment against
defendant Joseph A. Petrillo, Jr., (“Defendant” or “Guarantor”) on the
first cause of action in Plaintiff’s complaint dated September 16, 2022 (the
“Complaint”), and awarding Plaintiff a money judgment against Guarantor
in an amount to be determined by the Court, but no less than $1,448,067.40,
plus interest;
(b) Pursuant to CPLR 3212 and/or CPLR 3211(b), dismissing Guarantor’s
affirmative defenses asserted in his answer dated November 2, 2022
(“Answer”);
(c) Awarding Plaintiff its attorneys’ fees, costs and disbursements, in an
amount to be subsequently determined upon submission to the Court or at a
hearing; and
(d) For such other and further relief as this Court deems just and proper.
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PARTIES
2. Plaintiff is and was at all relevant times a foreign limited liability company,
organized under the laws of the State of Delaware and authorized to do business in the State of
New York.
3. Upon information believed, defendant Joseph A. Petrillo, Jr. (“Guarantor” or
“Defendant”) is a natural person residing in Point Pleasant, New Jersey.
PROCEDURAL BACKGROUND
4. For a full recitation of the procedural background, the Court is respectfully referred
to the accompanying affirmation of Alex M. Estis dated December 9, 2022 (the “Estis
Affirmation”).
FACTS
A. The Lease
5. Landlord is the owner and landlord of the building known as and located at 113-133
West 18th Street, New York, New York (the “Building”). A certified copy of the Deed to the
Building is annexed hereto as Exhibit “A”.
6. Presher Fitness NY LLC (“Tenant”) entered into possession of certain rentable
space on the basement level (the “Premises”) of the Building, as shown on the floor plan annexed
to the Original Lease (as defined below) as Exhibit “B”, pursuant to a written Office Lease dated
August 24, 2018 (the “Original Lease”), by between Landlord, as landlord and Tenant as tenant,
which the Original Lease was modified by that certain Rent Deferral Agreement dated as of
April 29, 2020 (the “First Modification”), as amended by a Second Lease Modification
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Agreement made as of “the _____ day of October 2020” (the “Second Modification,” collectively
with the Original Lease and the First Modification, the “Lease”).1
7. The Lease term commenced on August 24, 2018 and was originally scheduled to
expire on September 30, 2029 (the “Term”). A true copy of the Original Lease, the First
Modification and the Second Modification are annexed hereto, collectively, as Exhibit “B”.
THE LEASE
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. See Exhibit “B”.
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.
See Id.
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 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
1
Capitalized terms used but not otherwise defined herein shall have the same meanings ascribed to them under the
Lease.
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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.
See Id.
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.
See Id.
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
applicable law, all Fixed Rent reduced under this Agreement shall become immediately due and
payable. See Id.
II. Additional Rent
13. 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.”
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See Id.
14. 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. See Id.
15. Pursuant to Section 2.04 (d) of the Lease, Tenant’s Share is 4.26 percent. See Id.
16. 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 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.”
See Id.
17. 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.”
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See Id.
III. Late Fees
18. 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.”
See Id.
THE LEASE
I. Holdover Fees
19. 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
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.”
See Id.
II. Attorneys’ Fees
20. 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.”
See Id.
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THE GUARANTY
21. 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. A copy of the Guaranty is annexed hereto as Exhibit “C”.
22. Landlord would not have entered into the Lease with Tenant unless Guarantor
executed and delivered the Guaranty to Landlord as the Guaranty was “an inducement for the
granting, execution and delivery of the [Lease]. See Id.
23. Under the terms of the Guaranty, Guarantor unconditionally agreed to guarantee
the performance by Tenant of all the terms, covenants, conditions, obligations and agreements
contained in the Lease on the Tenant’s part to be performed (collectively, the “Obligations”).
Landlord entered into the Lease in reliance on the Guaranty and the Obligations contained therein.
See Id.
24. Pursuant to the terms of the Guaranty, the Guarantor is liable to Plaintiff for all
payments that Tenant is obligated to pay the Plaintiff under the terms of the Lease, including but
not limited to, the Arrears and disbursements incurred and to be incurred by Landlord with respect
to: (a) any default by Tenant under the Lease, and (b) Landlord’s enforcement of the Guaranty.
See Id.
25. 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 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.”
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See Id.
26. 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.”
See Id.
27. 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 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
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supplies furnished to, or in connection with any other action or
omission of, Tenant.”
See Id.
28. 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.”
See Id.
29. 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 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.”
See Id.
30. 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
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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...”
See Id.
31. 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.”
See Id.
32. 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 proceeding even though
Guarantor is not joined as a party in such action or proceeding.”
See Id.
33. Paragraph 12 of the Guaranty provides, in pertinent part, that:
“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.”
See Id.
34. Paragraph 13 of the Guaranty provides:
“As a further inducement to Owner to make and enter into the Lease
and in consideration thereof, Guarantor covenants and agrees that in
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any action or proceeding brough on, under or by virtue of thie
Guaranty, Guarantor shall and does hereby waive trial by jury. This
Guaranty shall be enforced in accordance with the internal laws of
the State of New York (without regard to principles of conflicts of
law) and shall be binding upon Guarantor, their respective heirs,
legal representatives, successors and assigns and shall inure to the
benefit of Owner, its heirs, legal representatives and assigns.”
See Id.
35. In breach of the Guaranty, Guarantor failed to pay Landlord Rent for the period
May 15, 2020 through and including September 1, 2022, as Tenant is currently in arrears to
Landlord in the amount of $1,448,067.40 (the “Rent Arrears”) representing unpaid Rent and Use
and Occupancy. A copy of the Tenant’s rent ledger as kept and maintained by Landlord in
Landlord’s ordinary course of business is annexed hereto as Exhibit “D”. As a result of
Guarantor’s breach of the Guaranty, Landlord has incurred damages and is entitled to a money
judgment in Landlord’s favor, and against Guarantor, in an amount to be determined by the Court,
but not less than $1,448,067.40, plus interest.
36. Upon the default triggering full recourse against Guarantor, Guarantor failed to pay
sums due under the Lease. Guarantor has not made any payments on account of the Tenant as
required by the Lease. See Id. Landlord has therefore proven the existence of the Guaranty, the
underlying debt, and Guarantor’s failure to perform, which is all Landlord needs to prove to
establish its entitlement to judgment as a matter of law.
37. Furthermore, the Guaranty allows Landlord to recover all of its expenses, inclusive
of reasonable attorneys’ fees, incurred by Landlord in connection with its enforcement of the
Guaranty. See Exhibit “C”. Landlord has incurred and will continue to incur fees, costs and
disbursements, including attorneys’ fees, in connection with its enforcement of the Guaranty. As
such, Landlord is entitled to a money judgment, in its favor and against Guarantor, for Landlord’s
attorneys’ fees, costs, disbursements and expenses incurred in connection with Landlord’s
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enforcement of the Guaranty, in an amount to be determined by the Court, but believed to be not
less than $25,000.00.
38. Accordingly, it is respectfully requested that Landlord’s motion be granted in all
respects.
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Statement of Compliance with Rule 17
I hereby certify that this Affidavit of Jenifer S. Brooks complies with the word limit of Rule 17 of
the Rules of the Commercial Division of the Supreme Court, 22 NYCRR 202.70. I hereby further
certify that, according to the word count feature of Microsoft Word, this document is 3,580 words
in length, inclusive of footnotes.
__________________________
Alex M. Estis
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FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/09/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK –––––––––––––––––––––––––––––X : WASSERSTEIN ENTERPRISES LLC, : Index No. 653391/2022 : Plaintiff, : AFFIDAVIT OF : -against- : JENIFER S. BROOKS : JOSEPH A. PETRILLO, JR., : Motion Seq. No. 001 Defendant. : : –––––––––––––––––––––––––––––X STATE OF NEW YORK ) : ss. COUNTY OF NEW YORK ) JENIFER S. BROOKS, being duly sworn, deposes and says: 1. I am the managing member of Wasserstein Enterprises LLC (“Plaintiff” or “Landlord”), the plaintiff in this action (this “Action”). I submit this affidavit in support of plaintiff’s motion for an order: (a) Pursuant to CPLR 3212, awarding Plaintiff summary judgment against defendant Joseph A. Petrillo, Jr., (“Defendant” or “Guarantor”) on the first cause of action in Plaintiff’s complaint dated September 16, 2022 (the “Complaint”), and awarding Plaintiff a money judgment against Guarantor in an amount to be determined by the Court, but no less than $1,448,067.40, plus interest; (b) Pursuant to CPLR 3212 and/or CPLR 3211(b), dismissing Guarantor’s affirmative defenses asserted in his answer dated November 2, 2022 (“Answer”); (c) Awarding Plaintiff its attorneys’ fees, costs and disbursements, in an amount to be subsequently determined upon submission to the Court or at a hearing; and (d) For such other and further relief as this Court deems just and proper. RE\04670\0109\4674958v1 1 of 14 FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/09/2022 PARTIES 2. Plaintiff is and was at all relevant times a foreign limited liability company, organized under the laws of the State of Delaware and authorized to do business in the State of New York. 3. Upon information believed, defendant Joseph A. Petrillo, Jr. (“Guarantor” or “Defendant”) is a natural person residing in Point Pleasant, New Jersey. PROCEDURAL BACKGROUND 4. For a full recitation of the procedural background, the Court is respectfully referred to the accompanying affirmation of Alex M. Estis dated December 9, 2022 (the “Estis Affirmation”). FACTS A. The Lease 5. Landlord is the owner and landlord of the building known as and located at 113-133 West 18th Street, New York, New York (the “Building”). A certified copy of the Deed to the Building is annexed hereto as Exhibit “A”. 6. Presher Fitness NY LLC (“Tenant”) entered into possession of certain rentable space on the basement level (the “Premises”) of the Building, as shown on the floor plan annexed to the Original Lease (as defined below) as Exhibit “B”, pursuant to a written Office Lease dated August 24, 2018 (the “Original Lease”), by between Landlord, as landlord and Tenant as tenant, which the Original Lease was modified by that certain Rent Deferral Agreement dated as of April 29, 2020 (the “First Modification”), as amended by a Second Lease Modification -2- RE\04670\0109\4674958v1 2 of 14 FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/09/2022 Agreement made as of “the _____ day of October 2020” (the “Second Modification,” collectively with the Original Lease and the First Modification, the “Lease”).1 7. The Lease term commenced on August 24, 2018 and was originally scheduled to expire on September 30, 2029 (the “Term”). A true copy of the Original Lease, the First Modification and the Second Modification are annexed hereto, collectively, as Exhibit “B”. THE LEASE 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. See Exhibit “B”. 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. See Id. 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 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 1 Capitalized terms used but not otherwise defined herein shall have the same meanings ascribed to them under the Lease. -3- RE\04670\0109\4674958v1 3 of 14 FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/09/2022 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. See Id. 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. See Id. 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 applicable law, all Fixed Rent reduced under this Agreement shall become immediately due and payable. See Id. II. Additional Rent 13. 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.” -4- RE\04670\0109\4674958v1 4 of 14 FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/09/2022 See Id. 14. 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. See Id. 15. Pursuant to Section 2.04 (d) of the Lease, Tenant’s Share is 4.26 percent. See Id. 16. 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 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.” See Id. 17. 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.” -5- RE\04670\0109\4674958v1 5 of 14 FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/09/2022 See Id. III. Late Fees 18. 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.” See Id. THE LEASE I. Holdover Fees 19. 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 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.” See Id. II. Attorneys’ Fees 20. 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.” See Id. -6- RE\04670\0109\4674958v1 6 of 14 FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/09/2022 THE GUARANTY 21. 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. A copy of the Guaranty is annexed hereto as Exhibit “C”. 22. Landlord would not have entered into the Lease with Tenant unless Guarantor executed and delivered the Guaranty to Landlord as the Guaranty was “an inducement for the granting, execution and delivery of the [Lease]. See Id. 23. Under the terms of the Guaranty, Guarantor unconditionally agreed to guarantee the performance by Tenant of all the terms, covenants, conditions, obligations and agreements contained in the Lease on the Tenant’s part to be performed (collectively, the “Obligations”). Landlord entered into the Lease in reliance on the Guaranty and the Obligations contained therein. See Id. 24. Pursuant to the terms of the Guaranty, the Guarantor is liable to Plaintiff for all payments that Tenant is obligated to pay the Plaintiff under the terms of the Lease, including but not limited to, the Arrears and disbursements incurred and to be incurred by Landlord with respect to: (a) any default by Tenant under the Lease, and (b) Landlord’s enforcement of the Guaranty. See Id. 25. 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 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.” -7- RE\04670\0109\4674958v1 7 of 14 FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/09/2022 See Id. 26. 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.” See Id. 27. 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 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 -8- RE\04670\0109\4674958v1 8 of 14 FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/09/2022 supplies furnished to, or in connection with any other action or omission of, Tenant.” See Id. 28. 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.” See Id. 29. 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 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.” See Id. 30. 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 -9- RE\04670\0109\4674958v1 9 of 14 FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/09/2022 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...” See Id. 31. 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.” See Id. 32. 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 proceeding even though Guarantor is not joined as a party in such action or proceeding.” See Id. 33. Paragraph 12 of the Guaranty provides, in pertinent part, that: “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.” See Id. 34. Paragraph 13 of the Guaranty provides: “As a further inducement to Owner to make and enter into the Lease and in consideration thereof, Guarantor covenants and agrees that in - 10 - RE\04670\0109\4674958v1 10 of 14 FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/09/2022 any action or proceeding brough on, under or by virtue of thie Guaranty, Guarantor shall and does hereby waive trial by jury. This Guaranty shall be enforced in accordance with the internal laws of the State of New York (without regard to principles of conflicts of law) and shall be binding upon Guarantor, their respective heirs, legal representatives, successors and assigns and shall inure to the benefit of Owner, its heirs, legal representatives and assigns.” See Id. 35. In breach of the Guaranty, Guarantor failed to pay Landlord Rent for the period May 15, 2020 through and including September 1, 2022, as Tenant is currently in arrears to Landlord in the amount of $1,448,067.40 (the “Rent Arrears”) representing unpaid Rent and Use and Occupancy. A copy of the Tenant’s rent ledger as kept and maintained by Landlord in Landlord’s ordinary course of business is annexed hereto as Exhibit “D”. As a result of Guarantor’s breach of the Guaranty, Landlord has incurred damages and is entitled to a money judgment in Landlord’s favor, and against Guarantor, in an amount to be determined by the Court, but not less than $1,448,067.40, plus interest. 36. Upon the default triggering full recourse against Guarantor, Guarantor failed to pay sums due under the Lease. Guarantor has not made any payments on account of the Tenant as required by the Lease. See Id. Landlord has therefore proven the existence of the Guaranty, the underlying debt, and Guarantor’s failure to perform, which is all Landlord needs to prove to establish its entitlement to judgment as a matter of law. 37. Furthermore, the Guaranty allows Landlord to recover all of its expenses, inclusive of reasonable attorneys’ fees, incurred by Landlord in connection with its enforcement of the Guaranty. See Exhibit “C”. Landlord has incurred and will continue to incur fees, costs and disbursements, including attorneys’ fees, in connection with its enforcement of the Guaranty. As such, Landlord is entitled to a money judgment, in its favor and against Guarantor, for Landlord’s attorneys’ fees, costs, disbursements and expenses incurred in connection with Landlord’s - 11 - RE\04670\0109\4674958v1 11 of 14 FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/09/2022 enforcement of the Guaranty, in an amount to be determined by the Court, but believed to be not less than $25,000.00. 38. Accordingly, it is respectfully requested that Landlord’s motion be granted in all respects. - 12 - RE\04670\0109\4674958v1 12 of 14 FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/09/2022 13 of 14 FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/09/2022 Statement of Compliance with Rule 17 I hereby certify that this Affidavit of Jenifer S. Brooks complies with the word limit of Rule 17 of the Rules of the Commercial Division of the Supreme Court, 22 NYCRR 202.70. I hereby further certify that, according to the word count feature of Microsoft Word, this document is 3,580 words in length, inclusive of footnotes. __________________________ Alex M. Estis RE\04670\0109\4674958v1 14 of 14