Preview
FILED: NEW YORK COUNTY CLERK 01/12/2023 11:52 AM INDEX NO. 653394/2022
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/12/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----_____..----------..____________
___-------------------------_________--Ç
TOWER BROKERAGE, INC., : Index No. 653394/2022
Plaintiff, :
- against - : Part 41
BROOME 302 REALTY LLC and :
STEVEN KACHANIAN,
: Motion Seq. 001
Defendants.
____-----------------___--------___-------___________________----______-Ç
DEFENDANTS'
AFFIDAVIT IN OPPOSITION TO
MOTION TO DISMISS THE VERIFIED COMPLAINT
State of New York
County of New York
HAZM ALIESSA, being duly swom, deposes and says:
1. I am the Managing Director of Tower Brokerage, Inc. ("Tower"), the plaintiff in
the above-captioned action. I submit this affidavit in opposition to the motion by defendants
Broome 302 Realty LLC ("Broome") and Steven Kachanian to dismiss the Verified Complaint
herein (the "Complaint"). I am the broker principally responsible for the relationship with the
defendant, including the transaction that is the subject of the Complaint, and have personal
knowledge about the matters set forth in this affidavit.
2. The relevant facts are set forth in the Complaint and will not be repeated in this
affidavit. Defendants have raised certain arguments in their motion that rest on incorrect factual
statements, and the purpose of this affidavit is limited to addressing those factual matters that
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were inappropriately raised. In particular, defendants argue that the Complaint failsto properly
identify the counterparty to the brokerage relationship or state the basis on which Tower claims
that any contract exists. In addition, defendants claim that Tower bases itsaccount stated claim
"inexplicable"
on a single transmittal of one invoice in the amount of $48,916.31 and that itis
that Tower seeks nearly three times that much in this action.
3. 1 have performed brokerage services for approximately a decade for Steven
Kachanian or his private real estate investment company, Klosed Properties ("Klosed"). These
included, but are not limited to, three separate lease transactions for defendant Broome for the
same two commercial condominium spaces at 302 Broome Street (the "Premises") that are the
subject of this action. During this period, Mr. Kachanian and Klosed typically worked with and
invested with the Namdar Properties Group ("Namdar"), another private real estate investment
company that was much larger than Klosed. Namdar typically held the majority interest in the
properties in which they co-invested and oversaw the management and accounting functions for
these properties. At Mr. Kachanian's instructions, Tower previously sent invoices for brokerage
services on such properties to Namdar. I attach as Exhibit A copies of some invoices that Tower
sent to Broome, c/o Namdar, for brokerage services performed for an earlier transaction for
Broome for The Premises, and for which Tower was previously paid. Namdar's close
involvement is clear;in many of the emails that I attach to this affidavit, Mr. Kachanian included
igal@namdarilc.com as a copy recipient, which is a reference to Igal Namdar, the President of
Namdar.
4. As shown by the invoices attached as Exhibit A, Tower dealt with Broome 302
Realty LLC, the defendant in this action. However, when the then-current tenant in the Premises
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NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/12/2023
vacated due to pandemic-related issues, Mr. Kachanian contacted me in 2021 to engage Tower to
"Client"
locate a new tenant for the Premises. This time, Mr. Kachanian identified the as himself
"Company"
and the as 302 Broome Street Retail LLC in our engagement letter.After Mr.
Kachanian provided the party information, I sent the engagement letterto him for his
"Principal"
countersignature. He signed as a without indicating whether he was personally a
principal in the transaction or a principal of Broome. Mr. Kachanian did not tell me that the
name of the Company in the Commission Agreement was incorrect or otherwise clarify the
identity of the Company or Client.
5. Tower located a suitable tenant for the Premises and Broome entered into a lease
dated March 25, 2022, with CB Hospitality and Events LLC (the "Tenant") as described in the
Complaint, at ¶9 (the "Lease"). I attach excerpts of relevant portions of the Lease as Exhibit B,
including Article XXIII.C of the Lease, which recognizes Tower as the broker.
6. I attach as Exhibit C some of the email communications between Mr. Kachanian
(and others) and me concerning the subject transaction. Reading from the end of the thread, I
sent an email to Mr. Kachanian on March 28, 2022, letting him know that the initial check
required by the Lease had been sent by the Tenant to Igal Namdar at Namdar. I also sent him a
spreadsheet showing my calculation of the commission and a separate writing documenting the
calculation. Mr. Kachanian responded on March 28, 2022, stating that "The payout structure is a
years."
problem. This is the 3th [sic]tenant in the space in 4 I responded on March 28, 2022,
pointing out that the payment structure is the one to which he agreed in the Commission
Agreement.
7. After these preliminary communications, I generated an invoice for the brokerage
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commission and, as previously instructed by Mr. Kachanian, sent itto Namdar on April 6, 2022
due."
"for the first payment See Exhibit C. A copy of the April 6, 2022, invoice is attached as
Exhibit D (the "Invoice"). This is the invoice referred to in the Complaint, ¶31. As a courtesy to
defendants and in view of our long relationship, 1 issued the Invoice for a partial installment of
40% of the total commission due, and the Invoice itselfnotes that the total amount of the
commission due was $122,290.78, the amount sought in the Complaint.
8. Because Mr. Kachanian did not respond to my April 6, 2022, email, I senthim a
follow-up email on April 11, 2022, enclosing another copy of the Invoice. He responded quickly
latitude"
and said that Igal [Namdar] and he "need a bit of and proposed to break the debt into
five installments payable in the 24 months following rent commencement. I responded in less
than an hour and rejected his proposal. See Exhibit C.
9. Mr. Kachanian sent me an email on May 1, 2022, stating, "please send me invoice
week."
for 20% of the fee. Ill[sic] get itpaid this In response, I sent another email to Mr.
Kachanian on May 2, 2022, attaching another copy of the Invoice, and a follow-up email on May
5, 2022, enclosing yet another copy of the Invoice. Thus, I sent the Invoice to defendants on
many occasions, not just once as erroneously stated by the defendants. On May 12, 2022, Mr.
Kachanian sent another email to me, ignoring the express terms of the Commission Agreement
and arguing that he had never paid 40% of the commission owed at signing on other transactions,
and again offering to pay 20% and the balance over time.
10. On September 7, 2022, Mr. Kachanian sent me an email regarding 302 Broome
50%."
Street stating, "Please send me invoice for
11. Mr. Kachanian, Broome, or Namdar never disputed the total amount of the
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FILED: NEW YORK COUNTY CLERK 01/12/2023 11:52 AM INDEX NO. 653394/2022
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/12/2023
commission owed in any of the emails that Mr. Kachanian sent to me Tower's
concerning
demand for payment, or otherwise. Defendants did not disclaim liability, object to Tower's
calculation, or claim that Tower's perfonnance was deficient in any respect. Mr. Kachanian
consistently acknowledged his Agreement and the amount of the commission owed, but sought
only to spread the payments out over time due to business-related concerns, to the
contrary
schedule in the Commission Agreement.
azm Aliessa
Sworn to befo le tKi
of ja 9 ,2)/
Day /
Totary Publ
State of New Ybtk - New Yor Co ty
S su on Date C) rÛÛ Ô.
/
7jL( (P$ÇQ. t
'pbrsonally
apgiearee before me and took an oath under penalties
of perjury
thatthe foregoingstatement is true
and correct.
ALEXANDRA MARTINEZ, Notary Public#01MA6 1 72
My Commission $xpires March 25, 20
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Preview
FILED: NEW YORK COUNTY CLERK 01/12/2023 11:52 AM INDEX NO. 653394/2022 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/12/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----_____..----------..____________ ___-------------------------_________--Ç TOWER BROKERAGE, INC., : Index No. 653394/2022 Plaintiff, : - against - : Part 41 BROOME 302 REALTY LLC and : STEVEN KACHANIAN, : Motion Seq. 001 Defendants. ____-----------------___--------___-------___________________----______-Ç DEFENDANTS' AFFIDAVIT IN OPPOSITION TO MOTION TO DISMISS THE VERIFIED COMPLAINT State of New York County of New York HAZM ALIESSA, being duly swom, deposes and says: 1. I am the Managing Director of Tower Brokerage, Inc. ("Tower"), the plaintiff in the above-captioned action. I submit this affidavit in opposition to the motion by defendants Broome 302 Realty LLC ("Broome") and Steven Kachanian to dismiss the Verified Complaint herein (the "Complaint"). I am the broker principally responsible for the relationship with the defendant, including the transaction that is the subject of the Complaint, and have personal knowledge about the matters set forth in this affidavit. 2. The relevant facts are set forth in the Complaint and will not be repeated in this affidavit. Defendants have raised certain arguments in their motion that rest on incorrect factual statements, and the purpose of this affidavit is limited to addressing those factual matters that 1 1 of 5 FILED: NEW YORK COUNTY CLERK 01/12/2023 11:52 AM INDEX NO. 653394/2022 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/12/2023 were inappropriately raised. In particular, defendants argue that the Complaint failsto properly identify the counterparty to the brokerage relationship or state the basis on which Tower claims that any contract exists. In addition, defendants claim that Tower bases itsaccount stated claim "inexplicable" on a single transmittal of one invoice in the amount of $48,916.31 and that itis that Tower seeks nearly three times that much in this action. 3. 1 have performed brokerage services for approximately a decade for Steven Kachanian or his private real estate investment company, Klosed Properties ("Klosed"). These included, but are not limited to, three separate lease transactions for defendant Broome for the same two commercial condominium spaces at 302 Broome Street (the "Premises") that are the subject of this action. During this period, Mr. Kachanian and Klosed typically worked with and invested with the Namdar Properties Group ("Namdar"), another private real estate investment company that was much larger than Klosed. Namdar typically held the majority interest in the properties in which they co-invested and oversaw the management and accounting functions for these properties. At Mr. Kachanian's instructions, Tower previously sent invoices for brokerage services on such properties to Namdar. I attach as Exhibit A copies of some invoices that Tower sent to Broome, c/o Namdar, for brokerage services performed for an earlier transaction for Broome for The Premises, and for which Tower was previously paid. Namdar's close involvement is clear;in many of the emails that I attach to this affidavit, Mr. Kachanian included igal@namdarilc.com as a copy recipient, which is a reference to Igal Namdar, the President of Namdar. 4. As shown by the invoices attached as Exhibit A, Tower dealt with Broome 302 Realty LLC, the defendant in this action. However, when the then-current tenant in the Premises 2 2 of 5 FILED: NEW YORK COUNTY CLERK 01/12/2023 11:52 AM INDEX NO. 653394/2022 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/12/2023 vacated due to pandemic-related issues, Mr. Kachanian contacted me in 2021 to engage Tower to "Client" locate a new tenant for the Premises. This time, Mr. Kachanian identified the as himself "Company" and the as 302 Broome Street Retail LLC in our engagement letter.After Mr. Kachanian provided the party information, I sent the engagement letterto him for his "Principal" countersignature. He signed as a without indicating whether he was personally a principal in the transaction or a principal of Broome. Mr. Kachanian did not tell me that the name of the Company in the Commission Agreement was incorrect or otherwise clarify the identity of the Company or Client. 5. Tower located a suitable tenant for the Premises and Broome entered into a lease dated March 25, 2022, with CB Hospitality and Events LLC (the "Tenant") as described in the Complaint, at ¶9 (the "Lease"). I attach excerpts of relevant portions of the Lease as Exhibit B, including Article XXIII.C of the Lease, which recognizes Tower as the broker. 6. I attach as Exhibit C some of the email communications between Mr. Kachanian (and others) and me concerning the subject transaction. Reading from the end of the thread, I sent an email to Mr. Kachanian on March 28, 2022, letting him know that the initial check required by the Lease had been sent by the Tenant to Igal Namdar at Namdar. I also sent him a spreadsheet showing my calculation of the commission and a separate writing documenting the calculation. Mr. Kachanian responded on March 28, 2022, stating that "The payout structure is a years." problem. This is the 3th [sic]tenant in the space in 4 I responded on March 28, 2022, pointing out that the payment structure is the one to which he agreed in the Commission Agreement. 7. After these preliminary communications, I generated an invoice for the brokerage 3 3 of 5 FILED: NEW YORK COUNTY CLERK 01/12/2023 11:52 AM INDEX NO. 653394/2022 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/12/2023 commission and, as previously instructed by Mr. Kachanian, sent itto Namdar on April 6, 2022 due." "for the first payment See Exhibit C. A copy of the April 6, 2022, invoice is attached as Exhibit D (the "Invoice"). This is the invoice referred to in the Complaint, ¶31. As a courtesy to defendants and in view of our long relationship, 1 issued the Invoice for a partial installment of 40% of the total commission due, and the Invoice itselfnotes that the total amount of the commission due was $122,290.78, the amount sought in the Complaint. 8. Because Mr. Kachanian did not respond to my April 6, 2022, email, I senthim a follow-up email on April 11, 2022, enclosing another copy of the Invoice. He responded quickly latitude" and said that Igal [Namdar] and he "need a bit of and proposed to break the debt into five installments payable in the 24 months following rent commencement. I responded in less than an hour and rejected his proposal. See Exhibit C. 9. Mr. Kachanian sent me an email on May 1, 2022, stating, "please send me invoice week." for 20% of the fee. Ill[sic] get itpaid this In response, I sent another email to Mr. Kachanian on May 2, 2022, attaching another copy of the Invoice, and a follow-up email on May 5, 2022, enclosing yet another copy of the Invoice. Thus, I sent the Invoice to defendants on many occasions, not just once as erroneously stated by the defendants. On May 12, 2022, Mr. Kachanian sent another email to me, ignoring the express terms of the Commission Agreement and arguing that he had never paid 40% of the commission owed at signing on other transactions, and again offering to pay 20% and the balance over time. 10. On September 7, 2022, Mr. Kachanian sent me an email regarding 302 Broome 50%." Street stating, "Please send me invoice for 11. Mr. Kachanian, Broome, or Namdar never disputed the total amount of the 4 4 of 5 FILED: NEW YORK COUNTY CLERK 01/12/2023 11:52 AM INDEX NO. 653394/2022 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/12/2023 commission owed in any of the emails that Mr. Kachanian sent to me Tower's concerning demand for payment, or otherwise. Defendants did not disclaim liability, object to Tower's calculation, or claim that Tower's perfonnance was deficient in any respect. Mr. Kachanian consistently acknowledged his Agreement and the amount of the commission owed, but sought only to spread the payments out over time due to business-related concerns, to the contrary schedule in the Commission Agreement. azm Aliessa Sworn to befo le tKi of ja 9 ,2)/ Day / Totary Publ State of New Ybtk - New Yor Co ty S su on Date C) rÛÛ Ô. / 7jL( (P$ÇQ. t 'pbrsonally apgiearee before me and took an oath under penalties of perjury thatthe foregoingstatement is true and correct. ALEXANDRA MARTINEZ, Notary Public#01MA6 1 72 My Commission $xpires March 25, 20 5 of 5