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  • Wasserstein Enterprises Llc v. Joseph A. Petrillo Jr.Commercial - Contract document preview
  • Wasserstein Enterprises Llc v. Joseph A. Petrillo Jr.Commercial - Contract document preview
  • Wasserstein Enterprises Llc v. Joseph A. Petrillo Jr.Commercial - Contract document preview
  • Wasserstein Enterprises Llc v. Joseph A. Petrillo Jr.Commercial - Contract document preview
  • Wasserstein Enterprises Llc v. Joseph A. Petrillo Jr.Commercial - Contract document preview
  • Wasserstein Enterprises Llc v. Joseph A. Petrillo Jr.Commercial - Contract document preview
  • Wasserstein Enterprises Llc v. Joseph A. Petrillo Jr.Commercial - Contract document preview
  • Wasserstein Enterprises Llc v. Joseph A. Petrillo Jr.Commercial - Contract document preview
						
                                

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FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/17/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK WASSERSTEIN ENTERPRISES LLC, Index No. 653391/2022 Plaintiff, -against- RESPONSE TO PLAINTIFF’S STATEMENT OF MATERIAL FACTS AND ADDITIONAL JOSEPH A. PETRILLO, JR., STATEMENT OF MATERIAL FACTS IN OPPOSITION Defendants. Defendant, Joseph A. Petrillo, Jr. (“Defendant” and or “Petrillo”), by its undersigned counsel, respectfully submits this Response to Plaintiff’s Statement of Material Facts and Additional Statement of Material Facts in Opposition, pursuant to Rule 19-A of the Commercial Division Rules. AS TO PALINTIFF’S STATEMENT OF MATERIAL FACTS The Premises and the Lease. 1. 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”). RESPONSE: Petrillo does not dispute this fact. 2. 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 hereto as Exhibit “A”, 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 “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”). RESPONSE: Petrillo does not dispute this fact. 1 of 14 FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/17/2023 3. The Lease term commenced on August 24, 2018 and was originally scheduled to expire on September 30, 2029 (the “Term”). RESPONSE: Petrillo does not dispute this fact. 4. 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. RESPONSE: This statement references certain provisions in the Lease, which speaks for itself. Petrillo refers the Court to the Lease for its contents and interpretation and defers all questions of law to the Court. 5. 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. RESPONSE: This statement references certain provisions in the Lease, which speaks for itself. Petrillo refers the Court to the Lease for its contents and interpretation and defers all questions of law to the Court. 6. 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 Premise 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 - (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. RESPONSE: This statement references certain provisions in the Lease, which speaks for itself. 2 of 14 FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/17/2023 Petrillo refers the Court to the Lease for its contents and interpretation and defers all questions of law to the Court. 7. 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. RESPONSE: This statement references certain provisions in the Lease, which speaks for itself. Petrillo refers the Court to the Lease for its contents and interpretation and defers all questions of law to the Court. 8. 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. RESPONSE: This statement references certain provisions in the Lease, which speaks for itself. Petrillo refers the Court to the Lease for its contents and interpretation and defers all questions of law to the Court. 9. 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.” RESPONSE: This statement references certain provisions in the Lease, which speaks for itself. Petrillo refers the Court to the Lease for its contents and interpretation and defers all questions of 3 of 14 FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/17/2023 law to the Court. 10. 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. RESPONSE: This statement references certain provisions in the Lease, which speaks for itself. Petrillo refers the Court to the Lease for its contents and interpretation and defers all questions of law to the Court. 11. Pursuant to Section 2.04 (d) of the Lease, Tenant’s Share is 4.26 percent. RESPONSE: This statement, comprised of attorney argument going to the crux of the dispute between the parties, is impermissible in a statement pursuant to 22 NYCRR 202.8-g and is therefore disputed and rejected by Petrillo. 12. 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, ifany 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.” RESPONSE: This statement refers to a document, which speaks for itself. Petrillo refers the Court to the referenced document for its contents and interpretation and defers all questions of law to the Court. 4 of 14 FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/17/2023 13. 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.” RESPONSE: This statement references certain provisions in the Lease, which speaks for itself. Petrillo refers the Court to the Lease for its contents and interpretation and defers all questions of law to the Court. 14. 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.” RESPONSE: This statement references certain provisions in the Lease, which speaks for itself. Petrillo refers the Court to the Lease for its contents and interpretation and defers all questions of law to the Court. 15. Under the terms of the Guaranty, Guarantor 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.” RESPONSE: Petrillo does not dispute this fact. 16. 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 5 of 14 FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/17/2023 to: (a) any default by Tenant under the Lease, and (b) Landlord’s enforcement of the Guaranty. RESPONSE: This statement references certain provisions in the Guaranty, which speaks for itself. Petrillo refers the Court to the Guaranty for its contents and interpretation and defers all questions of law to the Court. 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 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.” RESPONSE: This statement references certain provisions in the Lease, which speaks for itself. Petrillo refers the Court to the Lease for its contents and interpretation and defers all questions of law to the Court. 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.” RESPONSE: This statement references certain provisions in the Lease, which speaks for itself. Petrillo refers the Court to the Lease for its contents and interpretation and defers all questions of law to the Court. 19. Guarantor executed and delivered a Guaranty agreement dated August 24, 2018 (the “Guaranty”) to Landlord. RESPONSE: Petrillo does not dispute this fact. 20. Landlord would not have entered into the Lease with Tenant unless Guarantor executed and delivered the Guaranty to Landlord. 6 of 14 FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/17/2023 RESPONSE: Petrillo is not in a position to determine and or begin to try to comprehend what the Landlord would or would not do had the Tenant not been able to find a Guarantor. 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 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.” RESPONSE: This statement references certain provisions in the Guaranty, which speaks for itself. Petrillo refers the Court to the Guaranty for its contents and interpretation and defers all questions of law to the Court. 22. Paragraph 1 of the Guaranty 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.” RESPONSE: This statement references certain provisions in the Guaranty, which speaks for itself. Petrillo refers the Court to the Guaranty for its contents and interpretation and defers all questions of law to the Court. 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 7 of 14 FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/17/2023 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 supplies furnished to, or in connection with any other action or omission of, Tenant.” RESPONSE: This statement references certain provisions in the Guaranty, which speaks for itself. Petrillo refers the Court to the Guaranty for its contents and interpretation and defers all questions of law to the Court. 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.” RESPONSE: This statement references certain provisions in the Guaranty, which speaks for itself. Petrillo refers the Court to the Guaranty for its contents and interpretation and defers all questions of law to the Court. 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 8 of 14 FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/17/2023 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.” RESPONSE: This statement references certain provisions in the Guaranty, which speaks for itself. Petrillo refers the Court to the Guaranty for its contents and interpretation and defers all questions of law to the Court. 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...” RESPONSE: This statement references certain provisions in the Guaranty, which speaks for itself. Petrillo refers the Court to the Guaranty for its contents and interpretation and defers all questions of law to the Court. 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. RESPONSE: This statement references certain provisions in the Guaranty, which speaks for itself. Petrillo refers the Court to the Guaranty for its contents and interpretation and defers all questions of law to the Court. 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 9 of 14 FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/17/2023 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.” RESPONSE: This statement references certain provisions in the Guaranty, which speaks for itself. Petrillo refers the Court to the Guaranty for its contents and interpretation and defers all questions of law to the Court. 29. 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.” RESPONSE: This statement references certain provisions in the Guaranty, which speaks for itself. Petrillo refers the Court to the Guaranty for its contents and interpretation and defers all questions of law to the Court. 30. 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 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 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.” RESPONSE: This statement references certain provisions in the Guaranty, which speaks for itself. Petrillo refers the Court to the Guaranty for its contents and interpretation and defers all questions of law to the Court. ARREARS DURING LEASE TERM 31. Tenant has failed to pay the installments of fixed rent and additional rent for the Premises (the “Arrears”), which remain due and owing totaling $1,448,067.40 as documented in the 10 of 14 FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/17/2023 rent ledger (the “Rent Ledger”). RESPONSE: Pursuant to plaintiff’s rent ledger, the amount allegedly in dispute is $1,420,693.02, which differs from plaintiff’s alleged amount due and owed mentioned above. Petrillo cannot agree to these facts without his right to obtain discovery. 32. Guarantor has not made any payments on account of the Tenant as required by the Lease. RESPONSE: At this juncture, Plaintiff prematurely moved for summary judgment without allowing Petrillo to obtain records through the normal course of discovery and thus, Petrillo has not been afforded his right to properly review any bookkeeping records, bank statements, ledgers, payroll, utility bills, etc., from Plaintiff and or from the Tenant. 33. The Guaranty entitles Landlord to recover all of its expenses, inclusive of reasonable attorneys’ fees, incurred by Landlord in connection with its enforcement of the Guaranty.” RESPONSE: Petrillo does not dispute this fact. 34. Landlord has incurred and will continue to incur fees, costs and disbursement, including attorneys’ fees, in connection with its enforcement of the Guaranty. RESPONSE: Petrillo does not dispute this fact. AS FOR PETRILLO’S STATEMENT OF MATERIAL FACTS IN OPPOSITION 1. On August 24, 2018, Petrillo agreed to execute the Lease Agreement as Presher Fitness NY LLC’s Guarantor for the lease agreement between Plaintiff, Wasserstein Enterprises LLC (“Owner”) and Presher Fitness NY LLC (“Presher” and or “Tenant”) who operated a fitness facility offering group fitness training to the public. (Petrillo Aff. ¶ 2). 2. Section 3.02 of the Lease Agreement including a Force Majeure provision specifically relating to occurrences involving: (3) governmental preemption in connection with a national emergency, (4) any rule, order or regulation of any governmental agency, (5) conditions of supply or demand which are affected by war or other national, state or municipal emergency, (7) civil disturbance, act of the public enemy, riot, sabotage, blockade, embargo or explosion, 11 of 14 FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/17/2023 and (8) acts of God (such as, by way of example only, tornado, earthquake, hurricane, washout or storm). (Petrillo Aff. ¶ 4). 3. Plaintiff fails to mention the force majeure clause (Section 3.02) in their statement of facts, their memorandum of law, or either of their affirmations in support. (See Dkt No. 5, 8, 13 and 15). 4. In further consideration of the sum of One Dollar ($1.00) and other alleged good and valuable consideration paid by Plaintiff, Petrillo unconditionally guaranteed the lease agreement with Plaintiff for the space in the basement level in the building known as 113-133 West 18th Street, New York, NY(“Premises”). (Petrillo Aff. ¶ 3). As the guarantor of the Lease Agreement and as a result of Covid-19, Petrillo never received consideration for executing the Guaranty due to the fact that the Tenant was unable to perform. 5. Petrillo had no access to Tenants book-keeping, payment receipts, quickbooks, employee records, payments, ledgers, or any control over the operations of the Tenant’s business. (Petrillo Aff. ¶ 8). 6. Petrillo was a minority investor who had no control over the Tenant and had not notice from any wrong doings by the Tenant. (Petrillo Aff. ¶ 1, 8, and 36). 7. On March 7, 2020, Governor Cuomo issued Executive Order No. 202, declaring a disaster emergency for the entire State of New York due to COVID-19. (Executive Order No. 202; Petrillo Aff. ¶ 10). As a result of the Covid-19 pandemic, and per Governor’s Cuomo’s executive order, Tenant was mandated to cease operations and were unable their business as bargained for in the lease agreement. (Petrillo Aff. ¶ 11). 8. Tenant’s Facility ceased operations at the Premises beginning March 16, 2020. (Petrillo Aff. ¶ 11). 9. Tenant and all other gyms and fitness centers in New York State were deemed “non-essential businesses” by New York State for purposes of interpreting which businesses were permitted to operate and under what circumstances. (Petrillo Aff. ¶ 13) 12 of 14 FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/17/2023 10. On July 6, 2020, Governor Cuomo issued Executive Order 202.48, reiterating that gyms and fitness centers were to remain closed, in their entirety, indefinitely. (Executive Order 202.48; Petrillo Aff. ¶ 14). 11. On August 31, 2020, Mayor de Blasio issued Emergency Executive Order No. 144 prohibiting indoor group fitness classes with two or more people. (Emergency Executive Order No. 144; Petrillo Aff. ¶ 15). 12. On March 21, 2021, Governor Cuomo issued Executive Order 202.98, stating that “effective March 22, 2021, indoor fitness classes shall be permitted to operate, subject to adherence to Department of Health guidance.” (Executive Order 202.98; Petrillo Aff. ¶ 24). 13. On April 3, 2021, Tenant was able to reopen the Presher Fitness to operate indoor group fitness classes at 33% capacity. On May 15, 2021, Tenant was able to increase to 50% capacity. (Petrillo Aff. ¶ 26). 14. It was not possible for Petrillo to foresee a global pandemic and governmental executive orders ceasing the operations of Tenant/ultimately affecting the Lease’ purpose between Tenant, Plaintiff and defendant. (Petrillo Aff. ¶ 29, 31, and 43). Dated: Red Bank, NJ January 17, 2023 _________________________ Joshua P. Cittadino, Esq 13 of 14 FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/17/2023 Statement of Compliance with Rule 17 I hereby certify that this Plaintiff’s Statement of Undisputed Material Facts 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 4721 works in length, inclusive of footnotes. ________________________ Joshua P. Cittadino, Esq. 14 of 14