Preview
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.
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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.
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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
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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.
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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
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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.
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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
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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
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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
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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
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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,
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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)
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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
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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
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.
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