Preview
FILED: ROCKLAND COUNTY CLERK 03/21/2023 09:14 AM INDEX NO. 030709/2023
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/21/2023
SUPREME COURT
STATE OF NEW YORK COUNTY OF ROCKLAND
KPL GREEN LLC,
Plaintiff, VERIFIED
-against- ANSWER WITH
COUNTERCLAIMS
GREENPORT HUDSON ASSOCIATES, LLC,
MORGENSTERN DEVOESICK, PLLC, as
Escrow Agent, and CRAZY BEER WORLD, INC., Index No.: 030709/2023
Defendants.
Defendant, CRAZY BEER WORLD, INC. (“Beer World”), answering the Complaint of
the Plaintiff, KPL GREEN, LLC (hereinafter “Plaintiff” and/or “Green”) herein:
1. Denies knowledge or information sufficient to form a belief as to the allegations
contained in paragraphs 1, 2, 5, 7, 12, 16, 17, 19, 22, 23, 25, 28, 29, 30, 34, 35, 36, 37, 38, 43,
44, 45 and 46 of the Complaint.
2. As to paragraph 3 of the Complaint, admits that Beer World is a domestic
business corporation organized and existing under the laws of the State of New York, but denies
that its principal address is currently 239 Ulster Avenue, Apartment 2, Saugerties, NY 12477.
3. Admits the allegations contained in paragraphs 4, 8, 15, 33 and 51 of the
Complaint.
4. Beer World refers the Court to the document(s) being referenced in paragraphs 6,
9, 10, 11, 13, 14, 18, 20, 21, 24, 26, 32, 40, 41, 42, 48, and 49 of the Complaint, the contents of
which speak for itself/themselves, and otherwise denies the allegations in those paragraphs.
5. Denies the allegations contained in paragraphs 27 and 50 of the Complaint.
6. As to paragraph 52, Beer World admits that Green seeks a judgment in their favor
against Beer World, but otherwise denies the allegations of paragraph 52 of the Complaint.
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7. Denies each and every other allegation in the Complaint not otherwise herein
specifically admitted or denied.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
8. The Complaint fails to state a cause of action upon which relief, in whole or in
part, may be granted.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
9. The relief sought by the plaintiff in the Complaint is barred by the applicable
statute of limitations.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
10. The Court lacks personal jurisdiction over the answering defendant.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
11. The plaintiff has failed to join parties who are necessary and indispensable to a
just adjudication of this action.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
12. The plaintiff’s claims are barred by the doctrines of waiver, estoppel, unclean
hands and/or laches.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
13. The plaintiff has failed to mitigate its damages.
AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE
14. Plaintiff's claims are barred by documentary evidence.
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AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
15. Plaintiff's claims are barred by the doctrines of payment, release and/or
compromise.
AS AND FOR A FIRST COUNTERCLAIM
(Declaratory Judgment)
16. Beer World hereby repeats and realleges each and every allegation contained
hereinabove as if fully set forth and enumerated herein.
17. Beer World and co-defendant Greenport/Hudson Associates, LLC (“Greenport”)
entered into a Lease for the former to rent 17,000 square feet of commercial space (“Premises”)
located at 300 Fairview Avenue, Hudson, New York 12534 (“Property”) on May 26, 2022.
18. The Lease (i.e., Exhibit B to the Complaint) states, in part, that:
“Upon full execution of this Lease, Tenant shall have 120 days to move its existing New
York State SLA license to the Premises. (This also required TTB approval which is part
of this 120-day period). The reporting of the satisfaction of the date of this contingency
will be promptly reported by Tenant to Landlord when obtained.”
19. The aforementioned “Licensing Contingency” to perform the contract is for the
sole benefit of, and may only be exercised by, Beer World.
20. Beer World applied to the New York State Liquor Authority (“SLA”) for a liquor
license for the Premises in June 2022.
21. The Lease also states, in part, that the anticipated possession date of the Premises
was/is “[u]pon Tenant’s receipt of Licensing Approval or waiver of the Licensing Contingency,
but not sooner than July 1, 2022” (emphasis added).
22. Based upon the aforementioned language of the Lease, Beer World had the option
to waive the Licensing Contingency and take possession of the Premises if it was unable to
secure its liquor license within the 120-day period.
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23. Greenport and Beer World subsequently executed an Amendment to the Lease,
effective October 5, 2022 (Exhibit C to the Complaint), which states that the “Liquor Licensing
Section of the Lease shall be amended to provide that the licensing contingency period is hereby
extended to December 31, 2022.”
24. The Amendment to the Lease also states that “[n]otwithstanding any other
provision of the Lease, Tenant shall take possession of the Premises on the earlier of three (3)
business days after receiving Liquor License consent/approval or January 1, 2023…” (emphasis
added).
25. Thus, based upon the Lease and Amendment, Beer World (1) was required to take
possession of the Premises within three days of receiving its liquor license; or (2) had the option
to cancel the Lease on or before December 31, 2022 if it had not obtained its liquor license; and
(3) was required to take possession of the Premises on January 1, 2023 if it did not exercise its
option to cancel the Lease on or before December 31, 2022.
26. Plaintiff purchased the Property on or about November 8, 2022.
27. There was no communication from Plaintiff and/or Greenport to Beer World
regarding the closing and change of ownership of the Property.
28. Unaware of the change of ownership, in December 2022, counsel for Beer World
sent several e-mails to counsel for Greenport requesting an extension of the Licensing
Contingency to March 15, 2023 because it had not yet received its liquor license.
29. Beer World had been told by the SLA that it was still working on applications
from May 2022.
30. In the e-mails, Beer World reserved its right to cancel the Lease if Plaintiff did not
agree to an extension.
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31. Counsel for Beer World did not state to counsel for Greenport that Beer World
was exercising its option to cancel the Lease if the requested extension was not granted.
32. On January 3, 2023, counsel for Greenport finally provided counsel for Beer
World with the contact information for Plaintiff.
33. Counsel for Beer World was then referred to present counsel for Plaintiff.
34. Counsel for Beer World and counsel for Plaintiff communicated over the next few
weeks over the request for an extension.
35. On January 25, 2023, counsel for Plaintiff sent an e-mail to counsel for Beer
World stating that “my client has rejected your client’s request for an extension as untimely” and
“[o]ur position is that your client cancelled the [Lease].”
36. Counsel for Beer World expressly rejected Plaintiff’s assertion that Beer World
had cancelled the Lease.
37. Contrary to Plaintiff’s claim, since Beer World did not have its liquor license and
had not cancelled the Lease on or before December 31, 2022, at worst, it was required to take
possession of the Premises on January 1, 2023.
38. That being said, Plaintiff never demanded or gave Beer World the opportunity to
take possession of the Premises.
39. Contrary to Plaintiff’s claim, its only option was to claim that Beer World was in
breach of the Lease based upon the failure to take possession of the Premises.
40. If Beer World was in breach of the Lese, it required Plaintiff to give Beer World
written notice of the alleged breach (i.e., failure to take possession of the Premises) and provide
it thirty (30) days to cure.
41. The Lease also states that “[if] Tenant is pursuing a cure with reasonable
diligence, such event will not be considered a default.”
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42. Plaintiff breached the Lease by failing to provide Beer World with written notice
of the breach and giving it an opportunity to cure.
43. Beer World obtained its liquor license for the Premises on March 1, 2023, but
Plaintiff has refused and continues to refuse to honor the terms of the Lease.
44. Based upon the foregoing, Beer World is entitled to declaratory judgment that the
Lease has not been terminated and is in full force and effect.
45. Based upon the foregoing, Beer World is entitled to injunctive relief requiring
Plaintiff to comply with the terms of the Lease.
AS AND FOR A SECOND COUNTERCLAIM
(Breach of Contract)
46. Beer World hereby repeats and realleges each and every allegation contained
hereinabove as if fully set forth and enumerated herein.
47. Plaintiff is in breach of the Lease.
48. As a result of Plaintiff’s breach, Beer World has suffered, and will continue to
suffer, damages in an amount to be determined at trial.
49. Based upon the foregoing, Beer World is entitled to a judgment against Green in
an amount to be determined at trial, plus interest pursuant to statute, attorney’s fees, costs and
disbursements.
WHEREFORE, Beer World demand judgment (1) dismissing the complaint as against it
with attorneys' fees, costs and disbursements; (2) on the first counterclaim for declaratory
judgment that the Lease has not been terminated and is in full force and effect; (3) on the first
counterclaim for injunctive relief ordering Plaintiff to comply with the terms of the Lease; (4) on
the second counterclaim for breach of contract for damages in an amount to be determined at
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trial, plus contractual and/or statutory interest; (5) on the counterclaims, for a judgment for Beer
World’s attorneys' fees, costs and disbursements, plus statutory interest; (6) for such other and
further relief as the Court deems just and proper.
Dated: March 21, 2023 MAYNARD, O'CONNOR, SMITH &
CATALINOTTO, LLP
/s/Justin W. Gray
Justin W. Gray, Esq.
Attorneys for Defendant, Crazy Beer World, Inc.
Office and Post Office Address
6 Tower Place
Albany, New York 12203
(518) 465-3553 –phone
gray@moscllp.com – e-mail
TO: Brian K. Condon, Esq. VIA ECF
Condon Paxos PLLC
Attorney for Plaintiff
55 Old Turnpike Road – Suite 502
Nanuet, New York 10954
(845) 627-8500 – phone
Brian@CondonPaxos.com – e-mail
cc: Warren B. Rosenbaum, Esq. VIA ECF
F. Michael Ostrander, Esq.
Woods Oviatt Gilman LLP
Attorneys for Defendant, Greenport Hudson Associates, LLC
1900 Bausch & Lomb Place
Rochester, New York 14604
(585) 987-2800 – phone
fostrander@woodsoviatt.com – e-mail
wrosenbaum@woodsoviatt.com – e-mail
cc: Jeffrey Spiegel, Esq. VIA ECF
Stephen Rickershauser, Esq.
Lewis Brisbois Bisgaard & Smith LLP
Attorneys for Defendant, Morgenstern Devoesick, PLLC
77 Water Street - Suite 2100
New York, New York 10005
212.232.1300 – phone
jeffrey.spiegel@lewisbrisbois.com – e-mail
stephen.rickershauser@lewisbrisbois.com – e-mail
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NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/21/2023
ATTORNEY'S VERIFICATION
STATE OF NEW YORK :
: ss.:
COUNTY OF ALBANY :
The undersigned, an attorney admitted to practice in the Courts of New York State shows:
Deponent is Justin W. Gray, a partner with the law firm of MAYNARD, O'CONNOR, SMITH
& CATALINOTTO, LLP, the attorneys of record for Crazy Beer World, Inc. in the within
action; deponent has read the foregoing Answer and knows the contents thereof; the same is true
to deponent's own knowledge, except as to the matters therein stated to be alleged on information
and belief, and that as to those matters deponent believes it to be true. This verification is made
by deponent pursuant to CPLR 3020[d][3].
The grounds of deponent's belief as to all matters not stated upon deponent's knowledge are as
follows: Investigation made and information acquired.
The undersigned affirms that the forgoing statements are true, under the penalties of perjury.
Dated: March 21, 2023
/s/Justin W. Gray
JUSTIN W. GRAY
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FILED: ROCKLAND COUNTY CLERK 03/21/2023 09:14 AM INDEX NO. 030709/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/21/2023 SUPREME COURT STATE OF NEW YORK COUNTY OF ROCKLAND KPL GREEN LLC, Plaintiff, VERIFIED -against- ANSWER WITH COUNTERCLAIMS GREENPORT HUDSON ASSOCIATES, LLC, MORGENSTERN DEVOESICK, PLLC, as Escrow Agent, and CRAZY BEER WORLD, INC., Index No.: 030709/2023 Defendants. Defendant, CRAZY BEER WORLD, INC. (“Beer World”), answering the Complaint of the Plaintiff, KPL GREEN, LLC (hereinafter “Plaintiff” and/or “Green”) herein: 1. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 1, 2, 5, 7, 12, 16, 17, 19, 22, 23, 25, 28, 29, 30, 34, 35, 36, 37, 38, 43, 44, 45 and 46 of the Complaint. 2. As to paragraph 3 of the Complaint, admits that Beer World is a domestic business corporation organized and existing under the laws of the State of New York, but denies that its principal address is currently 239 Ulster Avenue, Apartment 2, Saugerties, NY 12477. 3. Admits the allegations contained in paragraphs 4, 8, 15, 33 and 51 of the Complaint. 4. Beer World refers the Court to the document(s) being referenced in paragraphs 6, 9, 10, 11, 13, 14, 18, 20, 21, 24, 26, 32, 40, 41, 42, 48, and 49 of the Complaint, the contents of which speak for itself/themselves, and otherwise denies the allegations in those paragraphs. 5. Denies the allegations contained in paragraphs 27 and 50 of the Complaint. 6. As to paragraph 52, Beer World admits that Green seeks a judgment in their favor against Beer World, but otherwise denies the allegations of paragraph 52 of the Complaint. {M1133145.1} 1 of 8 FILED: ROCKLAND COUNTY CLERK 03/21/2023 09:14 AM INDEX NO. 030709/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/21/2023 7. Denies each and every other allegation in the Complaint not otherwise herein specifically admitted or denied. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 8. The Complaint fails to state a cause of action upon which relief, in whole or in part, may be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 9. The relief sought by the plaintiff in the Complaint is barred by the applicable statute of limitations. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 10. The Court lacks personal jurisdiction over the answering defendant. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 11. The plaintiff has failed to join parties who are necessary and indispensable to a just adjudication of this action. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 12. The plaintiff’s claims are barred by the doctrines of waiver, estoppel, unclean hands and/or laches. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 13. The plaintiff has failed to mitigate its damages. AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE 14. Plaintiff's claims are barred by documentary evidence. {M1133145.1} 2 2 of 8 FILED: ROCKLAND COUNTY CLERK 03/21/2023 09:14 AM INDEX NO. 030709/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/21/2023 AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 15. Plaintiff's claims are barred by the doctrines of payment, release and/or compromise. AS AND FOR A FIRST COUNTERCLAIM (Declaratory Judgment) 16. Beer World hereby repeats and realleges each and every allegation contained hereinabove as if fully set forth and enumerated herein. 17. Beer World and co-defendant Greenport/Hudson Associates, LLC (“Greenport”) entered into a Lease for the former to rent 17,000 square feet of commercial space (“Premises”) located at 300 Fairview Avenue, Hudson, New York 12534 (“Property”) on May 26, 2022. 18. The Lease (i.e., Exhibit B to the Complaint) states, in part, that: “Upon full execution of this Lease, Tenant shall have 120 days to move its existing New York State SLA license to the Premises. (This also required TTB approval which is part of this 120-day period). The reporting of the satisfaction of the date of this contingency will be promptly reported by Tenant to Landlord when obtained.” 19. The aforementioned “Licensing Contingency” to perform the contract is for the sole benefit of, and may only be exercised by, Beer World. 20. Beer World applied to the New York State Liquor Authority (“SLA”) for a liquor license for the Premises in June 2022. 21. The Lease also states, in part, that the anticipated possession date of the Premises was/is “[u]pon Tenant’s receipt of Licensing Approval or waiver of the Licensing Contingency, but not sooner than July 1, 2022” (emphasis added). 22. Based upon the aforementioned language of the Lease, Beer World had the option to waive the Licensing Contingency and take possession of the Premises if it was unable to secure its liquor license within the 120-day period. {M1133145.1} 3 3 of 8 FILED: ROCKLAND COUNTY CLERK 03/21/2023 09:14 AM INDEX NO. 030709/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/21/2023 23. Greenport and Beer World subsequently executed an Amendment to the Lease, effective October 5, 2022 (Exhibit C to the Complaint), which states that the “Liquor Licensing Section of the Lease shall be amended to provide that the licensing contingency period is hereby extended to December 31, 2022.” 24. The Amendment to the Lease also states that “[n]otwithstanding any other provision of the Lease, Tenant shall take possession of the Premises on the earlier of three (3) business days after receiving Liquor License consent/approval or January 1, 2023…” (emphasis added). 25. Thus, based upon the Lease and Amendment, Beer World (1) was required to take possession of the Premises within three days of receiving its liquor license; or (2) had the option to cancel the Lease on or before December 31, 2022 if it had not obtained its liquor license; and (3) was required to take possession of the Premises on January 1, 2023 if it did not exercise its option to cancel the Lease on or before December 31, 2022. 26. Plaintiff purchased the Property on or about November 8, 2022. 27. There was no communication from Plaintiff and/or Greenport to Beer World regarding the closing and change of ownership of the Property. 28. Unaware of the change of ownership, in December 2022, counsel for Beer World sent several e-mails to counsel for Greenport requesting an extension of the Licensing Contingency to March 15, 2023 because it had not yet received its liquor license. 29. Beer World had been told by the SLA that it was still working on applications from May 2022. 30. In the e-mails, Beer World reserved its right to cancel the Lease if Plaintiff did not agree to an extension. {M1133145.1} 4 4 of 8 FILED: ROCKLAND COUNTY CLERK 03/21/2023 09:14 AM INDEX NO. 030709/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/21/2023 31. Counsel for Beer World did not state to counsel for Greenport that Beer World was exercising its option to cancel the Lease if the requested extension was not granted. 32. On January 3, 2023, counsel for Greenport finally provided counsel for Beer World with the contact information for Plaintiff. 33. Counsel for Beer World was then referred to present counsel for Plaintiff. 34. Counsel for Beer World and counsel for Plaintiff communicated over the next few weeks over the request for an extension. 35. On January 25, 2023, counsel for Plaintiff sent an e-mail to counsel for Beer World stating that “my client has rejected your client’s request for an extension as untimely” and “[o]ur position is that your client cancelled the [Lease].” 36. Counsel for Beer World expressly rejected Plaintiff’s assertion that Beer World had cancelled the Lease. 37. Contrary to Plaintiff’s claim, since Beer World did not have its liquor license and had not cancelled the Lease on or before December 31, 2022, at worst, it was required to take possession of the Premises on January 1, 2023. 38. That being said, Plaintiff never demanded or gave Beer World the opportunity to take possession of the Premises. 39. Contrary to Plaintiff’s claim, its only option was to claim that Beer World was in breach of the Lease based upon the failure to take possession of the Premises. 40. If Beer World was in breach of the Lese, it required Plaintiff to give Beer World written notice of the alleged breach (i.e., failure to take possession of the Premises) and provide it thirty (30) days to cure. 41. The Lease also states that “[if] Tenant is pursuing a cure with reasonable diligence, such event will not be considered a default.” {M1133145.1} 5 5 of 8 FILED: ROCKLAND COUNTY CLERK 03/21/2023 09:14 AM INDEX NO. 030709/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/21/2023 42. Plaintiff breached the Lease by failing to provide Beer World with written notice of the breach and giving it an opportunity to cure. 43. Beer World obtained its liquor license for the Premises on March 1, 2023, but Plaintiff has refused and continues to refuse to honor the terms of the Lease. 44. Based upon the foregoing, Beer World is entitled to declaratory judgment that the Lease has not been terminated and is in full force and effect. 45. Based upon the foregoing, Beer World is entitled to injunctive relief requiring Plaintiff to comply with the terms of the Lease. AS AND FOR A SECOND COUNTERCLAIM (Breach of Contract) 46. Beer World hereby repeats and realleges each and every allegation contained hereinabove as if fully set forth and enumerated herein. 47. Plaintiff is in breach of the Lease. 48. As a result of Plaintiff’s breach, Beer World has suffered, and will continue to suffer, damages in an amount to be determined at trial. 49. Based upon the foregoing, Beer World is entitled to a judgment against Green in an amount to be determined at trial, plus interest pursuant to statute, attorney’s fees, costs and disbursements. WHEREFORE, Beer World demand judgment (1) dismissing the complaint as against it with attorneys' fees, costs and disbursements; (2) on the first counterclaim for declaratory judgment that the Lease has not been terminated and is in full force and effect; (3) on the first counterclaim for injunctive relief ordering Plaintiff to comply with the terms of the Lease; (4) on the second counterclaim for breach of contract for damages in an amount to be determined at {M1133145.1} 6 6 of 8 FILED: ROCKLAND COUNTY CLERK 03/21/2023 09:14 AM INDEX NO. 030709/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/21/2023 trial, plus contractual and/or statutory interest; (5) on the counterclaims, for a judgment for Beer World’s attorneys' fees, costs and disbursements, plus statutory interest; (6) for such other and further relief as the Court deems just and proper. Dated: March 21, 2023 MAYNARD, O'CONNOR, SMITH & CATALINOTTO, LLP /s/Justin W. Gray Justin W. Gray, Esq. Attorneys for Defendant, Crazy Beer World, Inc. Office and Post Office Address 6 Tower Place Albany, New York 12203 (518) 465-3553 –phone gray@moscllp.com – e-mail TO: Brian K. Condon, Esq. VIA ECF Condon Paxos PLLC Attorney for Plaintiff 55 Old Turnpike Road – Suite 502 Nanuet, New York 10954 (845) 627-8500 – phone Brian@CondonPaxos.com – e-mail cc: Warren B. Rosenbaum, Esq. VIA ECF F. Michael Ostrander, Esq. Woods Oviatt Gilman LLP Attorneys for Defendant, Greenport Hudson Associates, LLC 1900 Bausch & Lomb Place Rochester, New York 14604 (585) 987-2800 – phone fostrander@woodsoviatt.com – e-mail wrosenbaum@woodsoviatt.com – e-mail cc: Jeffrey Spiegel, Esq. VIA ECF Stephen Rickershauser, Esq. Lewis Brisbois Bisgaard & Smith LLP Attorneys for Defendant, Morgenstern Devoesick, PLLC 77 Water Street - Suite 2100 New York, New York 10005 212.232.1300 – phone jeffrey.spiegel@lewisbrisbois.com – e-mail stephen.rickershauser@lewisbrisbois.com – e-mail {M1133145.1} 7 7 of 8 FILED: ROCKLAND COUNTY CLERK 03/21/2023 09:14 AM INDEX NO. 030709/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/21/2023 ATTORNEY'S VERIFICATION STATE OF NEW YORK : : ss.: COUNTY OF ALBANY : The undersigned, an attorney admitted to practice in the Courts of New York State shows: Deponent is Justin W. Gray, a partner with the law firm of MAYNARD, O'CONNOR, SMITH & CATALINOTTO, LLP, the attorneys of record for Crazy Beer World, Inc. in the within action; deponent has read the foregoing Answer and knows the contents thereof; the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters deponent believes it to be true. This verification is made by deponent pursuant to CPLR 3020[d][3]. The grounds of deponent's belief as to all matters not stated upon deponent's knowledge are as follows: Investigation made and information acquired. The undersigned affirms that the forgoing statements are true, under the penalties of perjury. Dated: March 21, 2023 /s/Justin W. Gray JUSTIN W. GRAY {M1133145.1} 8 8 of 8