Motion for Stipulated Judgment in Artisanal 2015, Llc v. 387 Park South L.L.C.| Trellis.Law

On January 01, 2017 a Motion-Secondary was filed involving a dispute between Artisanal 2015, Llc, and 387 Park South L.L.C., for Commercial Division (yekkowstone injuction) in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEVV YORK
Index No.: 650103/2017
ARTISANAL 2015, LLC, (NYSCEF CASE)

Plaintiff, AFFIRMATION
IN SUPPORT
-against-
Hon. Shirley Werner
Kornreich, J.S.C.
387 PARK SOUTH L.L.C.,
(Motion Seq. 003)
Defendant.

RICARDO M. VERA, an attorney duly admitted to practice law before the Courts of the

State of New York, hereby affirms the truth of the following under the penalties of perjury and

pursuant to CPLR 2106:

1. I am a partner of Newman Ferrara LLP, attorneys for defendant 387 Park South

L.L.C. ("387" or "Landlord"),l and am fully familiar with the facts and circumstances set forth

below.

2. This affirmation is respectfully submitted in su ort of Landlord's within order to

show cause (Motion Seq. 003), for an Order (a) pursuant to, inter alia, CPLR 6314, vacating the

Yellowstone injunction and all stays granted by this Court pursuant to the Decision/Order, dated

February 8, 2017 and entered February 9, 2017 (Hon. Shirley Werner Kornreich, J.S.C.) (the

"2/8/17 Order") based upon, inter' alia, Tenant's failure to pay directed use and occupancy and,

upon such vacatur, and (b) awarding Landlord a judgment of ejectment, as demanded in

Landlord's Tenth and/or Eleventh Counterclaims of its Amended Answer with Counterclaims,

dated May 31, 2017(the "Amended Answer").

1 Unless otherwise indicated herein, all. capitalized terms and/or exhibits shall have the meanings set forth in the
accompanying affidavit of Clare Adams(the "Adams Affidavit").

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3. As is demonstrated infra, and in the accompanying Adams Affidavit and

memorandum of law, Landlord's motion should be granted, in all respects.

PRELIMINARY STATEMENT

4. This action was commenced in response to Landlord's certain Notice to Cure,

dated December 21, 2016 (the "12/21/16 Notice"), which provided that Landlord would be

terminating Plaintiff's tenancy if it failed to cure its defaults in the payment of rent and

additional rent.

5. Rather than remit payment, Plaintiff commenced this action and obtained

Yellowstone injunctive relief -- expressly conditioned by the Court upon Plaintiff's payment of

use and occupancy, pursuant to the parties' lease.

6. Since the issuance of the 12/21/16 Notice and commencement of this action,

Landlord has had to issue four 4 additional cure notices based on Plaintiff's subsequent lease-

defaults.2 Further, pursuant to the parties' lease, Plaintiff was required to open its restaurant on

or before November 30, 2016 -- one year after Plaintiff took possession of the subject premises.

Despite such requirement, Plaintiff has failed to open for business -- let alone build-out the

premises -- to date.

7. Indeed, there is overwhelming evidence that Plaintiff's lack of funds and/or

insolvency has prevented it from opening for business. (In fact, three of Landlord's cure notices

issued during the pendency of this action concern mechanic's liens issued against the subject

premises in relation to Plaintiff's work.)

2 One such notice to cure concerning Plaintiff's failure to maintain requisite insurance coverage on the subject
premises prompted yet another Yellowstone action, entitled A~tisanal 201S, LLC v. 387 Pas~k South, L.L.C., Index
No. 653238/2017(the "Second. Yellowstone Action"), which is currently pending before this Court.

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8. Pertinent to this motion, Plaintiff has repeatedly attempted to pay use and

occupancy by checks drawn from an account maintained by an entity known as Two Thousand

Fifteen Artisanal LLC ("TTFA LLC").3 Such willful and repeated conduct violates the 2/8/17

Order, a so-ordered stipulation between the parties and the subject lease.

9. Beyond Plaintiff's willful and calculated noncompliance (which alone constitutes

a violation of the 2/8/17 Order), several of its own checks were dishonored when submitted after

Landlord rejected TTFA LLC's tenders.

10. Furthering its pattern of disregard for the 2/8/17 Order and a so-ordered

stipulation (which expressly provided that all payments going forward were to be made by

Plaintiff, and not other entities), Plaintiff submitted checks purportedly representing July 2017

use and occupancy from (yet again) an account maintained in TTFA LLC's name. Accordingly,

such payments were rejected by Landlord, and Plaintiff stands in violation ofthe 2/8/17 Order.

11. Given Plaintiff's repeated, and deliberate, refusal to comply with the conditions to

maintain the Yellowstone injunction issued by this Court, it is respectfully submitted that all

injunctions and stays should be lifted in connection with the 12/21/16 Notice.

12. Additionally, upon such vacatur, the Court should award Landlord a judgment of

ejectment, removing Plaintiff and any other occupants from possession of the subject premises,

as sought in the Amended Answer. (Indeed, pursuant to the controlling authority, a tenant's

failure to pay court-ordered use and occupancy during the pendency of an action entitles the

landlord to a judgment of ejectment.)4

RELEVANT BACKGROUND

As is detailed infra, while Landlord agreed to accept payment from TTFA LLC on two (2) occasions, as a
courtesy, Plaintiff was expressly advised that such accommodations and exceptions would not be made, going
forward.
4 See accompanying memorandum oflaw.

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12/21/16 Notice

13. Pursuant to the 10/5 Lease, Landlord demised the Initial Premises to Tenant, for

use as a restaurant, which was amended the First Amendment. See Exhibits A and B.

14. By the First Amendment, among other things, Plaintiff leased the Additional

Premises. See Exhibit B.

15. Pursuant to the 10/5 Lease, Landlord performed certain work in the Initial

Premises (i.e., "Landlord's Work," as that term is defined in the Initial Lease).

16. Landlord delivered possession of the Initial Premises to Plaintiff on or about

December 1, 2015. See Adams Affidavit at ¶ 7.

17. Landlord's delivery of possession of the Initial Premises to Plaintiff was

memorialized in the Commencement Date Agreement. See Exhibit C.

18. According to the 10/5 Lease, Plaintiff's obligation to pay Fixed Rent(as that term

is defined in the 10/5 Lease), commenced three hundred and thirty (330) days after delivery of

possession of the Initial Premises.

19. And, pursuant to the Commencement Date Agreement, the parties agreed that the

Fixed Rent Commencement Date (as that term is defined in the Initial Lease) was October 26,

2016. See Exhibit A at §1.9; see also Exhibit C at ¶ 2.

20. The rent due for the Additional Premises commenced immediately upon

execution of the First Amendment. See Exhibit B at § 4.1.

21. Accordingly, Landlord invoiced Tenant for Fixed Rent and Additional Rent (as

those terms are defined in the Lease), and Tenant failed to pay same.

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22. Accordingly, Landlord caused the 12/21/16 Notice (annexed as Exhibit D)to be

served upon Tenant, advising Tenant that it was in default, and that Landlord would be

terminating the Lease upon Tenant's failure to cure such default.

23. Rather than remit payment, Tenant commenced this action and simultaneously

filed an order to show cause seeking a Yellowstone injunction.

2/8/17 Order

24. The Court conditionally granted Plaintiff's motion for a Yellowstone injunction by

way of the 2/8/17 Order. See Exhibit E.

25. The 2/8/17 Order was expressly conditioned upon Plaintiff's payment of use and

occupancy. Id.

26. To that end, the 2/8/17 Order pertinently provides:

Upon the foregoing papers, it is ordered that this motion is
granted and a Yellowstone issued on condition that
plaintiff pay into court the alleged rent owed until January
1, 2017 and pay to landlord defendant January and
February rent(U&O)pursuant to the lease and continue to
pay this U&O throughout these proceedings without
prejudice to either side, and that February and January rent
is to be paid on or before February 9, 2017, the money is to
be paid into court on or before February 14, 2017, and all
future U&O is to be paid by the 15t of the month to the
landlord.(Emphasis added.)

See Exhibit E.

27. Accordingly, Plaintiff's failure to properly and timely pay use and occupancy (as

set forth below and in the Adams Affidavit) constitutes a breach of the condition and mandates

vacatur of the Yellowstone injunction.

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Pleadings

28. Subsequent to issuance ofthe 2/8/17 Order:

• Plaintiff filed a Verified Complaint, dated April 3, 2017
(the "Complaint," annexed as Exhibit S);

• Landlord filed a Verified Answer with Affirmative
Defenses and Counterclaims, dated April 21, 2017 (the
"Answer," annexed as Exhibit T);

• Plaintiff filed a Verified Reply to Counterclaims, dated
May 11, 2017(the "Reply," annexed as Exhibit U);

• Landlord filed an Amended Verified Answer with
Affirmative Defenses and Counterclaims, dated May 31,
20175 (the "Amended Answer," annexed. as Exhibit V); and

• Plaintiff filed a Verified Reply to Amended Counterclaims,
dated June 16, 2017 (the "Amended Reply," annexed as
Exhibit W).

Improper Remittur of Use and Occupancy

29. Notwithstanding the requirements (under the 2/8/17 Order and Lease) that

Plaintiff (i.e., the tenant-entity) make use and occupancy payments, the parties agreed by

Stipulation, dated February 10, 2017 and so-ordered February 15, 2017 (Hon. Shirley Werner

Kornreich, J.S.C.)(the "So-Ordered Stipulation," annexed as Exhibit F)that the initial payments

required by the 2/8/17 Order could be made by an entity other than Plaintiff. See Exhibit F at ¶ 1.

30. The So-Ordered Stipulation expressly provided that "Defendant is accepting the

Payments, as a one-time accommodation to Plaintiff, and Defendant reserves the right to insist

upon future payments being made by the named tenant, only." Id. at ¶ 3.

5 Significant to this motion, the Amended Answer contains two (2) Counterclaims seeking ejectment against
Plaintiff See Exhibit V at ¶¶ 263 — 276.

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31. Yet, Sarid Drory ("Mr. Drory") remitted two checks (checks numbers 1027 and

1028, and both dated March 1, 2017)(together, the "March U&O Checks," annexed as Exhibit

G)in connection with PlaintiffsCourt-Ordered use and occupancy during the pendency of this

litigation. See Adams Affidavit.

32. The March U&O Checks indicated that they were drawn from an account of an

entity known as Two Thousand Fifteen Artisanal LLC (i.e., TTFA LLC)—not Plaintiff. As is its

right under the Lease, Landlord advised Plaintiff that it would only accept checks from drawn

from an account held by the Plaintiff entity. See Adams Affidavit.

33. By email, dated March 2, 2017 (the "3/2/17 Email," annexed as Exhibit H), Mr.

Drory indicated, among other things, that the bank account held by Plaintiff was closed

approximately tvvo (2) months prior. Mr. Drory further advised that a different entity -- TTFA

LLC -- had "all the money." See Exhibit H; see also Adams Affidavit.

34. In good-faith, by letter, dated March 3, 2017 (the "3/3/17 Letter," annexed as

Exhibit I), Landlord advised Plaintiff that it would make one snore exception and accept payment

from TTFA LLC, without prejudice. See Adams Affidavit.

A. April U&O Checks

35. Despite being on notice by the 2/8/17 Order, So-Ordered Stipulation and 3/3/17

Letter (as well as by the Lease's requirements), Plaintiff(yet again) submitted three (3) checks

(check number 1071 and dated March 31, 2017, check number 1072 and dated April 1, 2017 and

check number 1073 and dated March 31, 2017)(together, the "April U&O Checks," annexed as

Exhibit J) -- all drawn from an account of TTFA LLC, purporting to pay use and occupancy for

Apri12017. See Adams Affidavit.

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36. By letter, dated April 4, 2017 (the "4/4/17 Letter," annexed as Exhibit K),

Landlord duly rejected the April U&O Checks, and reminded Plaintiff of the obligation that use

and occupancy payments be made by Plaintiff itself.

B. May U&O Checks

37. In connection with May 2017 use and occupancy, Plaintiff remitted two (2)

checks (numbers 1095 and 1096 and dated May 1, 2017)(the "May U&O Checks," annexed as

Exhibit L), both (again) drawn from an account of TTFA LLC, purporting to pay use and

occupancy for May 2017. See Adams Affidavit.

38. By letter, dated May 3, 2017 (the "5/3/17 Letter," annexed as Exhibit M),

Landlord (yet again) reminded Plaintiff of its obligations, and duly rejected the May U&O

Checks.

39. The 5/3/17 Letter pertinently advised:

Notwithstanding the foregoing, your client has again remitted two
(2) Bank of America checks (numbers 1095 and 1096), from a
Non-Tenant Entity for May 2017 use and occupancy, which
(again) are rejected and returned, given, inter alias

(a) the Court's U&O Order, which requires the Tenant-entity
to pay the use and occupancy;

(b) Section 2.3 of the parties' lease (dated October 5, 2015),
which requires remittance ofrent by Tenant-entity;

(c) our agreement with your client, dated March 3, 201.7,
wherein we note that the rent acceptance from athird-party was "a
second and final accommodation to Tenant;"

(d) certain litigation and/or bankrupticy issues, concerning
"Artisanal" entities; and

(e) our April U&O Letter, notifying your office that third-party
payinent(s) would no longer be accepted.

E'~

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See Exhibit M.

C. June U&O Checks)

40. Notwithstanding the foregoing, Plaintiff submitted a check in June 2017 from its

own account (check number 1018 and dated June 1, 2017) (the "First June U&O Check,"

annexed as Exhibit N), purporting to pay use and occupancy for June 2017. See Adams

Affidavit.

41. Yet, the June U&O Check was returned for insufficient funds. See Exhibit N; see

also Adams Affidavit.

42. Plaintiff then submitted a second check (check number 1023 and dated June 9,

2017)(the "Second June U&O Check," annexed as Exhibit O), which check was also returned

for insufficient funds. See Exhibit O; see also Adams Affidavit.

43. As set forth in the Adams Affidavit, Plaintiff belatedly remitted replacement

checks in connection with April, May and/or June 2017 use and occupancy. Yet, Plaintiff

remained in default as to certain items of additional rent, pursuant to the Lease. See Adams

Affidavit.

D. July U&O Checks

44. In July 2017, Plaintiff submitted two (2) checks (check numbers 1133 and 1134

and both dated July 1, 2017)(together, the "July U&O Checks," annexed as Exhibit P), which

checks were (yet again) drawn from an account of TTFA LLC, rather than a bank account

maintained by Plaintiff. Additionally, while the use and occupancy due pursuant to Landlord's

invoice (dated June 28, 2017) is $140,366.70, the rejected payments were deficient as they

totaled $109,152.08. See Adams Affidavit.

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45. By letter dated, July 5, 2017 (the "7/5/17 Letter,'" annexed as Exhibit ),

Landlord duly rejected the July U&O Checks.

46. As the record shows, Tenant's foregoing conduct indicates a repeated and willful

disregard for this Court's directives, and Plaintiff's obligations pursuant to the Lease.

47. Because Plaintiff has no intention of complying with its use and occupancy

obligations (which obligations were an express condition to the grant of Yellowstone relied, we

respectfully submit that all injunctions/stays be vacated, and the Court issue a judgment of

ejectment, pursuant to Landlord's Tenth and/or Eleventh Counterclaims.

Tenant's (Additional) Violative Conduct

48. Beyond Tenant's deliberate noncompliance with directed use and occupancy

(which warrants the grant of this motion), the Court should note Plaintiff's following misconduct

and bad-faith.

A. Plaintiffs Failure to Complete Tenant's Work

49. The Initial Lease required Tenant to open for business no later than 365 days

following delivery of possession of the premises from Landlord to Tenant. See Exhibit A at

§ 1.9.

50. As evidenced by the Commencement Date Agreement, the parties agreed that

Landlord delivered possession to Tenant on December 1, 2015. See Exhibit C at ¶ 2.

51. Plaintiff was thus required to open for business no later than November 30, 2016.

52. That date has passed, and the Subject Premises are nowhere near ready for use as

a restaurant.6

6 Pursuant to Article 3.4 of the 10/5 lease, Landlord is entitled to a per diem charge, as additional rent, in the sum of
$100 for each day Plaintiff has not opened for business beyond the requisite opening date. See E~ibit A,¶ 3.4; see
also Exhibit R.

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53. Upon information and belief, Plaintiffs delay in completing its build-out of the

Subject Premises is attributable to a lack of funds and/or its insolvency, and its baseless

allegations are a mere pretext to avoid paying rent and/or complete Tenant's Work, as that term

is defined in the 10/5 Lease.

B. Mechanic's Liens

54. In addition to failing to open for business or pay rent as required by the Lease,

Plaintiff caused three mechanic's liens to be filed against the Building: (a) a certain "Notice

Under Mechanic's Lien Law" dated January 6, 2017 (the "1/6/17 Lien," annexed as Exhibit X),

which was recorded with the County Clerk for New York County on or about January 17, 2017;

(b) a certain "Notice Under Mechanic's Lien Law," dated January 23, 2017 (the "1/23/17 Lien,"

annexed as Exhibit Y), which was recorded with the County Clerk for New York County on or

about January 26, 2017; and (c) a certain "Notice Under Mechanic's Lien Law," dated May 10,

2017 (the "5/10/17 Lien," annexed as Exhibit Z), which was recorded with the County Clerk for

New York County on or about May 10, 2017 (the 1/16/17 Lien, 1/23/17 Lien and 5/10/17 Lien,

collectively, the "Mechanic's Liens").

55. As evidenced by the Mechanic's Liens, Plaintiff is experiencing financial

difficulties in connection with the payment for Tenant's Work, as that term is defined in the

Lease.

56. Upon information and belief, the Mechanic's Liens have each been discharged but

only after forcing Landlord to incur the expense ofissuing cure notices,' and after the Landlord's

Copies of the Notices to Cure served by Landlord in connection with the Mechanic's Liens are annexed as Exhibit
AA.

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grant of several extensions, and even Plaintiff's filing of a frivolous bankruptcy proceeding --

which proceeding was dismissed on Plaintiff's own motion.$

57. Further, on or about March 30, 2017, DOB issued a "Stop Work Order," dated

March 30, 2017 (the "Stop Work Order," annexed as Exhibit CC)in connection with Plaintiff's

work on the Subject Premises.

58. The Stop Work Order provided, among other things, that the applicant of record

with the DOB (who was, upon information and belief, Plaintiff's architect) had withdrawn its

application. See Exhibit CC.

59. The Stop Work Order further directed that all work in the Subject Premises be

stopped immediately. Id.

60. Upon information and belief, the Stop Work Order was dismissed on or about

April 17, 2017.9

Plaintiffs Unclean Hands and Bad Faith

A. Other Litigations

61. Upon information and belief, Sarid Drory, a principal of Plaintiff, is currently, or

has been, defendant in several. actions which evidence his bad faith.

62. By way of example, as set forth in the Amended Answer, Mr. Drory and/or

Artisanal Fromagerie &Bistro, LLC ("AFB LLC") — an entity of which, upon information and

belief, Mr. Drory is a controlling principal —are, or were, parties to:

g A copy of the Order of the Bankruptcy Court for the Southern District of New York Order, dated and entered on
March 24, 201'7 (Hon. Mary Kay Vyskocil, U.S.B.J.) dismissing the bankruptcy proceeding on Plaintiff's (debtor
therein) motion is annexed as Exhibit BB.
~ Such Stop Work Order is just one example of delays and/or stop works caused. by Plaintiff's failure to pay its
contractors and/orbad-faith.

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a. Bronx County Supreme Court litigation captioned Dairyland USA
Corp. v. Artisanal Fromagerie & Bistro, LLC, et al., Index No.
25783/2015E;

b. Kings County Supreme Court litigation captioned Mendon Truck
Leasing &Rental v. Artisanal Fi~omagerie ~i Bistro, LLC, Index
No. 511400/2014;

c. Westchester Supreme Court litigation captioned Yellowstone
Capital, Inc. v. A~tisanal Fromagerie c~ Bistro LLC, Index No.
58408/2016;

d. Litigation in this Court captioned Wells Fargo Vendor Financial
Services, LLC v. Artisanal Fromage~ie ~ Bistro, LLC, Index No.
652148/2016; and

e. a class action in the United States District Court for the Southern
District of New York ("SDNY") captioned, Orue, et al. v.
Artisanal F~omage~ie c~ Bistro, LLC, Case No. 1:15-cv-05727-
KPF (the "Class Action").

63. Upon information and belief, AFB LLC was a named defendant in the Class

Action.

64. Upon information and belief, Mr. Drory was a named defendant in the Class

Action.

65. Upon information and belief, the plaintiffs in the Class Action accuse, among

other parties, Mr. Drory, personally, as well as AFB LLC of, among other things, failing to pay

them the federally mandated minimum wage, failing to timely pay those improperly-low wages,

forcing their restaurant employees to engage in an illegal tip-pooling scheme, and retaliating

against employees who tried to enforce their rights.

66. Upon information and belief, the Class Action was settled, in whole or in part,

and the parties in that case reached an agreement.

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67. By way of letter motion, dated March 23, 2017 (the "SDNY Contempt Motion,"

annexed as Exhibit DD), counsel for the plaintiffs in the Class Action moved to hold Mr. Drory

in contempt of that court for, among other things, snaking knowingly false statements to the

judge therein and fraudulently divesting of and/or concealing assets.

68. In the SDNY Contempt Motion, counsel for plaintiffs therein indicates that Mr.

Drory represented to the SDNY in open court that he: (a) is not an owner of the new Artisanal

location at issue in this action;(b) would not receive any payments or money therefrom; and (c)

"had nothing to do with executing the new lease." See Exhibit DD at § I. The Contempt Motion

also alleges that Mr. Drory failed to comply with court-ordered discovery obligations regarding

his assets. Id. at § 2.

69. On or about April 3, 2017, the SDNY issued an Order, dated April 3, 2017(Hon.

Katherine Polk Failla, U.S.D.J.)(the"4/3/17 SDNY Order," annexed as Exhibit EE), noting that

Mr. Drory exhibited an unwillingness to abide by his obligations pursuant to the parties'

settlement agreement. The 4/3/17 SDNY Order further provided that the SDNY was prepared to

hold Mr. Drory in contempt, and potentially incarcerate him in order to compel him to comply

with his numerous financial obligations in that case.

70. In fact, Defendant was served with a subpoena duces tecum by the plaintiffs in the

Class Action (annexed as Exhibit LL), which it complied with after providing Plaintiff with any

opportunity to resolve the underlying issues, in good-faith.'o

to Likewise,
Landlord was recently served with an Information Subpoena, dated June 23, 2017 (annexed as Exhibit
MM), in the action captioned V. V. Specialty Foods LLC d/b/a Valley View Produce v. A~tisanal F~onaagerie &
Bistro LLC d/b/a Ar-tisanal Bistro, Civil Court of the City of New York, County of Kings, Index No. CV-021438-
16/KI.

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71. The foregoing litigations exhibit, inter alia, a pattern of defrauding

vendors/employees and/or Mr. Drory defaulting on his obligations and forcing parties with

whom he does business to commence litigation in order to receive payment for their goods and

services.

72. Upon information and belief, AFB LLC filed a voluntary bankruptcy petition on

or about August 12, 2016 in the United States Bankruptcy Court for the Southern District of New

York (the "AFB Bankruptcy"). A copy ofthe Petition is annexed as Exhibit FF.

73. The bankruptcy petition filed by AFB LLC in the AFB Bankruptcy indicates that

AFB has "$1,000,001 - $10 million" in liabilities and only "$0-$50,000" in assets.l l

74. As set forth above, Plaintiff filed a voluntary bankruptcy petition on or about

March 9, 2017 in the United States Bankruptcy Court for the Southern District of New York

("Plaintiff's Bankruptcy").

75. Upon information and belief, Plaintiff's Bankruptcy was dismissed on Plaintiff's

application on or about March 23, 2017. See Exhibit BB.

76. In its motion to dismiss Plaintiff's Bankruptcy, Plaintiff admitted that it filed for

bankruptcy proceeding solely to thwart Landlord from terminating Plaintiff's tenancy based on

its Mechanic's Liens defaults. A copy of Plaintiff's motion to dismiss its bankruptcy proceeding

is annexed as Exhibit GG.

B. Abusive/Violative Behavior

77. Throughout Plaintiff's tenancy, Mr. Drory has engaged in harassing behavior

towards Landlord's employees.

~~ Such filing further supports that notion that financial. diffcultiesare preventing Plaintiff from. completing its
build-out of the Premises and paying its rent.

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78. By way of example, as set forth in the verified Amended Answer, Mr. Drory

routinely hurls abusive language at Landlord's employees and/or agents, schedules meetings and

fails to attend and, on one occasion, implied that he would go to the home of one of Landlord"s

agents. See Exhibit V at § V(B).

i. Drory 1/25/17 Email

79. To that end, by email, dated January 25, 2017 (the "1/25/17 Email," annexed as

Exhibit HH), Mr. Drory expressed frustration at not receiving a response from Michael Garcia,

an agent of Landlord and threateningly indicated that, "I'm gonna know in next hr where are u."

[sic] See Exhibit HH.

80. Mr. Drory further indicated "If I don't hear from u I can come to ur office or

house to get ur approval on what we need to move ahead. So what do u prefer that i come to ur

house or the office." [sic] Id.

81. Mr. Garcia never provided Mr. Drory with his home address nor authorized Mr.

Drory to appear at his home and thus interpreted the statements in the 1/25/17 Email as veiled

threats and/or words of intimidation. See Exhibit V at ¶¶ 153-154.

ii. Drory 6/16/17 Email

82. Further, by email, dated June 16, 2017, Mr. Drory pertinently stated to Landlord's

agent:

... when we start the job next week, there will be former police, of
course armed....(Emphasis added.)

83. Therefore, by letter, dated June 20, 2017 (annexed as Exhibit NN), Landlord

demanded, among other things, that Tenant cease and desist from engaging in such threats, under

pain of Landlord seeking appropriate relief.

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C. Insurance Defaults)

84. Additionally, upon information and belief, Tenant's insurance in connection with

the Subject Premises expired and/or lapsed.

85. Accordingly, Landlord served Plaintiff with a Notice to Cure, dated May 9, 2017

(the "5/9/17 Notice," annexed as Exhibit II) advising Plaintiff of its insurance defaulti and

advising it that its failure to provide information that the Subject Premises have been covered by

insurance, as required b~ the parties' Lease, would result in termination of its tenancy.

86. Plaintiff was unable to demonstrate that the Subject Premises were adequately

covered and, instead commenced the Second Yellowstone Action and was granted a temporary

restraining order, dated June 14, 2017 (the "Second TRO," annexed as Exhibit JJ), enjoining

Landlord from terminating Plaintiff's tenancy based on the insurance defaults set forth in the

5/9/17 Notice, pending a hearing of Plaintiff's application fora (second) Yellowstone injunction.

87. Plaintiff's second Yellowstone application is scheduled to be heard by the Court

on July 26, 2017. See Exhibit JJ.

88. It should be noted that Plaintiff's first counsel in this action -- Greenberg Traurig,

LLP ("GT") -- moved this Court to be relieved as Plaintiff's counsel after a breakdown of the

attorney-client relationship. A copy of the affirmation of Hal N. Beerman, dated February 17,

2017, submitted to the Court in support of GT's application to withdraw is annexed as Exhibit

17 of 21
FILED: NEW YORK COUNTY CLERK 07/07/2017 05:58 PM INDEX NO. 650103/2017
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 07/07/2017

89. Further, at a compliance conference on June 29, 2017, Plaintiff's second and

current counsel -- David Rozenholc

Case Info

Judge

Jennifer Schecter Track Judge’s New Case

Case No.

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Document Filed Date

July 07, 2017

Case Filing Date

January 01, 2017

County

Parties

387 Park South L.L.C. Defendant
Artisanal 2015, LLC Plaintiff
BEERMAN, HAL N Attorney for the Plaintiff
CALLAHAN, JANET D. Attorney for the Plaintiff
Donovan, Joseph T Attorney for the Plaintiff
SOLORZANO, NOE Attorney for the Defendants
VERA, RICARDO M Attorney for the Defendants
GARY HOROWITZ Attorney
LUCAS FERRARA Attorneys for Defendants
ALEC OSTROW Attorneys for Defendants
LUCAS ALMONTE Attorney
DANIEL ANSELL Attorney
RICHARD FABER Attorneys for Plaintiffs

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Motion-Secondary: Artisanal 2015, Llc v. 387 Park South L.L.C.

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