Preview
FILED: KINGS COUNTY CLERK 10/26/2023 04:04 PM INDEX NO. 531281/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/26/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
––––––––––––––––––––––––––––––X
MANHATTAN BEACH JEWISH CENTER, : Index No.: __________/23
:
Plaintiff, : AFFIDAVIT IN SUPPORT
: OF MOTION FOR
-against- : SUMMARY JUDGMENT IN
: LIEU OF COMPLAINT
ALEX SHTAYNBERGER a/k/a OLEG :
SHTAYNBERGER, :
:
Defendant.
––––––––––––––––––––––––––––––X
STATE OF NEW YORK )
) ss.:
COUNTY OF KINGS )
Milton Zegerman, being duly sworn, deposes and says:
1. I am the President of Manhattan Beach Jewish Center (“Plaintiff”), a religious
corporation duly organized and existing under the laws of the State of New York. As such, I am
familiar with the facts and circumstances set forth herein based on personal knowledge and my
review of Plaintiff’s books and records.
2. I submit this affidavit in support of Plaintiff’s motion for an Order:
(a) Pursuant to CPLR 3213, granting Plaintiff’s motion for summary
judgment in lieu of a complaint and awarding Plaintiff a money judgment
against Defendant Alex Shtaynberger a/k/a Oleg Shtaynberger
(“Guarantor”), in the sum of $68,000.00, plus interest, and attorneys’ fees
in an amount to be determined by the Court at a hearing or on submission,
as the Court may direct; and
(b) For such other and further relief as the Court deems just and proper.
3. It is respectfully requested that, for the reasons herein, Plaintiff’s motion be
granted in its entirety.
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4. This is an action based upon an instrument for the payment of money only--
namely, the Guaranty, dated April 4, 2022 (the “Guaranty”), given by Guarantor in favor of
Plaintiff, in connection with the School Lease Agreement dated August 25, 2018 between
Shulamith School for Girls of Brooklyn, as tenant, and Plaintiff, as landlord, as amended by
Modification of School Lease Agreement, dated April 4, 2022.
5. Plaintiff is a religious corporation duly organized and existing under the laws of
the State of New York, with a principal office at 60 West End Avenue, Brooklyn, New York.
Attached hereto as Exhibit A is Plaintiff’s Certificate of Incorporation and Certificate of
Change of Name to Manhattan Beach Jewish Center.
6. Upon information and belief, Guarantor is a natural person domiciled at 537 East
9th Street, Brooklyn, New York 11218.
7. Plaintiff is the landlord of the premises comprised of the entire fifth floor,
portions of the sixth floor, and portions of the seventh floor of building known as and located at
60 West End Avenue, Brooklyn, New York 11235, pursuant to a School Lease Agreement
dated August 25, 2018 between non-party Shulamith School for Girls of Brooklyn (“Tenant”),
as tenant, and Plaintiff, as landlord or lessor (the “Initial Lease”). A true and correct copy of the
Initial Lease is attached hereto as Exhibit B.
8. Paragraph 1(b) of the Initial Lease provides, in relevant part, that:
Provided that School is in compliance with all the material terms
and conditions of this Lease both at the time of the School’s
exercise of the renewal option and at the time such renewal term is
scheduled to commence, School shall have the option to extend the
lease term for an additional term of five (5) School Years (the
“Option Period”) with the Option Period commencing at the
beginning of the 2023/2024 School Year. School’s right to extend
the lease term as provided above is conditioned upon School’s
sending written notice of its intention to extend the lease term no
later than July 1, 2022. If School fails to timely send the exercise
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of option notice, School shall forfeit any right to extend the
Lease….
(Exhibit B).
9. On or about April 4, 2022, Plaintiff and Tenant entered into a Modification of
School Lease Agreement, dated April 4, 2022 (“the Modified Lease,” and collectively with the
“Initial Lease,” referred to as the “Lease”). A true and correct copy of the Modified Lease is
attached hereto as Exhibit C.
10. The Modified Lease provides, in pertinent part, the following terms:
4. Commencing September 1, 2021 and continuing for each and
every month during the 2021/2022 and 2022/2023 School Years,
the parties agree that the sum of $3,400 of the monthly base rent of
the School shall be deferred for each of said 20 months
representing the last two school years of the initial term of this
lease. Such rent payment deferrals total the sum of $68,000.
5. The deferred base rental payments of $68,000 shall be repaid at
the rate of $6,800 per month payable on the first day of each of the
months during the first 10 month option period, being the
2023/2024 School Year. Therefore the base rental payments for
each of the 10 months during the 2023/2024 School Year shall be
$29,875 which will include-both-the then current base rent as set
forth in Paragraph 3 above as well as the prior deferred base rentals
as set forth in paragraphs 4 and 5 above.
6. If the School does not exercise its option to renew the lease
pursuant to Paragraph 1(b) of the lease then the total unpaid
deferred portion of the base rentals herein shall be due and payable
in full upon expiration of this lease on June 24, 2023.
***
8. As a condition to Center’s agreeing to defer a portion of the base
rent, as set forth above, a personal guarantee is being executed by
Oleg Shtaynberger, a/k/a Alex Shtaynberger simultaneously with
the execution of this Modification Agreement guaranteeing
payment by the School of the $68,000 deferred base rental
(Exhibit C [emphasis supplied]).
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11. In connection with the Modified Lease, Guarantor executed the Guaranty in favor
of Plaintiff. A true and correct copy of the Guaranty is attached hereto as Exhibit D.
12. Paragraph 1(a) of the Guaranty provides:
The Guarantor hereby absolutely, irrevocably and unconditionally
guarantees that the SIXTY-EIGHT THOUSAND ($68,000)
DOLLARS that the School is obligated to pay to the Center
pursuant to the Paragraph 5 and/or Paragraph 6 of the Modification
of Lease Agreement dated April 4, 2022 between the Center and
the School shall be paid promptly and paid in full when due in
accordance with the provisions thereof. This Guaranty is
unconditional and absolute, and if for any reason such sum shall
not be paid promptly pursuant to the provisions of the Modification
of Lease Agreement, then the Guarantor shall immediately pay
such sum to or for the benefit of the Center regardless [of] whether
or not the Center or any other party shall have taken steps against
the School to collect such sum or enforce such agreement.
13. Paragraph 1(b) of the Guaranty provides:
The Guarantor also absolutely, irrevocably and unconditionally
guarantees to pay the costs incurred by the Center to enforce the
collection of any amounts due under this Guaranty, including
reasonably attorney’s fees.
14. Paragraph 4 of the Guaranty provides, in pertinent part that:
…The Guarantor further covenants and agrees that in the event
Center is required to bring any proceedings against the Guarantor
to enforce the Obligations, the Guarantor shall reimburse Center
for any and all expenses incurred, including, but not limited to
reasonable attorney’s fees incurred in connection therewith…
(Exhibit D).
15. Paragraph 6 of the Guaranty provides that the “Center shall provide Guarantor
with twenty (20) days written notice prior to enforcing any of the provisions of this Guaranty”
(Exhibit D).
16. Tenant did not exercise its option to renew the Lease.
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17. Therefore, the total unpaid deferred portion of the base rentals, in the total amount
of $68,000 (the “Guaranteed Rent”), became due and payable in full upon expiration of the
Lease on June 24, 2023, pursuant to paragraphs 5 and 6 of the Modified Lease (Exhibit C).
18. Neither Tenant nor Guarantor have paid any amount of the Guaranteed Rent to
Plaintiff, which became due and payable in full upon expiration of the Lease on June 24, 2023.
19. On September 18, 2023, Plaintiff duly served Guarantor with a 20-Day Notice
and Demand for Payment Pursuant to Guaranty, dated September 18, 2023 (the “Demand”),
demanding payment from Guarantor of the Guaranteed Rent by October 16, 2023, that being
more than twenty days after service of the Demand. A true and correct copy of the Demand,
along with proof of service, is annexed hereto as Exhibit E.
20. The Demand further put Guarantor on Notice that, in the event Guarantor failed to
pay the full amount of the Guaranteed Rent by October 16, 2023, Guarantor would enforce the
terms of the Guaranty against Guarantor in an action in the Supreme Court of the State of New
York, and would seek to recover the costs incurred by Plaintiff to enforce collection of any
amounts due under the Guaranty, including reasonable attorneys’ fees.
21. To date, neither Tenant nor Guarantor has paid the Guaranteed Rent to Plaintiff.
22. Pursuant to the Guaranty, Guarantor is absolutely and unconditionally obligated
to pay Plaintiff the Guaranteed Rent and Plaintiff’s reasonable attorneys’ fees, plus interest.
23. Accordingly, pursuant to the Guaranty, it is respectfully requested that the Court
grant Plaintiff’s motion in its entirety, and issue a money judgment against Guarantor in the sum
of the Guaranteed Rent equal to $68,000, plus pre-judgment interest from June 24, 2023.
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24. In addition, it is respectfully requested that the Court award Plaintiff its attorneys’
fees incurred in enforcing the Guaranty, in an amount to be determined at a hearing or on
submission, as the Court may direct.
25. Notably, Tenant currently holds over in possession of the Premises without
Plaintiff’s permission. On August 15, 2023, Plaintiff commenced a summary holdover
proceeding against Tenant, captioned Manhattan Beach Jewish Center v Shulamith School for
Girls of Brooklyn, et al., LT Index No. 324616-23/KI, seeking, inter alia: (i) a judgment of
possession and warrant of eviction, and (ii) a money judgment against Tenant for arrears in the
amount of $218,446.02, with interest; and (iii) a judgment for the value of Tenant’s use and
occupancy of the Premises to the date Plaintiff recovers possession.
26. For the foregoing reasons, as well as those set forth in the accompanying
memorandum of law, Plaintiff’s motion should be granted in its entirety, and Plaintiff should be
awarded a judgment against Guarantor for the Guaranteed Rent, plus pre-judgment interest, as
well as Plaintiff’s reasonable attorneys’ fees incurred in enforcing the terms of the Guaranty.
[SIGNATURE PAGE TO FOLLOW]
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CERTIFICATION OF COUNSEL
Ethan R. Cohen, Esq., an attorney duly admitted to the practice of law in the Courts of
the State of New York, does hereby affirm, pursuant to new Uniform Civil Rules Section 202.8-
b, that the word count of the processing system used to prepare the aforesaid document indicates
that the document contains no more than 1,689 words, exclusive of the caption, table of contents,
table of authorities, and signature block, and this Certificate.
__________________________
ETHAN R. COHEN
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Preview
FILED: KINGS COUNTY CLERK 10/26/2023 04:04 PM INDEX NO. 531281/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/26/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ––––––––––––––––––––––––––––––X MANHATTAN BEACH JEWISH CENTER, : Index No.: __________/23 : Plaintiff, : AFFIDAVIT IN SUPPORT : OF MOTION FOR -against- : SUMMARY JUDGMENT IN : LIEU OF COMPLAINT ALEX SHTAYNBERGER a/k/a OLEG : SHTAYNBERGER, : : Defendant. ––––––––––––––––––––––––––––––X STATE OF NEW YORK ) ) ss.: COUNTY OF KINGS ) Milton Zegerman, being duly sworn, deposes and says: 1. I am the President of Manhattan Beach Jewish Center (“Plaintiff”), a religious corporation duly organized and existing under the laws of the State of New York. As such, I am familiar with the facts and circumstances set forth herein based on personal knowledge and my review of Plaintiff’s books and records. 2. I submit this affidavit in support of Plaintiff’s motion for an Order: (a) Pursuant to CPLR 3213, granting Plaintiff’s motion for summary judgment in lieu of a complaint and awarding Plaintiff a money judgment against Defendant Alex Shtaynberger a/k/a Oleg Shtaynberger (“Guarantor”), in the sum of $68,000.00, plus interest, and attorneys’ fees in an amount to be determined by the Court at a hearing or on submission, as the Court may direct; and (b) For such other and further relief as the Court deems just and proper. 3. It is respectfully requested that, for the reasons herein, Plaintiff’s motion be granted in its entirety. 1 of 8 FILED: KINGS COUNTY CLERK 10/26/2023 04:04 PM INDEX NO. 531281/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/26/2023 4. This is an action based upon an instrument for the payment of money only-- namely, the Guaranty, dated April 4, 2022 (the “Guaranty”), given by Guarantor in favor of Plaintiff, in connection with the School Lease Agreement dated August 25, 2018 between Shulamith School for Girls of Brooklyn, as tenant, and Plaintiff, as landlord, as amended by Modification of School Lease Agreement, dated April 4, 2022. 5. Plaintiff is a religious corporation duly organized and existing under the laws of the State of New York, with a principal office at 60 West End Avenue, Brooklyn, New York. Attached hereto as Exhibit A is Plaintiff’s Certificate of Incorporation and Certificate of Change of Name to Manhattan Beach Jewish Center. 6. Upon information and belief, Guarantor is a natural person domiciled at 537 East 9th Street, Brooklyn, New York 11218. 7. Plaintiff is the landlord of the premises comprised of the entire fifth floor, portions of the sixth floor, and portions of the seventh floor of building known as and located at 60 West End Avenue, Brooklyn, New York 11235, pursuant to a School Lease Agreement dated August 25, 2018 between non-party Shulamith School for Girls of Brooklyn (“Tenant”), as tenant, and Plaintiff, as landlord or lessor (the “Initial Lease”). A true and correct copy of the Initial Lease is attached hereto as Exhibit B. 8. Paragraph 1(b) of the Initial Lease provides, in relevant part, that: Provided that School is in compliance with all the material terms and conditions of this Lease both at the time of the School’s exercise of the renewal option and at the time such renewal term is scheduled to commence, School shall have the option to extend the lease term for an additional term of five (5) School Years (the “Option Period”) with the Option Period commencing at the beginning of the 2023/2024 School Year. School’s right to extend the lease term as provided above is conditioned upon School’s sending written notice of its intention to extend the lease term no later than July 1, 2022. If School fails to timely send the exercise -2- 2 of 8 FILED: KINGS COUNTY CLERK 10/26/2023 04:04 PM INDEX NO. 531281/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/26/2023 of option notice, School shall forfeit any right to extend the Lease…. (Exhibit B). 9. On or about April 4, 2022, Plaintiff and Tenant entered into a Modification of School Lease Agreement, dated April 4, 2022 (“the Modified Lease,” and collectively with the “Initial Lease,” referred to as the “Lease”). A true and correct copy of the Modified Lease is attached hereto as Exhibit C. 10. The Modified Lease provides, in pertinent part, the following terms: 4. Commencing September 1, 2021 and continuing for each and every month during the 2021/2022 and 2022/2023 School Years, the parties agree that the sum of $3,400 of the monthly base rent of the School shall be deferred for each of said 20 months representing the last two school years of the initial term of this lease. Such rent payment deferrals total the sum of $68,000. 5. The deferred base rental payments of $68,000 shall be repaid at the rate of $6,800 per month payable on the first day of each of the months during the first 10 month option period, being the 2023/2024 School Year. Therefore the base rental payments for each of the 10 months during the 2023/2024 School Year shall be $29,875 which will include-both-the then current base rent as set forth in Paragraph 3 above as well as the prior deferred base rentals as set forth in paragraphs 4 and 5 above. 6. If the School does not exercise its option to renew the lease pursuant to Paragraph 1(b) of the lease then the total unpaid deferred portion of the base rentals herein shall be due and payable in full upon expiration of this lease on June 24, 2023. *** 8. As a condition to Center’s agreeing to defer a portion of the base rent, as set forth above, a personal guarantee is being executed by Oleg Shtaynberger, a/k/a Alex Shtaynberger simultaneously with the execution of this Modification Agreement guaranteeing payment by the School of the $68,000 deferred base rental (Exhibit C [emphasis supplied]). -3- 3 of 8 FILED: KINGS COUNTY CLERK 10/26/2023 04:04 PM INDEX NO. 531281/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/26/2023 11. In connection with the Modified Lease, Guarantor executed the Guaranty in favor of Plaintiff. A true and correct copy of the Guaranty is attached hereto as Exhibit D. 12. Paragraph 1(a) of the Guaranty provides: The Guarantor hereby absolutely, irrevocably and unconditionally guarantees that the SIXTY-EIGHT THOUSAND ($68,000) DOLLARS that the School is obligated to pay to the Center pursuant to the Paragraph 5 and/or Paragraph 6 of the Modification of Lease Agreement dated April 4, 2022 between the Center and the School shall be paid promptly and paid in full when due in accordance with the provisions thereof. This Guaranty is unconditional and absolute, and if for any reason such sum shall not be paid promptly pursuant to the provisions of the Modification of Lease Agreement, then the Guarantor shall immediately pay such sum to or for the benefit of the Center regardless [of] whether or not the Center or any other party shall have taken steps against the School to collect such sum or enforce such agreement. 13. Paragraph 1(b) of the Guaranty provides: The Guarantor also absolutely, irrevocably and unconditionally guarantees to pay the costs incurred by the Center to enforce the collection of any amounts due under this Guaranty, including reasonably attorney’s fees. 14. Paragraph 4 of the Guaranty provides, in pertinent part that: …The Guarantor further covenants and agrees that in the event Center is required to bring any proceedings against the Guarantor to enforce the Obligations, the Guarantor shall reimburse Center for any and all expenses incurred, including, but not limited to reasonable attorney’s fees incurred in connection therewith… (Exhibit D). 15. Paragraph 6 of the Guaranty provides that the “Center shall provide Guarantor with twenty (20) days written notice prior to enforcing any of the provisions of this Guaranty” (Exhibit D). 16. Tenant did not exercise its option to renew the Lease. -4- 4 of 8 FILED: KINGS COUNTY CLERK 10/26/2023 04:04 PM INDEX NO. 531281/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/26/2023 17. Therefore, the total unpaid deferred portion of the base rentals, in the total amount of $68,000 (the “Guaranteed Rent”), became due and payable in full upon expiration of the Lease on June 24, 2023, pursuant to paragraphs 5 and 6 of the Modified Lease (Exhibit C). 18. Neither Tenant nor Guarantor have paid any amount of the Guaranteed Rent to Plaintiff, which became due and payable in full upon expiration of the Lease on June 24, 2023. 19. On September 18, 2023, Plaintiff duly served Guarantor with a 20-Day Notice and Demand for Payment Pursuant to Guaranty, dated September 18, 2023 (the “Demand”), demanding payment from Guarantor of the Guaranteed Rent by October 16, 2023, that being more than twenty days after service of the Demand. A true and correct copy of the Demand, along with proof of service, is annexed hereto as Exhibit E. 20. The Demand further put Guarantor on Notice that, in the event Guarantor failed to pay the full amount of the Guaranteed Rent by October 16, 2023, Guarantor would enforce the terms of the Guaranty against Guarantor in an action in the Supreme Court of the State of New York, and would seek to recover the costs incurred by Plaintiff to enforce collection of any amounts due under the Guaranty, including reasonable attorneys’ fees. 21. To date, neither Tenant nor Guarantor has paid the Guaranteed Rent to Plaintiff. 22. Pursuant to the Guaranty, Guarantor is absolutely and unconditionally obligated to pay Plaintiff the Guaranteed Rent and Plaintiff’s reasonable attorneys’ fees, plus interest. 23. Accordingly, pursuant to the Guaranty, it is respectfully requested that the Court grant Plaintiff’s motion in its entirety, and issue a money judgment against Guarantor in the sum of the Guaranteed Rent equal to $68,000, plus pre-judgment interest from June 24, 2023. -5- 5 of 8 FILED: KINGS COUNTY CLERK 10/26/2023 04:04 PM INDEX NO. 531281/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/26/2023 24. In addition, it is respectfully requested that the Court award Plaintiff its attorneys’ fees incurred in enforcing the Guaranty, in an amount to be determined at a hearing or on submission, as the Court may direct. 25. Notably, Tenant currently holds over in possession of the Premises without Plaintiff’s permission. On August 15, 2023, Plaintiff commenced a summary holdover proceeding against Tenant, captioned Manhattan Beach Jewish Center v Shulamith School for Girls of Brooklyn, et al., LT Index No. 324616-23/KI, seeking, inter alia: (i) a judgment of possession and warrant of eviction, and (ii) a money judgment against Tenant for arrears in the amount of $218,446.02, with interest; and (iii) a judgment for the value of Tenant’s use and occupancy of the Premises to the date Plaintiff recovers possession. 26. For the foregoing reasons, as well as those set forth in the accompanying memorandum of law, Plaintiff’s motion should be granted in its entirety, and Plaintiff should be awarded a judgment against Guarantor for the Guaranteed Rent, plus pre-judgment interest, as well as Plaintiff’s reasonable attorneys’ fees incurred in enforcing the terms of the Guaranty. [SIGNATURE PAGE TO FOLLOW] -6- 6 of 8 FILED: KINGS COUNTY CLERK 10/26/2023 04:04 PM INDEX NO. 531281/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/26/2023 -7- 7 of 8 FILED: KINGS COUNTY CLERK 10/26/2023 04:04 PM INDEX NO. 531281/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/26/2023 CERTIFICATION OF COUNSEL Ethan R. Cohen, Esq., an attorney duly admitted to the practice of law in the Courts of the State of New York, does hereby affirm, pursuant to new Uniform Civil Rules Section 202.8- b, that the word count of the processing system used to prepare the aforesaid document indicates that the document contains no more than 1,689 words, exclusive of the caption, table of contents, table of authorities, and signature block, and this Certificate. __________________________ ETHAN R. COHEN -8- 8 of 8