Motion for Writ in Ali Baba Hotel Corp. d/b/a AMSTERDAM COURT HOTEL, East Side Inn L.L.C. d/b/a THE MARCEL AT GRAMERCY v. Alexander Prose, Rehan Kapadia, Bella Mandoki, Carlos Carrillo, Thalia Herrera| Trellis.Law

On January 28, 2022 a Motion-Secondary was filed involving a dispute between Ali Baba Hotel Corp. D B A Amsterdam Court Hotel, East Side Inn L.L.C. D B A The Marcel At Gramercy, and Alexander Prose, Bella Mandoki, Carlos Carrillo, Rehan Kapadia, Thalia Herrera, for Commercial - Other (Breach of Agreement) in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------X Index No. 150993/2022
ALI BABA HOTEL CORP d/b/a AMSTERDAM COURT Mot. Seq. 008/012
HOTEL and EAST SIDE INN, LLC, d/b/a THE MARCEL
AT GRAMERCY

Plaintiffs,

– against –

ALEXANDER PROSE, REHAN KAPADIA, BELLA
MANDOKI, CARLOS CARRILLO, and THALIA
HERRERA,

Defendants.
----------------------------------------------------------------------X

MEMORANDUM OF LAW IN FURTHER SUPPORT OF
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND IN OPPOSITION TO PLAINTIFFS’ CROSS MOTION

Rehan Kapadia
201 e 24 #814
NYNY 10010
630-779-1291

TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES .......................................................................................................... ii

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PRELIMINARY STATEMENT .................................................................................................... 1

STATEMENT OF RELEVANT FACTS ....................................................................................... 1

STANDARD OF REVIEW ............................................................................................................ 2

ARGUMENT……………………………………………………………………………………...4
1. SUMMARY JUDGMENT DISMISSING PLAINTIFFS’ COMPLAINT IS CLEARLY
WARRANTED WHERE PLAINTIFFS CONTINUE TO MAKE ONLY BARE ASSERTIONS
AND FAIL TO DISPUTE THE UNAMBIGUOUS LANGUAGE OF THE SURRENDER
AGREEMENT ................................................................................................................................ 4

A. The Written Language Of The Surrender Agreement Is Clear And Unambiguous
And Plaintiffs Make Only Bare Assertions And Unsupported Claims To The
Contrary ...................................................................................................................... 4

B. DEFENDANT Has Provided Documentary Evidence That The Marcel At
Gramercy Is Not Affiliated With Ali Baba And The Affidavits Of Plaintiff Fail To
Contradict This Documented Proof ............................................................................ 7

2. SUMMARY JUDGMENT GRANTING DEFENDANT’S COUNTERCLAIM FOR A
DECLARATORY JUDGMENT IS PROPER AND PLAINTIFFS’ ASSERTION OF
SUBSTANTIAL REHABILITATION IS NEITHER GROUNDS TO REFUSE THIS RELIEF
OR TO PROVIDE PLAINTIFFS A STAY OF PROCEEDINGS ................................................. 9

3. PLAINTIFFS PURPOSEFULLY MISLEAD THE COURT WHERE THE MARCEL HAS
NO ACTIVE CERTIFICATE OF OCCUPANCY AND HAVE VIOLATED THE CPLR IN A
MANNER REQUIRING THEY PAY DEFENDANTS TREBLE DAMAGES IN THE AMOUNT
OF $433,260.000 .......................................................................................................................... 11

CONCLUSION ............................................................................................................................. 14

WORD COUNT CERTIFICATION ............................................................................................ 15

TABLE OF AUTHORITIES

CASES
Andre v. Pomeroy,
35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974) ...................................................................................... 4
Appel v. Root,
18 A.D.2d 686, 236 N.Y.S.2d 5 (2nd Dept. 1962), aff’d, 13 N.Y.2d 748, 241 N.Y.S.2d 870
(1963) .......................................................................................................................................... 4

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Blackgold Realty Corp. v Milne,
119 AD2d 512, 513, 515 (1st Dept 1986), affd 69 NY2d 719 (1987) .......................................... 12
Chazon v. Maugenest,
9 N.Y.3d 410 (2012) ..................................................................................................................... 12
Connaughton v. Chipotle Mexican Grill, Inc.,
29 N.Y.3d 137, 141–42 (2017) ....................................................................................................... 3
Donadio v. Crouse-Irving Mem’l Hosp., Inc.,
75 A.D.2d 715, 427 N.Y.S.2d 118 (4th Dept. 1980) ...................................................................... 3
Hindes v. Weisz,
303 A.D.2d 459, 756 NYS2d 601 (2nd Dept. 2003) ...................................................................... 4
Jordan Mfg. Corp v. Zimmerman,
169 A.D.2d 815, 816 565 N.Y.S.2d 184, 185 (2nd Dept. 1991) .................................................... 4
Kahn v. City of New York,
30 N.Y.2d 690, 332 N.Y.S.2d 638 (1972) ...................................................................................... 3
Leon v. Martinez,
84 N.Y.2d 83, 614 N.Y.S.2d 972, 638 N.E. 2d 511 (1994) ............................................................ 2
Mak Tech. Holdings Inc. v. Anyvision Interactive Tech. Ltd.,
2022 N.Y. Slip Op 7507 (App. Div. 1st Dept. 2022) ..................................................................... 5
Matter of Gracecor Realty Co. v. Hargrove,
90 NY2d 350 (1997) ....................................................................................................................... 9
Pokoik v. Pokoik,
115 A.D.3d 428, 432 982 N.Y.S.2d 67, 72 (1st Dept. 2014).......................................................... 3
Robinson v. Robinson,
303 A.D.2d 234, 235 (1st Dep’t 2003) ........................................................................................... 2
Sheila Props., Inc. v A Real Good Plumber, Inc.,
59 AD3d 424, 425 (2nd Dept. 2009) ............................................................................................ 11
Skillgames, LLC v. Brody,
1 A.D.3d 247, 250 (1st Dept 2003)................................................................................................. 3
Slamow v. Del Col,
79 N.Y.2d 1016, 1018 (1992) ......................................................................................................... 5
Slatt v. Slatt,
64 N.Y.2d 966 (1985) ..................................................................................................................... 5
Williams v. Lombardini,
38 Misc. 2d 146, 238 N.Y.S.2d 63 (Sup. Ct. 1963) ........................................................................ 3
Wineqrad v. NYU Medical Center,
64 N.Y.2d 851, 487 N.Y.S.2d 316 (1985) ...................................................................................... 3
Yohanes v. McKeathen,
NYLJ 6/15/94 31:2 (NY County Civ. Ct)....................................................................................... 9
Zuckerman v. Citv of New York,
49 N.Y.2d 557, 562, 427 N.Y.S.2d 595 (1980) .............................................................................. 3

iii

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STATUTES
BCL § 912(a) .............................................................................................................................. 7, 8

CPLR § 3211(a) .......................................................................................................................... 1, 2

CPLR § 3212 .................................................................................................................... 1, 2, 3, 11

GBL § 206............................................................................................................................... 12, 13

MDL § 301.................................................................................................................................... 11

MDL § 302.................................................................................................................................... 11

MDL § 325.................................................................................................................................... 11

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PRELIMINARY STATEMENT

DEFENDANT (“KAPADIA” or “DEFENDANT”) respectfully submits this

Memorandum of Law in further support of DEFENDANT’s application for an Order:

a) Pursuant to CPLR § 3212(b), § 3211(a)(1) and (a)(7) dismissing the entire
Complaint (First through Seventh Causes of Action);

b) Pursuant to CPLR § 3212(b) granting summary judgment on Defendant’s First
Counterclaim for a declaratory judgment that Defendant: (a) is a rent-
regulated tenant afforded all the protections under the law; (b) Marcel’s
refusal to tender a lease to DEFENDANT, coupled with Plaintiffs’ initiation
of this action, constitutes harassment of a rent regulated tenant, which is
prohibited by law; (c) that DEFENDANT is entitled to continued occupancy
and a rent-regulated lease at the Marcel; and

c) For such other and further relief as this Court may deem just and proper.

and in opposition to Plaintiffs’ cross-motion seeking partial summary judgment on Plaintiffs’

first cause of action for breach of contract, dismissal of DEFENDANT’s first counterclaim for a

declaratory judgment, and seeking alleged arrears pursuant to CPLR § 2201.

STATEMENT OF RELEVANT FACTS

The Court is referred to the Reply Affidavit of Defendant annexed

hereto, and the Statement of Material Facts (NYSCEF 146) for a statement of the facts relevant

to Defendant’s Motion.1

1
Exhibit Description
A. Verified Amended Complaint dated June 30, 2022 (NYSCEF 148)
B. Verified Amended Answer with Affirmative Defenses and Counterclaim dated October 18, 2022
(NYSCEF 149)
C. Surrender Agreement dated July 26, 2019 (NYSCEF 150)
D. Emails Regarding Lease (NYSCEF 151)
E. Amsterdam Court Hotel Deed (NYSCEF 152)
F. The Marcel at Gramercy Deed (NYSCEF 153)
G. Amsterdam Court Hotel Housing Preservation Ownership Information (NYSCEF 154)
H. The Marcel at Gramercy Housing Preservation Ownership Information (NYSCEF 155)
I. Ali Baba Department of State Entity Information (NYSCEF 156)
J. East Side Inn Department of State Entity Information (NYSCEF 157)
K. The Marcel at Gramercy Department of Buildings Property Profile (NYSCEF 158)
L. The Marcel at Gramercy Inn Housing Division Identification Card (NYSCEF 159)
M. The Marcel at Gramercy Certificate of Occupancy dated February 28, 1950 (NYSCEF 160)

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STANDARD OF REVIEW

Under CPLR § 3211(a), a party may move for judgment dismissing one or more

causes of action on several grounds, two being that:

“1. A defense is founded upon documentary evidence; or…
7. the pleading fails to state a cause of action”

Under CPLR § 3211(a)(1), dismissal is warranted where documentary evidence

conclusively establishes a defense to the asserted claims as a matter of law. Leon v. Martinez, 84

N.Y.2d 83, 614 N.Y.S.2d 972, 638 N.E. 2d 511 (1994). “While a complaint is to be liberally

construed in favor of plaintiff on a [CPLR] 3211 motion to dismiss, the court is not required to

accept factual allegations that are plainly contradicted by the documentary evidence or legal

conclusions that are unsupportable based upon the undisputed facts.” Robinson v. Robinson, 303

A.D.2d 234, 235 (1st Dep’t 2003) (citations omitted).

CPLR § 3211(a)(7) requires dismissal of a complaint if “the pleading fails to state a

cause of action.” Although the Court is to “accept the facts as alleged in the complaint as true,

accord plaintiffs the benefit of every possible favorable inference, and determine only whether

the facts as alleged fit within any cognizable legal theory,” Leon v. Martinez, 84 N.Y.2d 83, 87–

88 3 (1994), “factual allegations that do not state a viable cause of action, that consist of bare

legal conclusions, or that are inherently incredible or clearly contradicted by documentary

evidence are not entitled to such consideration.” Skillgames, LLC v. Brody, 1 A.D.3d 247, 250

N. The Marcel at Gramercy Temporary/Expired Certificate of Occupancy dated September 15, 2020
(NYSCEF 161)
O. SRO Rapsheet Regarding Jay Podolsky (NYSCEF 162)
P. Photographic Evidence of Failure to Post Charge in The Marcel

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(1st Dept 2003); see also Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141–42

(2017) (citations omitted),

Similarly, CPLR § 3212(a) grants to any party in an action the right to move for

summary judgment, after issue has been joined. Summary judgment relieves congested court

calendars and eliminates unnecessary expenses to litigants where no material issue of fact is

present. Donadio v. Crouse-Irving Mem’l Hosp., Inc., 75 A.D.2d 715, 427 N.Y.S.2d 118 (4th

Dept. 1980); Williams v. Lombardini, 38 Misc. 2d 146, 238 N.Y.S.2d 63 (Sup. Ct. 1963). It is

favored as a “fruitful remedy” which, because it is particularly useful, should be encouraged.

Kahn v. City of New York, 30 N.Y.2d 690, 332 N.Y.S.2d 638 (1972).

Summary judgment must be granted if the proponent makes a prima facie showing of

entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the

absence of any material issues of fact, and the opponent fails to rebut that showing. Pokoik v.

Pokoik, 115 A.D.3d 428, 432 982 N.Y.S.2d 67, 72 (1st Dept. 2014).

On a motion for summary judgment, the proponent bears the initial burden of setting

forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor,

without the need for a trial. CPLR § 3212; Wineqrad v. NYU Medical Center, 64 N.Y.2d 851,

487 N.Y.S.2d 316 (1985); Zuckerman v. Citv of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d

595 (1980).

However, once this burden is met, it will shift to the party opposing summary

judgment who must then establish the existence of material issues of fact, through evidentiary

proof in admissible form, that would require a trial of this action. Zuckerman v. Citv of New

York, supra.

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Where, as here, no issue of material fact is presented to justify trial, summary

judgment should be exercised “without hesitation.” Appel v. Root, 18 A.D.2d 686, 236 N.Y.S.2d

5 (2nd Dept. 1962), aff’d, 13 N.Y.2d 748, 241 N.Y.S.2d 870 (1963); William v. Lombardini,

supra. “An unsounded reluctance to employ the remedy will only serve to swell the trial calendar

and thus to deny other litigants the right to have their claims promptly adjudicated.” Andre v.

Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974).

When only issues of law are raised in connection with a motion for summary

judgment, the court may and should resolve them without the need for a testimonial hearing.

Hindes v. Weisz, 303 A.D.2d 459, 756 NYS2d 601 (2nd Dept. 2003).

A motion for summary judgment may not be defeated by the mere assertion of

conclusory allegations, denials, expressions of hope or unsubstantiated assertions. Jordan Mfg.

Corp v. Zimmerman, 169 A.D.2d 815, 816 565 N.Y.S.2d 184, 185 (2nd Dept. 1991).

REPLY ARGUMENT
POINT I
SUMMARY JUDGMENT DISMISSING PLAINTIFFS’ COMPLAINT IS CLEARLY
WARRANTED WHERE PLAINTIFFS CONTINUE TO MAKE ONLY BARE
ASSERTIONS AND FAIL TO DISPUTE THE UNAMBIGUOUS LANGUAGE OF THE
SURRENDER AGREEMENT

A. The Written Language Of The Surrender Agreement Is Clear And Unambiguous
And Plaintiffs Make Only Bare Assertions And Unsupported Claims To The
Contrary

As discussed in length in DEFENDANT’s Memo dated May 18, 2023 (NYSCEF 157

and referred to herein as “DEFENDANT’s Memo”), Plaintiffs’ Verified Amended Complaint

(the “Complaint”) and the causes of action therein are predicated on a Surrender Agreement

between Plaintiff Ali Baba Hotel Corp (“Ali Baba”) and Defendant KAPADIA DEFENDANT

dated July 26, 2019 (the “Surrender Agreement”). Exhibit C. NYSCEF 170.

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The fundamental rule of contract interpretation is that agreements are construed in

accord with the parties’ intent. Slatt v. Slatt, 64 N.Y.2d 966 (1985).

Clear contractual language does not become ambiguous simply because the parties to

the litigation argue different interpretations. Mak Tech. Holdings Inc. v. Anyvision Interactive

Tech. Ltd., 2022 N.Y. Slip Op 7507 (App. Div. 1st Dept. 2022).

The best evidence of what parties to a written agreement intend is what they say in

writing. Slamow v. Del Col, 79 N.Y.2d 1016, 1018 (1992). Where a written agreement is clear

and unambiguous on its face, it must be enforced according to the plain meaning of its terms. Id.

Here, the provision of the Surrender Agreement in question reads:

“Occupant warrants that he will not occupy any other unit affiliated with Owner”
Exhibit C, Page 1. NYSCEF 170.

Plaintiffs, for the purpose of suing DEFENDANT, now seek to interpret this

provision as a warrant that DEFENDANT would not occupy “any hotel or building affiliated

with Plaintiff Amsterdam Hotel” Exhibit A, Page 15, pp 35. NYSCEF 148.

However, the language of the Surrender Agreement is clear and unambiguous. The

Surrender Agreement required DEFENDANT to vacate his residence in a unit at the hotel

located at 226 West 50th Street, New York, New York (the “Amsterdam Court Hotel”). The

cited provision stated only that DEFENDANT would not occupy “any other unit affiliated with

Owner” and no mention is made in the Surrender Agreement of Ali Baba owning or having an

“affiliation” with any properties beyond the Amsterdam Court Hotel.

Here, the Surrender Agreement is clear and unambiguous. It concerns only the

Amsterdam Court Hotel, and DEFENDANT’s then occupancy therein. Ali Baba is a party to the

contract in their capacity as owner of the Amsterdam Court Hotel, and every use of the word

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‘unit’ therein is in reference to the individual apartment units located in the Amsterdam Court

Hotel.

In response, Plaintiffs merely assert that the language of the Surrender Agreement

should be expanded to accommodate the stance they now take, but otherwise concede that,

despite being experienced contract drafters supposedly “affiliated” with multiple properties, they

never included these affiliations in the Surrender Agreement they themselves drafted.

Instead, Plaintiffs conveniently avoid acknowledging or arguing this point, despite it

explicitly being raised in the DEFENDANT Memo, as it is clearly fatal to their Complaint. If

Plaintiffs truly sought to enter into an agreement with DEFENDANT barring him from residing

at the Marcel at Gramercy (“The Marcel”) (which, as argued at length in the DEFENDANT

Memo, is unaffiliated with Ali Baba (DEFENDANT Memo, Pages 7-8)), they could have

included such language in the Surrender Agreement.

Plaintiffs clearly seek instead to now get more then what they bargained for under the

Surrender Agreement, yet cannot actually rely on the writing of the Surrender Agreement,

instead making only repeated baseless assertions and claiming unrelated and unproven oral

statements were made, despite these mattering not at all where the Surrender Agreement itself is

unambiguous.

Ultimately, Plaintiffs themselves drafted the Surrender Agreement and, had they

sought such an extreme interpretation, would have written it into the signed agreement they

presented to Prose. Plaintiffs instead seek to take advantage of DEFENDANTs by seeking

benefits that were not contemplated under the Surrender Agreement and explicitly rely on

statements they claim to have made to Prose only after he signed the Surrender Agreement, as

supposed grounds to permit their wrongful interpretation of the contract.

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Plaintiffs do not contest that they themselves drafted the Surrender Agreement and

inexplicably made no reference to any other properties “affiliated” with Ali Baba, or otherwise

stated that Prose may not occupy other hotels or properties. In avoiding acknowledging these

points entirely despite them being fatal to their claims, it is clear that Plaintiffs argue in bad faith

and the causes of actions brought under their Complaint, all predicated on their bad faith

interpretation of the Surrender Agreement, should be dismissed.

B. DEFENDANT Has Provided Documentary Evidence That The Marcel At Gramercy
Is Not Affiliated With Ali Baba And The Affidavits Of Plaintiff Fail To Contradict
This Documented Proof

As argued at length in the DEFENDANT Memo, the deeds (Exhibit E and F

NYSCEF 172 and 173), Housing Preservation & Development property ownership information

(Exhibits G and H NYSCEF 154 and 155), and the Department of State entity information

(Exhibit I and J NYSCEF 156 and 177), for both the Amsterdam Court Hotel and the East Side

Inn all demonstrate that The Marcel is not “affiliated” with Ali Baba.

In response, Plaintiffs mistakenly reference New York’s Business Corporation Law

(“BCL”) §912(a)(1), specifically quoting:

“a person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common
control with, a specified person.”

and §912(a)(8):

“under common control means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a person, whether through the
ownership of voting stock, by contract, or otherwise.”

which identifies where a person is considered an affiliate.

Plaintiffs then provide evidence of a Sharon Olson (“Olson”) being a shareholder of

both The Amsterdam Court Hotel and The Marcel. (Plaintiffs Exhibits BB, CC, DD, EE, XX &

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YY) What these documents do not demonstrate, despite Plaintiffs claims, is that both hotels are

owned by Olson.

That Olson may be affiliated with both these hotels, that is, having ownership of

voting stock in both hotels, does not mean the hotels themselves are affiliated with one another,

nor do the cited provisions of the BCL support this confused conclusion by Plaintiffs. While

Olsen herself contends that both hotels are owned “in the majority of 75% or more, by myself

and one other person” this claim is unsupported by any documentary evidence while the

evidence provided by DEFENDANT clearly illustrates that no common ownership exists.

(Exhibits E, F, G, H, I, J NYSCEF 152-57.).

The argument that “The Marcel and Amsterdam are both owned in part and

controlled by Sharon Olson who oversees the management, policies and corporate decision

making of both corporations” is therefore baseless and contradicted by documentary evidence.

Furthermore, the mere fact that both The Marcel and the Amsterdam Court Hotel

work in the same industry and are both physically located in the City of New York obviously

provides no support for being considered “affiliated” and is a desperate attempt to come up with

some basis to be called an “affiliate” where none otherwise exists.

Ultimately, not only is The Marcel not affiliated with Ali Baba, but even were this not

the case, the Surrender Agreement is clear and unambiguous in not referencing or pertaining to

any properties beyond the Amsterdam Court Hotel. As Plaintiffs causes of action are all

predicated on an incorrect interpretation of the unambiguous Surrender Agreement, the

Complaint, and all causes of actions raised by Plaintiffs therein, should be dismissed.

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POINT II
SUMMARY JUDGMENT GRANTING DEFENDANT’S COUNTERCLAIM FOR A
DECLARATORY JUDGMENT IS PROPER AND PLAINTIFFS’ ASSERTION OF
SUBSTANTIAL REHABILITATION IS NEITHER GROUNDS TO REFUSE THIS
RELIEF OR TO PROVIDE PLAINTIFFS A STAY OF PROCEEDINGS

As argued in great detail in the DEFENDANT Memo, DEFENDANT seeks a

declaratory judgment that (a) they is a rent-regulated tenant afforded all the protections under the

law; (b) Marcel’s refusal to tender a lease to DEFENDANT, coupled with Plaintiffs’ initiation of

this action, constitutes multiple counts of harassment of a rent regulated tenant, which is

prohibited by law; and (c) that DEFENDANT is entitled to continued occupancy and a rent-

regulated lease at The Marcel. Exhibit B, pages 16-17, pp 116-123. NYSCEF 149.

Documentary evidence has been submitted demonstrating that The Marcel is

designated as “SRO Restricted” by the New York City Department of Buildings. Exhibit K.

NYSCEF 158.

Furthermore, it is reiterated that the building in which the Marcel is situated was built

in or about 1925, is a Class B Multiple Dwelling and/or contains units that qualify as such.

Exhibit B, page 15, pp 107. NYSCEF 149. The Marcel’s Department of Housing and Buildings

Division of Housing Classification Card has also been annexed as further proof. Exhibit L.

NYSCEF 136.

A Certificate of Occupancy for The Marcel, dated February 28, 1950, is also annexed

hereto, and reiterates the premises as a Class B Multiple Dwelling hotel containing six or more

units that was erected on or before July 1, 1969. Exhibit M. NYSCEF 137.

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Class B dwelling units in SRO buildings are rent stabilized if erected on or before

July 1, 1969; contain six or more units; charged no more than $88 a week or $350 a month as of

May 31, 1968; and are occupied by a permanent tenant. Yohanes v. McKeathen, NYLJ 6/15/94

31:2 (NY County Civ. Ct); see also Matter of Gracecor Realty Co. v. Hargrove, 90 NY2d 350

(1997).

Therefore, where DEFENDANT, on Dec 14 2021, requested a lease, in writing, to

agents of The Marcel and has otherwise been occupying their Unit in The Marcel since on or

about December 14, 2021, DEFENDANT is permanent, rent regulated tenant entitled to

continued occupancy, a rent-regulated lease, and a declaratory judgment declaring same.

In response, Plaintiffs do not argue that The Marcel is not currently rent stabilized

and provides no response to the reasoning and documentary evidence demonstrating that

DEFENDANT is a permanent, rent regulated tenant.

Instead, Plaintiffs claim that they wish for The Marcel to no longer be considered rent

stabilized on the basis of alleged ‘substantial rehabilitation’ but have been unsuccessful to date in

demonstrating sufficient proof of these ‘substantial rehabilitation’.

Interestingly, Plaintiffs claim that this “substantial rehabilitation” took place 15 years

prior to submitting a request to the DHCR to find The Marcel is not subject to RSL. If The

Marcel is truly capable of being considered exempt RSL on the basis of this “substantial

rehabilitation”, why would they wait 15 years to reach out to the DHCR?

Specifically, Plaintiffs admit that they have reached out to the DHCR multiple times

for over a year, pleading for a finding of ‘substantial rehabilitation’, yet have been unable to

provide the evidence necessary for the DHCR to make such a finding.

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Where DEFENDANT has provided significant documentary evidence demonstrating

that their unit at The Marcel is subject to RSL, and where Plaintiffs do not even attempt to argue

this reasoning, their mere hope that the DHCR will grant them an exception where they concede

they have been unsuccessful thus far is clearly no grounds to delay these proceedings.

Notably, Plaintiffs have not rebutted DEFENDANT’s prima facie case thus far and

have raised

only expressions of hope.

Based on the foregoing, there are no genuine issues of material fact warranting a trial

in this action, and summary judgment in favor of DEFENDANT is proper under CPLR 3212(b).

POINT III
PLAINTIFFS PURPOSEFULLY MISLEAD THE COURT WHERE THE MARCEL HAS
NO ACTIVE CERTIFICATE OF OCCUPANCY AND HAVE VIOLATED THE CPLR
IN A MANNER REQUIRING THEY PAY DEFENDANTS TREBLE DAMAGES IN THE
AMOUNT OF $ $ 903,060.00

Under Multiple Dwelling Law (MDL) 301 and 302:

301. “No multiple dwelling shall be occupied in whole or in part
until the issuance of a certificate by the department that said
dwelling conforms in all respects to the requirements of this
chapter, to the building code and rules and to all other applicable
law”
302. “any dwelling or structure be occupied in whole or in part for
human habitation in violation of section three hundred one (...) o
rent shall be recovered by the owner of such premises for said
period, and no action or special proceeding shall be maintained
therefor, or for possession of said premises for nonpayment of such
rent”

Similarly, under MDL 325:

“In any city of over one million which, by local law, requires the
registration of owners of multiple dwellings and which prescribes
penalties, remedies, and sanctions to be imposed for the violation
of such local registration requirements, no rent shall be recovered
by the owner of a multiple dwelling who fails to comply with such

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registration requirements until he complies with such
requirements.”

As applied, an owner of a de facto multiple dwelling who fails to obtain a proper

certificate of occupancy or comply with the registration requirements of the MDL cannot recover

rent or use and occupancy. Sheila Props., Inc. v A Real Good Plumber, Inc., 59 AD3d 424, 425

(2nd Dept. 2009). See also Blackgold Realty Corp. v Milne, 119 AD2d 512, 513, 515 (1st Dept

1986), affd 69 NY2d 719 (1987); Chazon v. Maugenest, 19 NY3d 410 (2012).

As outlined in DEFENDANT’s Memo and left completely unargued by Plaintiffs,

The Marcel does not currently have a Certificate of Occupancy (“CO”) in effect. The latest CO

having been a Temporary Certificate of Occupancy that expired December 14, 2020, which notes

therein that a Final Certificate of Occupancy cannot be obtained due to nine outstanding

requirements, and that no change in use and occupancy shall be made unless a new Certificate of

Occupancy is issued. NYSCEF 124/138.

Plaintiffs themselves attached as exhibits only the expired COs and reference them

only to the extent that they make clear that no Certificate of Occupancy is currently in effect for

The Marcel. NYSCEF 283/308.

Despite attaching no active CO as an exhibit, making no reference to an active CO,

and ignoring, without any refutation, that DEFENDANT’s Memo already indicated that The

Marcel lacks an active CO, Plaintiffs now seek use and occupancy from Defendants.

Plaintiffs clearly seek relief that they would only be entitled to with an active CO, and

brush over the fact that no active CO currently exists. Where the DEFENDANT Memo already

informed the Court, and reminded Plaintiffs, that The Marcel has no active CO, Plaintiffs not

only seeks this rent in bad faith, but such a demand constitutes a sanctionable attempt to mislead

the Court.

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FILED: NEW YORK COUNTY CLERK 09/08/2023 04:44 PM INDEX NO. 150993/2022
NYSCEF DOC. NO. 323 RECEIVED NYSCEF: 09/08/2023

Therefore, pursuant to Multiple Dwelling Law, The Marcel, lacking an active

Certificate of Occupancy, is barred from recovering rent. That Plaintiffs ask the Court to grant

them rent they are fully aware they lack entitlement to is clearly sanctionable conduct.

Furthermore, where Plaintiffs seek charges in the amount of $301,020

against DEFENDANT, pursuant to New York General Business Law (GBL) § 206:

“Every keeper of a hotel or inn shall post in a public and
conspicuous place and manner in the office or public room, and in
the public parlors of such hotel or inn, a printed copy of this
section and sections two hundred and two hundred and one, and a
statement of the charges or rate of charges by the day and for
meals furnished and for lodging. No charge or sum shall be
collected or received by any such hotel keeper or inn keeper for
any service not actually rendered or for a longer time than the
person so charged actually remained at such hotel or inn, nor for a
higher rate of charge for the use of such room or board, lodging or
meals than is specified in the rate of charges required to be posted
by the last preceding sentence; provided such guest shall have
given such hotel keeper or inn keeper notice at the office of his
departure. For any violation of this section the offender shall
forfeit to the injured party three times the amount so charged, and
shall not be entitled to receive any money for meal, services or
time charged.” Emphasis added.

Here, despite having raised no cause of action in the Complaint regarding arrears,

Plaintiffs now allege that they are entitled to receive from DEFENDANT use and occupancy of

$519.00 a day and have the legal rent of his rent stabilized unit set to this same ludicrous

amount.

Plaintiffs argue that it is only fair and equitable to receive from DEFENDANT $519

for every day this litigation they initiated has continued and have the legal rent set to such an

amount, yet they themselves are the ones contesting the rent stabilized status of The Marcel.

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NYSCEF DOC. NO. 323 RECEIVED NYSCEF: 09/08/2023

Fatally, The Marcel has not adhered to GBL § 206 which clearly and unambiguously

mandates that they post in a public and conspicuous place, a printed copy of the section, sections

201/202, and a statement of the charge or rate of charges by the day. Exhibit P.

As set forth in the Reply Affidavit of KAPADIA annexed hereto, no such printed

copy or statement has been posted publicly and conspicuously. Exhibit P.

By its own terms, not only shall one who violates this section not be entitled to

receive any money for services or time charged, but the injured party is entitled to treble

damages in the amount of three times the amount sought to be charged.

Ultimately, beyond lacking the Certificate of Occupancy necessary to collect rent,

where Plaintiffs themselves contest the rent stabilized status of The Marcel, and therefore the

amount of legal rent to be charged, they should not be awarded use and occupancy, especially

where they seek to further prolong and delay this Action pending more fruitless appeals to the

DHCR.

As Plaintiffs have also violated the CPLR and therefore forfeited entitled to receive money for
the times sought to be charged, their demand for arrears should be denied, and Defendants are
entitled to treble damages in the amount of three times the amount so charged per GBL § 206. As
Plaintiffs specifically seek to charge DEFENDANT a sum of $301,020
DEFENDANT is therefore entitled to three times this amount, specifically, $903,060.00
.

CONCLUSION

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FILED: NEW YORK COUNTY CLERK 09/08/2023 04:44 PM INDEX NO. 150993/2022
NYSCEF DOC. NO. 323 RECEIVED NYSCEF: 09/08/2023

WHEREFORE, it is respectfully requested that the Court grant DEFENDANT’s Motion

in its entirety, deny Plaintiffs cross-motion and award DEFENDANT such other and further

relief as the Court deems just and proper, including DEFENDANT’s legal fees, costs and

disbursements for this action.

Dated: New York, New York
September 8, 2023
Respectfully submitted,

S/Rehan Kapadia
Rehan Kapadia
201 e 24 #814
NYNY 10010
630-779-1291

WORD COUNT CERTIFICATION

I hereby certify that pursuant to Rule 202.8-b of the Uniform Civil Rules For The

Supreme Court & The County Court, that this Memorandum of Law contains 4,820 words,

excluding the caption, table of contents, table of authorities and signature block, as counted by

the word-processing system used to prepare this document.

19 of 19

Case Info

Judge

Emily Morales-Minerva Track Judge’s New Case

Case No.

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Document Filed Date

September 08, 2023

Case Filing Date

January 28, 2022

County

Parties

Alexander Prose Defendant
ALI BABA HOTEL CORP. d/b/a AMSTERDAM COURT HOTEL Plaintiff
BEHAR, LEON I Attorney for the Defendant
Bella Mandoki Defendant
BERNSTEIN, ADAM MICHAEL Attorney for the Plaintiff
Carlos Carrillo Defendant
EAST SIDE INN L.L.C. d/b/a THE MARCEL AT GRAMERCY Plaintiff
FARBER, MICHAEL SETH Attorney for the Defendant
GOLDMAN, JEFFREY L. Attorney for the Plaintiff
KUCKER, ALAN D. Attorney for the Plaintiff
LOFFREDO, SCOTT FRANCIS Attorney for the Plaintiff
LOWER, ROBERT BRUCE Attorney for the Defendant
MCAVEY, ERIC RUSSELL Attorney for the Plaintiff
Rehan Kapadia Defendant
SCHNEIDER, DANIEL JACOB Attorney for the Defendant
Thalia Herrera Defendant
Unrepresented and not participating in eFiling Attorney for the Defendant
WINIARSKY, NATIV Attorney for the Plaintiff
O SHERWOOD Attorney
SUSAN SHAPIRO Attorney
STEVEN SPERBER Attorneys for Plaintiffs
MARC ARONSON Attorneys for Defendants
ALEXANDER BERGER Attorney
ILENE BEHAR Attorney
BIKRAM SINGH Attorneys for Plaintiffs
CHRISTIAN ALLIMONOS Attorney
MAYA PETROCELLI Attorneys for Plaintiffs
Jason Frosch Attorney
VLADIMIR FAVILUKIS Attorney
SAUL BIENENFELD Attorneys for Plaintiffs
MIRIAM PETROCELLI Attorneys for Defendants

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Motion-Secondary: Ali Baba Hotel Corp. d/b/a AMSTERDAM COURT HOTEL, East Side Inn L.L.C. d/b/a THE MARCEL AT GRAMERCY v. Alexander Prose, Rehan Kapadia, Bella Mandoki, Carlos Carrillo, Thalia Herrera

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