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NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ALI BABA HOTEL CORP d/b/a AMSTERDAM COURT
HOTEL and EAST SIDE INN, LLC, d/b/a THE MARCEL Index No. 150993/2022
AT GRAMERCY
Mot. Seq. 008
Plaintiffs,
– against –
ALEXANDER PROSE, REHAN KAPADIA, BELLA
MANDOKI, CARLOS CARRILLO, and THALIA
HERRERA,
Defendants.
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MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT
Bella Mandoki
201 e 24 street #1103
New York, NY 10019
‘
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................................... iv
PRELIMINARY STATEMENT .................................................................................................... 1
STATEMENT OF RELEVANT FACTS ....................................................................................... 1
STANDARD OF REVIEW ............................................................................................................ 2
ARGUMENT……………………………………………………………….……………………..4
1. DISMISSAL OF PLAINTIFFS’ SEVEN CAUSES OF ACTION IS PROPER WHERE
PLAINTIFFS MAKE ONLY BASELESS ASSERTIONS AND DEFENDANT BELLA
MANDOKI CONCLUSIVELY ESTABLISHES DEFENSES TO THESE CLAIMS AS A
MATTER OF LAW ........................................................................................................................ 4
A. Plaintiffs’ First Cause Of Action For Breach Of Contract Should Be
Dismissed........................................................................................................ 4
i. The Surrender Agreement Is Clear And Unambiguous.................................. 4
ii. If Found To Be Ambiguous, The Clear Intent Of The Surrender Agreement
Nevertheless Precludes Plaintiffs’ Interpretation.................................................... 5
iii. The Marcel At Gramercy Does Not Share Common Ownership With Ali
Baba And They Are Not “Affiliated” For Any Purpose ...... Error! Bookmark not
defined.
iv. Plaintiffs Have Not Suffered Damages From Bella Mandoki Under An
Alleged Breach Or Otherwise ................................................................................. 5
B. Plaintiffs’ Second Cause Of Action For Recission Of The Surrender
Agreement Should Be Dismissed ................................................................... 7
C. Plaintiffs’ Third Cause Of Action For Unjust Enrichment Should Be
Dismissed........................................................................................................ 8
i. Plaintiffs’ Unjust Enrichment Cause Of Action Must Be Dismissed As
Duplicative Of Plaintiffs’ Breach Of Contract Claim............................................. 8
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ii. Plaintiffs’ Fail To Establish The Elements Necessary For A Claim Of Unjust
Enrichment And It Should Therefore Be Dismissed .............................................. 9
D. Plaintiffs’ Fourth Cause Of Action For Fraud And Deceit Should Be
Dismissed...................................................................................................... 10
E. Plaintiffs’ Fifth Cause Of Action For Extortion, Harassment, Annoyance and
Nuisance Against All Defendants Should Be Dismissed ............................. 11
F. Plainitffs’ Sixth Cause Of Action For A Permanent Injunction Should Be
Dismissed...................................................................................................... 14
G. Plaintiffs’ Seventh Cause Of Action For A Declaratory Judgment Should Be
Dismissed...................................................................................................... 15
2. SUMMARY JUDGMENT GRANTING DEFENDANT MANDOKI’S COUNTERCLAIM
FOR A DECLARATORY JUDGMENT IS PROPER WHERE MANDOKI HAS ESTABLISHED
HIS PRIMA FACIE CASE AND PLAINTIFFS RAISE ONLY BARE ASSERTIONS IN
RESPONSE .................................................................................................................................. 17
CONCLUSION ............................................................................................................................. 20
WORD COUNT CERTIFICATION ............................................................................................ 22
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TABLE OF AUTHORITIES
CASES
25 West 24th Street LLC v. Gianquinto, 55 Misc. NY3d 28 (App. Term 1st Dept. 2017) ........... 22
Ahmad v. Chelsea Highline Hotel, 2015 NY Slip Op. 51577 (U) (App. Term 1st Dept. 2015) .. 22
Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974) ....................................................... 3
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) ................................................................................................................... 3
Callanan v Keeseville, Ausable Chasm & Lake Champlain R. R. Co., 199 N.Y. 268, 284 (1910)
................................................................................................................................................... 10
Chanos v. MADAC, LLC, 74 AD3d 1007, 1008 (2nd Dept 2010) ............................................... 19
Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 AD3d 38, 41 (1st Dept 2011) ............................ 15
Clark-Fitzpatrick, Inc. v. Long Is. R. Co., 70 NY2d 382, 388 (1987) .......................................... 12
Corsello v. Verizon New York, Inc., 18 NY3d 777, 790 (2012) ................................................... 12
Domen Holding Co. v. Aranovich, 1 NY3d 117, 123-124 (2003) ................................................ 15
Donadio v. Crouse-Irving Mem’l Hosp., Inc., 75 A.D.2d 715, 427 N.Y.S.2d 118 (4th Dept. 1980)
..................................................................................................................................................... 2
Hindes v. Weisz, 303 A.D.2d 459, 756 NYS2d 601 (2nd Dept. 2003) ........................................... 3
Jordan Mfg. Corp v. Zimmerman, 169 A.D.2d 815, 816 565 N.Y.S.2d 184, 185 (2nd Dept. 1991)
........................................................................................................................................... 3, 9, 21
Kahn v. City of New York, 30 N.Y.2d 690, 332 N.Y.S.2d 638 (1972) ........................................... 2
Leon v. Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972, 638 N.E. 2d 511 (1994)............................... 2
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Mak Tech. Holdings Inc. v. Anyvision Interactive Tech. Ltd., 2022 N.Y. Slip Op 7507 (App. Div.
1st Dept. 2022) ...................................................................................................................... 5, 10
Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 182 (2011) ......................................... 12,14
Matter of Gracecor Realty Co. v. Hargrove, 90 NY2d 350 (1997)........................................ 19, 21
Mondrow v. Days Inn, 48 Misc.3d 95 (App. Term 1st Dept. 2015) ............................................. 22
Nutter v. W&J Hotel Co., 171 Misc. 2d 302, 654 N.Y.S.2d 274 (1997) ................................ 20, 23
Pokoik v. Pokoik, 115 A.D.3d 428, 432 982 N.Y.S.2d 67, 72 (1st Dept. 2014) ....................... 2, 20
RCN Telecom Services, Inc. v. 202 Centre Street Realty LLC., 156 Fed.Appx.349, 350-351
(2005) .......................................................................................................................................... 4
Slamow v. Del Col, 79 N.Y.2d 1016, 1018 (1992) ......................................................................... 5
Slatt v. Slatt, 64 N.Y.2d 966 (1985) ................................................................................................ 5
W.W.W. Assoc., Inc. v Giancontieri, 77 NY2d 157, 162 (1990) .................................................... 6
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) ........................................ 19, 22
Zuckerman v. Citv of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595 (1980) .................... 2, 23
STATUTES
9 NYCRR 2520.6 (j) ..................................................................................................................... 19
9 NYCRR 2522.5 (a)(2) .......................................................................................................... 19, 22
CPLR § 3211(a) ................................................................................ 1, 9, 10, 13, 14, 16, 17, 19, 20
CPLR § 3212................................................................................. 1, 2, 9, 10, 13, 14, 16, 17, 19, 20
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PRELIMINARY STATEMENT
Defendant Bella Mandoki (“Bella Mandoki” or “Mandoki”) respectfully submits this
Memorandum of Law in 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 Bella
Mandoki’s First Counterclaim for a declaratory judgment that Defendant
Mandoki: (a) is a rent-regulated tenant afforded all the protections under the
law; (b) Marcel’s refusal to tender a lease to Mandoki, coupled with Plaintiffs’
initiation of this action, constitutes harassment of a rent regulated tenant,
which is prohibited by law; (c) that Mandoki 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.
STATEMENT OF RELEVANT FACTS
1. The Court is referred to the Affidavit of Defendant Bella Mandoki and the
Statement of Material Facts, both annexed hereto, for a statement of the facts relevant to
Defendant’s Motion.1
1
Exhibit Description
A. Verified Amended Complaint dated June 30, 2022;
B. Verified Amended Answer with Affirmative Defenses and Counterclaim dated October 18, 2022;
C. Surrender Agreement dated July 26, 2019;
D. Emails Regarding Lease
E. Amsterdam Court Hotel Deed
F. East Side Inn Deed
G. Amsterdam Court Hotel Housing Preservation Ownership Information
H. East Side Inn Housing Preservation Ownership Information
I. Amsterdam Court Hotel Department of State Entity Information
J. East Side Inn Department of State Entity Information
K. East Side Inn Department of Buildings Property Profile
L. East Side Inn Housing Division Identification Card
M. SRO Rapsheet Regarding Jay Podolsky
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STANDARD OF REVIEW
2. 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”
3. Under CPLR § 3211(a), 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).
4. 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).
5. 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).
6. 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).
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7. 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.
8. 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).
9. 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).
10. 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).
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ARGUMENT
POINT I
DISMISSAL OF PLAINTIFFS’ SEVEN CAUSES OF ACTION IS PROPER WHERE
PLAINTIFFS MAKE ONLY BASELESS ASSERTIONS AND DEFENDANT BELLA
MANDOKI CONCLUSIVELY ESTABLISHES DEFENSES TO THESE CLAIMS AS A
MATTER OF LAW
A. Plaintiffs’ First Cause Of Action For Breach Of Contract Should Be Dismissed
11. Plaintiffs’ first cause of action alleges a breach of contract in relation to a
Surrender Agreement between Plaintiff Ali Baba Hotel Corp (“Ali Baba”) and Defendant
ALEXANER PROSE dated July 26, 2019. Exhibit C. I was not a party to that contract.
12. In New York, the elements of a breach of contract claim are: (1) the existence of a
contract, (2) performance by the party seeking recovery, (3) non-performance by the other party,
and (4) damages attributable to the breach. RCN Telecom Services, Inc. v. 202 Centre Street
Realty LLC., 156 Fed.Appx.349, 350-351 (2005).
13. Here, fatal to Plaintiffs’ cause of action, there was no contract.
the other party and damage attributable to the breach, are non-existent.
i. The Surrender Agreement Is Clear And Unambiguous
14. 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).
15. 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.
16. Here, the Surrender Agreement is clear and unambiguous. It concerns only the
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Amsterdam Court Hotel, and Prose’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 ‘unit’
therein is in reference to the individual apartment units located in the Amsterdam Court Hotel.
17. 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). Plaintiffs cannot
simply add language to the Surrender Agreement after the fact and argue that it was breached on
the basis of same.
18. The Surrender Agreement stated only that Prose would not occupy “any other unit
affiliated with Owner” and no mention is made in the Surrender Agreement of Bella Mandoki or
any other defendant named.
ii. If Found To Be Ambiguous, The Clear Intent Of The Surrender
Agreement Nevertheless Precludes Plaintiffs’ Interpretation
19. Provided a writing is clear and complete, evidence outside its four corners “as to
what was really intended but unstated or misstated is generally inadmissible to add to or vary the
writing” W.W.W. Assoc., Inc. v Giancontieri, 77 NY2d 157, 162 (1990)..
20. Nowhere in the Surrender Agreement Is there reference me.
iii. Plaintiffs Have Not Suffered Damages From Bella Mandoki Under An
Alleged Breach Or Otherwise
21. As a party must establish all four elements of a breach of contract to bring a cause
of action under same, it is further argued that the fourth element, damage attributable to the
breach, is not present under the facts herein.
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22. Not only has Mandoki not breached the Surrender Agreement as argued above,
but
Plaintiffs only make baseless assertions regarding alleged damages suffered.
23. Mandoki never was party to the surrender agreement.
24. Plaintiffs’ have not otherwise established what ‘damages’ they suffered from
Mandoki beyond baselessly alleging without documentary support any behavior other than
requesting a lease .
25. Mere assertions and baseless accusations do not establish a material issue of fact
sufficient to defeat a motion for summary judgment. Jordan Mfg. Corp v. Zimmerman, 169
A.D.2d 815, 816 565 N.Y.S.2d 184, 185 (2nd Dept. 1991).
26. Notably, no documentary evidence was submitted by Plaintiffs to support a claim
of damages, and Plaintiffs instead rely exclusively on their incorrect interpretation of the
Surrender Agreement.
27. Mandoki having checked in to the Marcel therefore establishes neither a breach of
the Surrender Agreement, nor does Plaintiffs demonstrate any damages
attributable to same.
28. Plaintiffs fail to satisfy all four elements of a Breach of Contract, raise only
baseless assertions insufficient to defeat a motion for summary judgment, and Mandoki has
instead raised several affirmative defenses supported by documentary evidence as demonstrated
herein and annexed hereto.
29. For these reasons, Plaintiffs’ first cause of action for breach of contract should
therefore be dismissed under CPLR § 3211(a)(1) and (a)(7) and CPLR § 3212(b).
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B. Plaintiffs’ Second Cause Of Action For Recission Of The Surrender Agreement
Should Be Dismissed
30. Plaintiffs’ second cause of action seeks rescission of the Surrender Agreement
and demands return of the $100,000.00 paid by Ali Baba in exchange for Prose vacating and not
returning to, the Amsterdam Court Hotel. Exhibit A, page 16, pp 37-39, Exhibit C.
31. In order to justify the intervention of equity to rescind a contract, a party must
allege fraud in the inducement of the contract; failure of consideration; an inability to perform
the contract after it is made; or a breach in the contract which substantially defeats the purpose
thereof. Callanan v Keeseville, Ausable Chasm & Lake Champlain R. R. Co., 199 N.Y. 268, 284
(1910).
32. THERE WAS NO CONTRACT IN THE FIRST PLACE.
33. Here, Plaintiffs allege a:
“material breach of the Surrender Agreement which substantially
defeated the very purpose of the Surrender Agreement in such a
fundamental way so as to defeat the object of the parties in making
the Surrender Agreement” Exhibit A, page 16, pp 38.
34. However, as argued above, Plaintiffs’ interpretation of the Surrender Agreement
to claim that it was breached by Mandoki residing at the Marcel is baseless.
35. Furthermore, Ali Baba is not “affiliated” with Marcel for any purpose, least of all
for the purposes contemplated in the Surrender Agreement which referenced and was concerned
exclusively with the Amsterdam Court Hotel. Exhibit C.
36. The Surrender Agreement was for the clear and explicit purpose of Prose
returning possession of his apartment at the Amsterdam Court Hotel to Ali Baba in exchange for
the payment of $100,000.00. Exhibit C.
37. The parties further contemplated and agreed that Prose would not thereafter return
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to and reside at the Amsterdam Court Hotel. Exhibit C.
38. Plaintiffs therefore fail to establish their baseless claim that the “very purpose of
the Surrender Agreement was defeated.” Exhibit A, page 16, pp 38.
39. Plaintiffs further fail, as argued in detail above, to establish any breach of the
Surrender Agreement, let alone a material breach sufficient to warrant recission.
40. Therefore, Plaintiffs’ second cause of action for breach of contract should
be dismissed under CPLR § 3211(a)(1) and (a)(7) and CPLR § 3212(b).
C. Plaintiffs’ Third Cause Of Action For Unjust Enrichment Should Be Dismissed
i. Plaintiffs’ Unjust Enrichment Cause Of Action Must Be Dismissed As
Duplicative Of Plaintiffs’ Breach Of Contract Claim
41. Plaintiffs’ third cause of action alleges unjust enrichment again on the baseless
assertion that Mandoki in any way breached the Surrender Agreement. Exhibit A, page 16, pp
40-43.
42. It is noted from the outset that this claim is premised on the same events as
Plaintiffs’ breach of contract claim and is duplicative of same. I WAS NEVER PARTY TO
ANY SURRENDER AGREEMENTS.
43. It is well settled that “[a]n unjust enrichment claim is not available where it
simply duplicates, or replaces, a conventional contract or tort claim.” Corsello v. Verizon New
York, Inc., 18 NY3d 777, 790 (2012).
44. This is because a quasi-contract cause of action only exists in the absence of a
valid contract governing the very same events being asserted in a quasi-contract cause of action
Clark-Fitzpatrick, Inc. v. Long Is. R. Co., 70 NY2d 382, 388 (1987).
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45. As this is exactly the case here where Plaintiffs’ advance an identical breach of
contract claim, Plaintiffs’ third cause of action for unjust enrichment must be dismissed as
duplicative.
ii. Plaintiffs’ Fail To Establish The Elements Necessary For A Claim Of
Unjust Enrichment And It Should Therefore Be Dismissed
46. "The essential inquiry in any action for unjust enrichment... is whether it is
against equity and good conscience to permit the defendant to retain what is sought to be
recovered" Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 182 (2011).
47. A plaintiff must show "that (1) the other party was enriched, (2) at that party's
expense, and (3) that `it is against equity and good conscience to permit [the other party] to retain
what is sought to be recovered'" Id.
48. Here, Plaintiffs allege that:
“Plaintiff Amsterdam Hotel paid to Prose the substantial monetary
sum called for by the Surrender Agreement with the expectation
that Mandoki would never again occupy any unit in any of the
hotels or buildings affiliated with the Amsterdam Hotel.”
49. As noted above, the Surrender Agreement did not contain the language “any of
the hotels or buildings” and Plaintiffs are purposefully misleading the Court to believe otherwise.
Exhibit C.
50. Neither can it be said to be implied in the Surrender Agreement that the parties
contracted with the intent to read “any of the hotels or buildings” in the language of the Court.
Exhibit C.
51. Finally, as argued above, the Marcel is not “affiliated” with Ali Baba for any
purpose, least of all the purpose Plaintiffs attempt to associate with the Surrender Agreement.
Exhibit E-J.
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52. The purpose of the Surrender Agreement was for Prose to vacate possession of
the unit at the Amsterdam Court Hotel, and to not reoccupy the Amsterdam Court Hotel
thereafter. Prose vacated possession as required, has not reoccupied the Amsterdam Court Hotel,
or attempted to do so, thereafter, and Ali Baba has therefore received the full benefit of the
Surrender Agreement as contracted to. Exhibit C.
53. Therefore, Mandoki was not enriched at the expense of Plaintiffs.
54. Therefore, Plaintiffs’ third cause of action for Unjust Enrichment should
be dismissed under CPLR § 3211(a)(1) and (a)(7) and CPLR § 3212(b).
D. Plaintiffs’ Fourth Cause Of Action For Fraud And Deceit Should Be Dismissed
55. Plaintiffs’ fourth cause of action alleges fraudulent misrepresentation and deceit
again predicated on their baseless claim that the Surrender Agreement was breached by Mandoki
solely by his occupying of the unaffiliated Marcel. Exhibit A, page 17, pp 44-48.
56. Generally, in a claim for fraudulent misrepresentation, a plaintiff must allege "a
misrepresentation or a material omission of fact which was false and known to be false by
defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of
the other party on the misrepresentation or material omission, and injury" Mandarin Trading Ltd.
v Wildenstein, 16 NY3d 173, 178 (2011).
57. Furthermore, where a cause of action is based in fraud, "the circumstances
constituting the wrong shall be stated in detail". Id.
58. Here, Plaintiffs’ fraud and deceit claim is duplicative of their breach of contract
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claim. As noted above, the language “any hotel or building” is nowhere in the Surrender
Agreement, the intent of the parties executing the Surrender Agreement was not to include such
an interpretation, and the Marcel is not “affiliated” with Ali Baba. Exhibit C-J.
59. Plaintiffs further claim that PROSE “never intended to fulfil his promises under
the
Surrender Agreement” which is entirely baseless as the Surrender Agreement concerned his
surrender of his prior residence, which he did, and he has since not returned to the Amsterdam
Court Hotel. Exhibit A, page 17, pp 47, Exhibit C.
60. Plaintiffs further allege that Prose was “told that the Marcel Hotel was an affiliate
of the Amsterdam Hotel” which is unsupported and denied by Prose in his sworn affidavit.
61. Plaintiffs altogether fail to demonstrate a breach of the Surrender Agreement, let
alone material misrepresentation or omission of fact false or known to be false by Mandoki, and
injury.
62. Therefore, Plaintiffs’ fourth cause of action for Fraud and Deceit should be
dismissed under CPLR § 3211(a)(1) and (a)(7) and CPLR § 3212(b).
E. Plaintiffs’ Fifth Cause Of Action For Extortion, Harassment, Annoyance and
Nuisance Against All Defendants Should Be Dismissed
63. Plaintiffs’ fifth cause of action seeks an amount no less than $1,000,000.00
against Defendants on the baseless assertions of a “malicious campaign of harassment,
annoyance and nuisance”. Exhibit A, page 6, pp 21, page 18, pp 49-56.
64. In a common-law cause of action for nuisance, the plaintiff must sufficiently
plead, and subsequently establish, the following elements: "(1) an interference substantial in
nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right
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to use and enjoy land, (5) caused by another's conduct in acting or failure to act. Chelsea 18
Partners, LP v. Sheck Yee Mak, 90 AD3d 38, 41 (1st Dept 2011).
65. Furthermore, not every annoyance will constitute a nuisance, nuisance imports a
continuous invasion of rights and a pattern of continuity or recurrence of objectionable conduct.
Domen Holding Co. v. Aranovich, 1 NY3d 117, 123-124 (2003).
66. Here, in accusing Defendant Mandoki of engaging in a “campaign of harassment
and
nuisance” “which has resulted in great harm and disruption to the Marcel Hotel and its
occupants”, the first example of this “great harm” alleged by Plaintiffs is Mandoki seeking a
lease for his unit at the Marcel. Exhibit A, pages 6-7, pp 23.
67. Plaintiffs proceed to allege as examples of “great harm and disruption to the
Marcel Hotel and its occupants”:
a. A complaint of shaking or vibrating within the Marcel;
b. A report of a smoke condition on the third floor of the Marcel;
c. Alleging three “parties” on October 30, 2021, December 8, 2021 and
December 18 2021, in which, among other things, Plaintiffs allege that
Prose appeared in only a robe, and offered passerbys “hats, socks, and
gloves”; and
d. A complaint on January 3, 2022 of an odor of gas emanating from the
eleventh and twelfth floors of the Marcel. Exhibit A, pages 6-7, pp 23.
68. While baseless and unsupported, even if the Court were to afford Plaintiffs a
liberal construction of the facts they allege in their Verified Amended Complaint, these events do
not constitute a claim of nuisance, let alone a “Campaign of extortion, harassment, annoyance
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and nuisance” “which has resulted in great harm and disruption to the Marcel Hotel and its
occupants”. Exhibit A.
69. To begin with, besides these alleged “parties”, the examples proffered by
Plaintiffs are Mandoki requesting a lease for his apartment, and three separate complaints of
conditions at the Marcel, lobbied over the span of a year, and without Plaintiffs making any
claim of “harassment” beyond having filed said complaints. Exhibit A.
70. Otherwise, while baseless, if these three “parties” are afforded every possible
favorable inference for the purpose of this motion, they nonetheless fail to constitute a
substantial, intentional and unreasonable interference sufficient to support a claim for nuisance.
Furthermore, they lack a continuous invasion of rights and a pattern of continuity or recurrence
of objectionable conduct.
71. Notably Plaintiffs do not assert any actual incidents of harm by Mandoki upon
any of the occupants of Marcel, any complaints by occupants of the Marcel
against Mandoki, or any damages that stemmed from these alleged “parties”
beyond Plaintiffs claiming that they had to post security at the lounge of their
Hotel.
72. It is therefore mere conclusory statement to assert that Mandoki inflicted “great
harm” upon “the Marcel Hotel and its occupants”. Even affording Mandoki every favorable
inference, they simply do not allege any actual instances of harm and nuisance, and it is not the
Court’s responsibility to infer on their behalf.
73. For Plaintiffs to assert that Mandoki, alongside the other Defendants, must pay a
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minimum of $1,000,000.00 is clearly ludicrous. Mandoki is accused only of asking for a lease,
which is his right, nor any specific interaction with any occupants resulting in harm or nuisance.
Therefore, besides being baseless, even assuming these events to be true fails to establish a cause
of action for nuisance, let alone warrants such an extreme monetary payment. If anything,
Plaintiffs have harassed Mandoki and are clearly seeking to extort him with these outrageous and
frivolous claims.
74. Therefore, Plaintiffs’ fifth cause of action for extortion, harassment, annoyance
and nuisance should be dismissed under CPLR § 3211(a)(1) and (a)(7) and CPLR § 3212(b).
F. Plainitffs’ Sixth Cause Of Action For A Permanent Injunction Should Be Dismissed
75. Plaintiffs’ sixth cause of action seeks a permanent injunction from “engaging in
any further Nuisance Acts, or similar acts” on the claim that without it “the Marcel Hotel will
continue to incur serious and irreparable harm” Exhibit A, pages 19-20, pp 57-63.
76. To reiterate, these “Nuisance Acts” include requesting a lease, and making
complaints regarding potential smoke hazards, gas leaks and shaking. Exhibit A, pages 6-7, pp
23.
77. Plaintiffs therefore seek a permanent injunction preventing Mandoki, and several
other occupants, from making complaints, requesting leases, as is is their right, and “similar
acts”.
78. Notably, Plaintiffs allege only that Mandoki made these complaints, not that he
acted particularly belligerent or caused any harm in making these complaints.
Exhibit A, pages 6-7, pp 23. It is otherwise seen to be entirely arbitrary what
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Plaintiffs consider a “Nuisance Act”. An injunction seeking to prevent
Defendants from “engaging in any further Nuisance Acts” would essentially grant
Plaintiffs the power to harass Defendants for doing anything.
79. Ultimately, as argued above, Plaintiffs have failed to establish a cause of action
for nuisance, let alone any “serious or irreparable harm” that they have suffered or will “continue
to incur” from Mandoki.
80. Therefore, Plaintiffs are not entitled to a permanent injunction and Plaintiffs’
sixth cause of action for same should be dismissed under CPLR § 3211(a)(1) and (a)(7) and
CPLR § 3212(b).
G. Plaintiffs’ Seventh Cause Of Action For A Declaratory Judgment Should Be
Dismissed
81. Plaintiffs’ seventh and final cause of action seeks a declaratory judgment
declaring, as they allege, that the Marcel is not subject to Rent Stabilization Law, that
Defendants are not rent-regulated tenants of the Marcel, and that Defendants are not entitled to
continued occupancy and/or rent stabilized leases for the units they are occupying at the Marcel.
Exhibit A, page 21, pp 64-70.
82. Pursuant to CPLR 3001, "[t]he supreme court may render a declaratory
judgment ... as to the rights and other legal relations of the parties to a justiciable controversy."
To constitute a "justiciable controversy," there must be a real dispute between adverse parties,
involving substantial legal interests for which a declaration of rights will have some practical
effect. Chanos v. MADAC, LLC, 74 AD3d 1007, 1008 (2nd Dept 2010).
83. A controversy is said to exist where the plaintiff asserts rights which are actually
challenged by the defendant. Id.
84. Here, documentary evidence has been submitted demonstrating that the Marcel
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FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X ALI BABA HOTEL CORP d/b/a AMSTERDAM COURT HOTEL and EAST SIDE INN, LLC, d/b/a THE MARCEL Index No. 150993/2022 AT GRAMERCY Mot. Seq. 008 Plaintiffs, – against – ALEXANDER PROSE, REHAN KAPADIA, BELLA MANDOKI, CARLOS CARRILLO, and THALIA HERRERA, Defendants. ----------------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Bella Mandoki 201 e 24 street #1103 New York, NY 10019 ‘ i 1 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......................................................................................................... iv PRELIMINARY STATEMENT .................................................................................................... 1 STATEMENT OF RELEVANT FACTS ....................................................................................... 1 STANDARD OF REVIEW ............................................................................................................ 2 ARGUMENT……………………………………………………………….……………………..4 1. DISMISSAL OF PLAINTIFFS’ SEVEN CAUSES OF ACTION IS PROPER WHERE PLAINTIFFS MAKE ONLY BASELESS ASSERTIONS AND DEFENDANT BELLA MANDOKI CONCLUSIVELY ESTABLISHES DEFENSES TO THESE CLAIMS AS A MATTER OF LAW ........................................................................................................................ 4 A. Plaintiffs’ First Cause Of Action For Breach Of Contract Should Be Dismissed........................................................................................................ 4 i. The Surrender Agreement Is Clear And Unambiguous.................................. 4 ii. If Found To Be Ambiguous, The Clear Intent Of The Surrender Agreement Nevertheless Precludes Plaintiffs’ Interpretation.................................................... 5 iii. The Marcel At Gramercy Does Not Share Common Ownership With Ali Baba And They Are Not “Affiliated” For Any Purpose ...... Error! Bookmark not defined. iv. Plaintiffs Have Not Suffered Damages From Bella Mandoki Under An Alleged Breach Or Otherwise ................................................................................. 5 B. Plaintiffs’ Second Cause Of Action For Recission Of The Surrender Agreement Should Be Dismissed ................................................................... 7 C. Plaintiffs’ Third Cause Of Action For Unjust Enrichment Should Be Dismissed........................................................................................................ 8 i. Plaintiffs’ Unjust Enrichment Cause Of Action Must Be Dismissed As Duplicative Of Plaintiffs’ Breach Of Contract Claim............................................. 8 ii 2 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 ii. Plaintiffs’ Fail To Establish The Elements Necessary For A Claim Of Unjust Enrichment And It Should Therefore Be Dismissed .............................................. 9 D. Plaintiffs’ Fourth Cause Of Action For Fraud And Deceit Should Be Dismissed...................................................................................................... 10 E. Plaintiffs’ Fifth Cause Of Action For Extortion, Harassment, Annoyance and Nuisance Against All Defendants Should Be Dismissed ............................. 11 F. Plainitffs’ Sixth Cause Of Action For A Permanent Injunction Should Be Dismissed...................................................................................................... 14 G. Plaintiffs’ Seventh Cause Of Action For A Declaratory Judgment Should Be Dismissed...................................................................................................... 15 2. SUMMARY JUDGMENT GRANTING DEFENDANT MANDOKI’S COUNTERCLAIM FOR A DECLARATORY JUDGMENT IS PROPER WHERE MANDOKI HAS ESTABLISHED HIS PRIMA FACIE CASE AND PLAINTIFFS RAISE ONLY BARE ASSERTIONS IN RESPONSE .................................................................................................................................. 17 CONCLUSION ............................................................................................................................. 20 WORD COUNT CERTIFICATION ............................................................................................ 22 iii 3 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 TABLE OF AUTHORITIES CASES 25 West 24th Street LLC v. Gianquinto, 55 Misc. NY3d 28 (App. Term 1st Dept. 2017) ........... 22 Ahmad v. Chelsea Highline Hotel, 2015 NY Slip Op. 51577 (U) (App. Term 1st Dept. 2015) .. 22 Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974) ....................................................... 3 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) ................................................................................................................... 3 Callanan v Keeseville, Ausable Chasm & Lake Champlain R. R. Co., 199 N.Y. 268, 284 (1910) ................................................................................................................................................... 10 Chanos v. MADAC, LLC, 74 AD3d 1007, 1008 (2nd Dept 2010) ............................................... 19 Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 AD3d 38, 41 (1st Dept 2011) ............................ 15 Clark-Fitzpatrick, Inc. v. Long Is. R. Co., 70 NY2d 382, 388 (1987) .......................................... 12 Corsello v. Verizon New York, Inc., 18 NY3d 777, 790 (2012) ................................................... 12 Domen Holding Co. v. Aranovich, 1 NY3d 117, 123-124 (2003) ................................................ 15 Donadio v. Crouse-Irving Mem’l Hosp., Inc., 75 A.D.2d 715, 427 N.Y.S.2d 118 (4th Dept. 1980) ..................................................................................................................................................... 2 Hindes v. Weisz, 303 A.D.2d 459, 756 NYS2d 601 (2nd Dept. 2003) ........................................... 3 Jordan Mfg. Corp v. Zimmerman, 169 A.D.2d 815, 816 565 N.Y.S.2d 184, 185 (2nd Dept. 1991) ........................................................................................................................................... 3, 9, 21 Kahn v. City of New York, 30 N.Y.2d 690, 332 N.Y.S.2d 638 (1972) ........................................... 2 Leon v. Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972, 638 N.E. 2d 511 (1994)............................... 2 iv 4 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 Mak Tech. Holdings Inc. v. Anyvision Interactive Tech. Ltd., 2022 N.Y. Slip Op 7507 (App. Div. 1st Dept. 2022) ...................................................................................................................... 5, 10 Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 182 (2011) ......................................... 12,14 Matter of Gracecor Realty Co. v. Hargrove, 90 NY2d 350 (1997)........................................ 19, 21 Mondrow v. Days Inn, 48 Misc.3d 95 (App. Term 1st Dept. 2015) ............................................. 22 Nutter v. W&J Hotel Co., 171 Misc. 2d 302, 654 N.Y.S.2d 274 (1997) ................................ 20, 23 Pokoik v. Pokoik, 115 A.D.3d 428, 432 982 N.Y.S.2d 67, 72 (1st Dept. 2014) ....................... 2, 20 RCN Telecom Services, Inc. v. 202 Centre Street Realty LLC., 156 Fed.Appx.349, 350-351 (2005) .......................................................................................................................................... 4 Slamow v. Del Col, 79 N.Y.2d 1016, 1018 (1992) ......................................................................... 5 Slatt v. Slatt, 64 N.Y.2d 966 (1985) ................................................................................................ 5 W.W.W. Assoc., Inc. v Giancontieri, 77 NY2d 157, 162 (1990) .................................................... 6 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) ........................................ 19, 22 Zuckerman v. Citv of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595 (1980) .................... 2, 23 STATUTES 9 NYCRR 2520.6 (j) ..................................................................................................................... 19 9 NYCRR 2522.5 (a)(2) .......................................................................................................... 19, 22 CPLR § 3211(a) ................................................................................ 1, 9, 10, 13, 14, 16, 17, 19, 20 CPLR § 3212................................................................................. 1, 2, 9, 10, 13, 14, 16, 17, 19, 20 v 5 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 PRELIMINARY STATEMENT Defendant Bella Mandoki (“Bella Mandoki” or “Mandoki”) respectfully submits this Memorandum of Law in 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 Bella Mandoki’s First Counterclaim for a declaratory judgment that Defendant Mandoki: (a) is a rent-regulated tenant afforded all the protections under the law; (b) Marcel’s refusal to tender a lease to Mandoki, coupled with Plaintiffs’ initiation of this action, constitutes harassment of a rent regulated tenant, which is prohibited by law; (c) that Mandoki 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. STATEMENT OF RELEVANT FACTS 1. The Court is referred to the Affidavit of Defendant Bella Mandoki and the Statement of Material Facts, both annexed hereto, for a statement of the facts relevant to Defendant’s Motion.1 1 Exhibit Description A. Verified Amended Complaint dated June 30, 2022; B. Verified Amended Answer with Affirmative Defenses and Counterclaim dated October 18, 2022; C. Surrender Agreement dated July 26, 2019; D. Emails Regarding Lease E. Amsterdam Court Hotel Deed F. East Side Inn Deed G. Amsterdam Court Hotel Housing Preservation Ownership Information H. East Side Inn Housing Preservation Ownership Information I. Amsterdam Court Hotel Department of State Entity Information J. East Side Inn Department of State Entity Information K. East Side Inn Department of Buildings Property Profile L. East Side Inn Housing Division Identification Card M. SRO Rapsheet Regarding Jay Podolsky 1 6 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 STANDARD OF REVIEW 2. 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” 3. Under CPLR § 3211(a), 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). 4. 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). 5. 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). 6. 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). 2 7 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 7. 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. 8. 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). 9. 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). 10. 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). 3 8 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 ARGUMENT POINT I DISMISSAL OF PLAINTIFFS’ SEVEN CAUSES OF ACTION IS PROPER WHERE PLAINTIFFS MAKE ONLY BASELESS ASSERTIONS AND DEFENDANT BELLA MANDOKI CONCLUSIVELY ESTABLISHES DEFENSES TO THESE CLAIMS AS A MATTER OF LAW A. Plaintiffs’ First Cause Of Action For Breach Of Contract Should Be Dismissed 11. Plaintiffs’ first cause of action alleges a breach of contract in relation to a Surrender Agreement between Plaintiff Ali Baba Hotel Corp (“Ali Baba”) and Defendant ALEXANER PROSE dated July 26, 2019. Exhibit C. I was not a party to that contract. 12. In New York, the elements of a breach of contract claim are: (1) the existence of a contract, (2) performance by the party seeking recovery, (3) non-performance by the other party, and (4) damages attributable to the breach. RCN Telecom Services, Inc. v. 202 Centre Street Realty LLC., 156 Fed.Appx.349, 350-351 (2005). 13. Here, fatal to Plaintiffs’ cause of action, there was no contract. the other party and damage attributable to the breach, are non-existent. i. The Surrender Agreement Is Clear And Unambiguous 14. 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). 15. 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. 16. Here, the Surrender Agreement is clear and unambiguous. It concerns only the 4 9 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 Amsterdam Court Hotel, and Prose’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 ‘unit’ therein is in reference to the individual apartment units located in the Amsterdam Court Hotel. 17. 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). Plaintiffs cannot simply add language to the Surrender Agreement after the fact and argue that it was breached on the basis of same. 18. The Surrender Agreement stated only that Prose would not occupy “any other unit affiliated with Owner” and no mention is made in the Surrender Agreement of Bella Mandoki or any other defendant named. ii. If Found To Be Ambiguous, The Clear Intent Of The Surrender Agreement Nevertheless Precludes Plaintiffs’ Interpretation 19. Provided a writing is clear and complete, evidence outside its four corners “as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing” W.W.W. Assoc., Inc. v Giancontieri, 77 NY2d 157, 162 (1990).. 20. Nowhere in the Surrender Agreement Is there reference me. iii. Plaintiffs Have Not Suffered Damages From Bella Mandoki Under An Alleged Breach Or Otherwise 21. As a party must establish all four elements of a breach of contract to bring a cause of action under same, it is further argued that the fourth element, damage attributable to the breach, is not present under the facts herein. 5 10 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 22. Not only has Mandoki not breached the Surrender Agreement as argued above, but Plaintiffs only make baseless assertions regarding alleged damages suffered. 23. Mandoki never was party to the surrender agreement. 24. Plaintiffs’ have not otherwise established what ‘damages’ they suffered from Mandoki beyond baselessly alleging without documentary support any behavior other than requesting a lease . 25. Mere assertions and baseless accusations do not establish a material issue of fact sufficient to defeat a motion for summary judgment. Jordan Mfg. Corp v. Zimmerman, 169 A.D.2d 815, 816 565 N.Y.S.2d 184, 185 (2nd Dept. 1991). 26. Notably, no documentary evidence was submitted by Plaintiffs to support a claim of damages, and Plaintiffs instead rely exclusively on their incorrect interpretation of the Surrender Agreement. 27. Mandoki having checked in to the Marcel therefore establishes neither a breach of the Surrender Agreement, nor does Plaintiffs demonstrate any damages attributable to same. 28. Plaintiffs fail to satisfy all four elements of a Breach of Contract, raise only baseless assertions insufficient to defeat a motion for summary judgment, and Mandoki has instead raised several affirmative defenses supported by documentary evidence as demonstrated herein and annexed hereto. 29. For these reasons, Plaintiffs’ first cause of action for breach of contract should therefore be dismissed under CPLR § 3211(a)(1) and (a)(7) and CPLR § 3212(b). 6 11 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 B. Plaintiffs’ Second Cause Of Action For Recission Of The Surrender Agreement Should Be Dismissed 30. Plaintiffs’ second cause of action seeks rescission of the Surrender Agreement and demands return of the $100,000.00 paid by Ali Baba in exchange for Prose vacating and not returning to, the Amsterdam Court Hotel. Exhibit A, page 16, pp 37-39, Exhibit C. 31. In order to justify the intervention of equity to rescind a contract, a party must allege fraud in the inducement of the contract; failure of consideration; an inability to perform the contract after it is made; or a breach in the contract which substantially defeats the purpose thereof. Callanan v Keeseville, Ausable Chasm & Lake Champlain R. R. Co., 199 N.Y. 268, 284 (1910). 32. THERE WAS NO CONTRACT IN THE FIRST PLACE. 33. Here, Plaintiffs allege a: “material breach of the Surrender Agreement which substantially defeated the very purpose of the Surrender Agreement in such a fundamental way so as to defeat the object of the parties in making the Surrender Agreement” Exhibit A, page 16, pp 38. 34. However, as argued above, Plaintiffs’ interpretation of the Surrender Agreement to claim that it was breached by Mandoki residing at the Marcel is baseless. 35. Furthermore, Ali Baba is not “affiliated” with Marcel for any purpose, least of all for the purposes contemplated in the Surrender Agreement which referenced and was concerned exclusively with the Amsterdam Court Hotel. Exhibit C. 36. The Surrender Agreement was for the clear and explicit purpose of Prose returning possession of his apartment at the Amsterdam Court Hotel to Ali Baba in exchange for the payment of $100,000.00. Exhibit C. 37. The parties further contemplated and agreed that Prose would not thereafter return 7 12 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 to and reside at the Amsterdam Court Hotel. Exhibit C. 38. Plaintiffs therefore fail to establish their baseless claim that the “very purpose of the Surrender Agreement was defeated.” Exhibit A, page 16, pp 38. 39. Plaintiffs further fail, as argued in detail above, to establish any breach of the Surrender Agreement, let alone a material breach sufficient to warrant recission. 40. Therefore, Plaintiffs’ second cause of action for breach of contract should be dismissed under CPLR § 3211(a)(1) and (a)(7) and CPLR § 3212(b). C. Plaintiffs’ Third Cause Of Action For Unjust Enrichment Should Be Dismissed i. Plaintiffs’ Unjust Enrichment Cause Of Action Must Be Dismissed As Duplicative Of Plaintiffs’ Breach Of Contract Claim 41. Plaintiffs’ third cause of action alleges unjust enrichment again on the baseless assertion that Mandoki in any way breached the Surrender Agreement. Exhibit A, page 16, pp 40-43. 42. It is noted from the outset that this claim is premised on the same events as Plaintiffs’ breach of contract claim and is duplicative of same. I WAS NEVER PARTY TO ANY SURRENDER AGREEMENTS. 43. It is well settled that “[a]n unjust enrichment claim is not available where it simply duplicates, or replaces, a conventional contract or tort claim.” Corsello v. Verizon New York, Inc., 18 NY3d 777, 790 (2012). 44. This is because a quasi-contract cause of action only exists in the absence of a valid contract governing the very same events being asserted in a quasi-contract cause of action Clark-Fitzpatrick, Inc. v. Long Is. R. Co., 70 NY2d 382, 388 (1987). 8 13 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 45. As this is exactly the case here where Plaintiffs’ advance an identical breach of contract claim, Plaintiffs’ third cause of action for unjust enrichment must be dismissed as duplicative. ii. Plaintiffs’ Fail To Establish The Elements Necessary For A Claim Of Unjust Enrichment And It Should Therefore Be Dismissed 46. "The essential inquiry in any action for unjust enrichment... is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered" Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 182 (2011). 47. A plaintiff must show "that (1) the other party was enriched, (2) at that party's expense, and (3) that `it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered'" Id. 48. Here, Plaintiffs allege that: “Plaintiff Amsterdam Hotel paid to Prose the substantial monetary sum called for by the Surrender Agreement with the expectation that Mandoki would never again occupy any unit in any of the hotels or buildings affiliated with the Amsterdam Hotel.” 49. As noted above, the Surrender Agreement did not contain the language “any of the hotels or buildings” and Plaintiffs are purposefully misleading the Court to believe otherwise. Exhibit C. 50. Neither can it be said to be implied in the Surrender Agreement that the parties contracted with the intent to read “any of the hotels or buildings” in the language of the Court. Exhibit C. 51. Finally, as argued above, the Marcel is not “affiliated” with Ali Baba for any purpose, least of all the purpose Plaintiffs attempt to associate with the Surrender Agreement. Exhibit E-J. 9 14 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 52. The purpose of the Surrender Agreement was for Prose to vacate possession of the unit at the Amsterdam Court Hotel, and to not reoccupy the Amsterdam Court Hotel thereafter. Prose vacated possession as required, has not reoccupied the Amsterdam Court Hotel, or attempted to do so, thereafter, and Ali Baba has therefore received the full benefit of the Surrender Agreement as contracted to. Exhibit C. 53. Therefore, Mandoki was not enriched at the expense of Plaintiffs. 54. Therefore, Plaintiffs’ third cause of action for Unjust Enrichment should be dismissed under CPLR § 3211(a)(1) and (a)(7) and CPLR § 3212(b). D. Plaintiffs’ Fourth Cause Of Action For Fraud And Deceit Should Be Dismissed 55. Plaintiffs’ fourth cause of action alleges fraudulent misrepresentation and deceit again predicated on their baseless claim that the Surrender Agreement was breached by Mandoki solely by his occupying of the unaffiliated Marcel. Exhibit A, page 17, pp 44-48. 56. Generally, in a claim for fraudulent misrepresentation, a plaintiff must allege "a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury" Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178 (2011). 57. Furthermore, where a cause of action is based in fraud, "the circumstances constituting the wrong shall be stated in detail". Id. 58. Here, Plaintiffs’ fraud and deceit claim is duplicative of their breach of contract 10 15 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 claim. As noted above, the language “any hotel or building” is nowhere in the Surrender Agreement, the intent of the parties executing the Surrender Agreement was not to include such an interpretation, and the Marcel is not “affiliated” with Ali Baba. Exhibit C-J. 59. Plaintiffs further claim that PROSE “never intended to fulfil his promises under the Surrender Agreement” which is entirely baseless as the Surrender Agreement concerned his surrender of his prior residence, which he did, and he has since not returned to the Amsterdam Court Hotel. Exhibit A, page 17, pp 47, Exhibit C. 60. Plaintiffs further allege that Prose was “told that the Marcel Hotel was an affiliate of the Amsterdam Hotel” which is unsupported and denied by Prose in his sworn affidavit. 61. Plaintiffs altogether fail to demonstrate a breach of the Surrender Agreement, let alone material misrepresentation or omission of fact false or known to be false by Mandoki, and injury. 62. Therefore, Plaintiffs’ fourth cause of action for Fraud and Deceit should be dismissed under CPLR § 3211(a)(1) and (a)(7) and CPLR § 3212(b). E. Plaintiffs’ Fifth Cause Of Action For Extortion, Harassment, Annoyance and Nuisance Against All Defendants Should Be Dismissed 63. Plaintiffs’ fifth cause of action seeks an amount no less than $1,000,000.00 against Defendants on the baseless assertions of a “malicious campaign of harassment, annoyance and nuisance”. Exhibit A, page 6, pp 21, page 18, pp 49-56. 64. In a common-law cause of action for nuisance, the plaintiff must sufficiently plead, and subsequently establish, the following elements: "(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right 11 16 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 to use and enjoy land, (5) caused by another's conduct in acting or failure to act. Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 AD3d 38, 41 (1st Dept 2011). 65. Furthermore, not every annoyance will constitute a nuisance, nuisance imports a continuous invasion of rights and a pattern of continuity or recurrence of objectionable conduct. Domen Holding Co. v. Aranovich, 1 NY3d 117, 123-124 (2003). 66. Here, in accusing Defendant Mandoki of engaging in a “campaign of harassment and nuisance” “which has resulted in great harm and disruption to the Marcel Hotel and its occupants”, the first example of this “great harm” alleged by Plaintiffs is Mandoki seeking a lease for his unit at the Marcel. Exhibit A, pages 6-7, pp 23. 67. Plaintiffs proceed to allege as examples of “great harm and disruption to the Marcel Hotel and its occupants”: a. A complaint of shaking or vibrating within the Marcel; b. A report of a smoke condition on the third floor of the Marcel; c. Alleging three “parties” on October 30, 2021, December 8, 2021 and December 18 2021, in which, among other things, Plaintiffs allege that Prose appeared in only a robe, and offered passerbys “hats, socks, and gloves”; and d. A complaint on January 3, 2022 of an odor of gas emanating from the eleventh and twelfth floors of the Marcel. Exhibit A, pages 6-7, pp 23. 68. While baseless and unsupported, even if the Court were to afford Plaintiffs a liberal construction of the facts they allege in their Verified Amended Complaint, these events do not constitute a claim of nuisance, let alone a “Campaign of extortion, harassment, annoyance 12 17 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 and nuisance” “which has resulted in great harm and disruption to the Marcel Hotel and its occupants”. Exhibit A. 69. To begin with, besides these alleged “parties”, the examples proffered by Plaintiffs are Mandoki requesting a lease for his apartment, and three separate complaints of conditions at the Marcel, lobbied over the span of a year, and without Plaintiffs making any claim of “harassment” beyond having filed said complaints. Exhibit A. 70. Otherwise, while baseless, if these three “parties” are afforded every possible favorable inference for the purpose of this motion, they nonetheless fail to constitute a substantial, intentional and unreasonable interference sufficient to support a claim for nuisance. Furthermore, they lack a continuous invasion of rights and a pattern of continuity or recurrence of objectionable conduct. 71. Notably Plaintiffs do not assert any actual incidents of harm by Mandoki upon any of the occupants of Marcel, any complaints by occupants of the Marcel against Mandoki, or any damages that stemmed from these alleged “parties” beyond Plaintiffs claiming that they had to post security at the lounge of their Hotel. 72. It is therefore mere conclusory statement to assert that Mandoki inflicted “great harm” upon “the Marcel Hotel and its occupants”. Even affording Mandoki every favorable inference, they simply do not allege any actual instances of harm and nuisance, and it is not the Court’s responsibility to infer on their behalf. 73. For Plaintiffs to assert that Mandoki, alongside the other Defendants, must pay a 13 18 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 minimum of $1,000,000.00 is clearly ludicrous. Mandoki is accused only of asking for a lease, which is his right, nor any specific interaction with any occupants resulting in harm or nuisance. Therefore, besides being baseless, even assuming these events to be true fails to establish a cause of action for nuisance, let alone warrants such an extreme monetary payment. If anything, Plaintiffs have harassed Mandoki and are clearly seeking to extort him with these outrageous and frivolous claims. 74. Therefore, Plaintiffs’ fifth cause of action for extortion, harassment, annoyance and nuisance should be dismissed under CPLR § 3211(a)(1) and (a)(7) and CPLR § 3212(b). F. Plainitffs’ Sixth Cause Of Action For A Permanent Injunction Should Be Dismissed 75. Plaintiffs’ sixth cause of action seeks a permanent injunction from “engaging in any further Nuisance Acts, or similar acts” on the claim that without it “the Marcel Hotel will continue to incur serious and irreparable harm” Exhibit A, pages 19-20, pp 57-63. 76. To reiterate, these “Nuisance Acts” include requesting a lease, and making complaints regarding potential smoke hazards, gas leaks and shaking. Exhibit A, pages 6-7, pp 23. 77. Plaintiffs therefore seek a permanent injunction preventing Mandoki, and several other occupants, from making complaints, requesting leases, as is is their right, and “similar acts”. 78. Notably, Plaintiffs allege only that Mandoki made these complaints, not that he acted particularly belligerent or caused any harm in making these complaints. Exhibit A, pages 6-7, pp 23. It is otherwise seen to be entirely arbitrary what 14 19 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/26/2023 Plaintiffs consider a “Nuisance Act”. An injunction seeking to prevent Defendants from “engaging in any further Nuisance Acts” would essentially grant Plaintiffs the power to harass Defendants for doing anything. 79. Ultimately, as argued above, Plaintiffs have failed to establish a cause of action for nuisance, let alone any “serious or irreparable harm” that they have suffered or will “continue to incur” from Mandoki. 80. Therefore, Plaintiffs are not entitled to a permanent injunction and Plaintiffs’ sixth cause of action for same should be dismissed under CPLR § 3211(a)(1) and (a)(7) and CPLR § 3212(b). G. Plaintiffs’ Seventh Cause Of Action For A Declaratory Judgment Should Be Dismissed 81. Plaintiffs’ seventh and final cause of action seeks a declaratory judgment declaring, as they allege, that the Marcel is not subject to Rent Stabilization Law, that Defendants are not rent-regulated tenants of the Marcel, and that Defendants are not entitled to continued occupancy and/or rent stabilized leases for the units they are occupying at the Marcel. Exhibit A, page 21, pp 64-70. 82. Pursuant to CPLR 3001, "[t]he supreme court may render a declaratory judgment ... as to the rights and other legal relations of the parties to a justiciable controversy." To constitute a "justiciable controversy," there must be a real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect. Chanos v. MADAC, LLC, 74 AD3d 1007, 1008 (2nd Dept 2010). 83. A controversy is said to exist where the plaintiff asserts rights which are actually challenged by the defendant. Id. 84. Here, documentary evidence has been submitted demonstrating that the Marcel 15 20 of 27 FILED: NEW YORK COUNTY CLERK 06/26/2023 02:03 PM INDEX NO. 150993/2022 NYSCEF