Preview
FILED: QUEENS COUNTY CLERK 11/28/2023
12/24/2021 01:58
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728373/2021
NYSCEF DOC. NO. 47
1 RECEIVED NYSCEF: 11/28/2023
12/24/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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2018 LI BEN REALTY, LLC,
Petitioner, Index No.:
--against--
CK REAL ESTATE, LLC, VERIFIED PETITION
Respondents.
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Petitioner, by and through its attorney, respectfully alleges, upon information and belief,
as follows:
1. Petitioner 2018 Li Ben Realty, LLC, is a New York Limited Liability Company,
which owns 63-86 Wetherole Street, Queens, New York (“Petitioner’s Property”).
2. Petitioner’s Property is situated between two buildings, each of which has a party
wall.
3. The property adjoining Petitioner’s Property on the eastside has an address of 63-
88 Wetherole Street, Rego Park, NY (“Adjoining Property”) and is owned by CK Real Estate,
LLC (“CK Real Estate”).
4. Petitioner seeks to erect on Petitioner’s Property, a 6-story residential building,
which will provide much-needed residential space to the community. The plans and
specifications for the proposed improvement to Petitioner’s Property have been approved by the
Building Department of the City of New York (“DOB”).
5. The proposed improvement, however, cannot be completed on the Petitioner’s
Property unless, during demolition and construction, the Petitioner is permitted to:
(a) Inspect, document and monitor the existing condition of the Adjoining
Property prior to Petitioner’s excavation and shoring; and
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(b) Install scaffolding and sidewalk sheds, as required by applicable law and
DOB requirements, during demolition and construction; and
(c) granting such other and further relief as this Court deems just and proper.
6. In or about April 2021, Petitioner’s attorney began negotiating with CK Real
Estate to gain their cooperation to allow the required temporary and limited access to the
Adjoining Property.
7. Regrettably, despite using best efforts over a seven-plus month period, which
included: agreeing to pay for CK Real Estate’s reasonable legal and engineer fees; attending
several telephonic meetings; providing numerous documents and drawings to CK Real Estate’s
counsel; and providing a proposed license agreement containing all customary provisions and
protections in favor of the CK Real Estate, including: insurance and indemnification; CK Real
Estate refuses to finalize an agreement and now has simply stop answering Petitioner’s
attorney’s written and verbal communications. (See Draft License Agreement annexed hereto
as Exhibit A.)
8. Moreover, Petitioner’s Architect has advised that the requested limited access and
the placement of “sidewalk sheds” would protect the Adjoining Property and pedestrians; and
will not otherwise interfere with the use of the premises. The sidewalk sheds will extend onto the
Adjoining Property approximately 13 feet in the front and 10 feet in the rear. (See Sidewalk
Shed plan annexed hereto as Exhibit B).
9. Petitioner’s Architect further opines that he expects Construction at Petitioner’s
Property to last no more than 18 to 24 months after commencement and that the temporary
structures to be erected thereon would be minimal and not be unduly invasive and are both
necessary and required for protecting the Respondents’ Property and pedestrians pursuant to the
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Building Code of the City of New York. (See Affidavit of Chi F. Lau annexed hereto as
Exhibit C).
10. It is respectfully submitted that Petitioner has negotiated with CK Real Estate
in good faith, attempting to come to a mutually agreeable consensus that would allow Petitioner
the necessary, temporary, and limited access it needs on the Adjoining Property. However, Ck
Real Estate has arbitrarily refused to allow such access or otherwise grant Petitioner written
authorization to do so.
11. The DOB has since informed Petitioner that it will not process or issue permits for
the project until Petitioner files either (a) an access license agreement with CK Real Estate or (b)
a Court order granting Petitioner an access license to the Adjoining Property, with the DOB.
12. Petitioner has been advised that § 881 of the Real Property Law provides
authority for a court-ordered license specifically in situations such as this.
13. It is anticipated that the minor encroachment that Petitioner seeks will last only
until construction of the building on Petitioner’s Property has been completed. Thereafter,
Petitioner will fully restore the Adjoining Property.
14. Petitioner has expended a tremendous amount of time, effort, and resources to
create this precious residential space in the Rego Park community, including: the preparation of
plans and drawings for DOB submission; survey and engineering fees; and architectural and
legal costs; all for the specific purpose of erecting the aforesaid building. Similarly, carrying
costs of mortgage payments and taxes alone are causing Petitioner to lose in excess of $8,000.00
per month.
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15. The residential units created by this project will have a positive impact on the
Rego Park community by providing much needed rental units in the area. However, should the
court not grant the relief sought herein, the community would be deprived of that benefit.
16. Furthermore, unless the Court grants this limited license, Petitioner’s ability to
complete this project will be permanently lost, as there is no alternative to the requested access to
the Adjoining Property.
17. No previous application has been made for the relief sought herein.
WHEREFORE, Petitioner respectfully requests that this Court enter an Order pursuant
to RPAPL § 881, granting a license to Petitioner to:
(a) Inspect, document and monitor the existing condition of Respondents’
Property prior to Petitioner's excavation and shoring; and
(b) Install scaffolding and sidewalk sheds, as necessary during demolition and
construction; and
(c) granting such other and further relief as this Court deems just and proper.
Dated: Locust Valley, New York
December 23, 2021
___________________________________
Benjamin B. Petrofsky, Esq.
Attorney for Petitioner
129 Birch Hill Road
Locust Valley, NY 11560
(516) 231-6626
benjamin@plgoffice.com
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Sworn to before me this 23rd
day of December 2021.
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INDEX #: Year 2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
2018 LI LIN REALTY, LLC,
Petitioner,
--against--
CK REAL ESTATE, LLC,
Respondent.
VERIFIED PETITION
The Petrofsky Law Group, PLLC
BENJAMIN B. PETROFSKY, ESQ.
Attorney for Plaintiff
129 Birch Hill Road
Locust Valley, New York 11560
Office: (516) 231-6626
Facsimile: (516) 706-7628
Email: benjamin@plgoffice.com
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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2018 LI LIN REALTY, LLC
Petitioner Index No. 728373/2021
-against-
CK REAL ESTATE, LLC AFFIRMATION IN
OPPOSITION TO LI
Respondent
LIN’S ORDER TO SHOW
CAUSE
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MUI KAREN KUO, an attorney admitted to practice before the courts of the State of
New York, affirms under the penalties for perjury, pursuant to CPLR § 2106:
1. I am the attorney for respondent, CK Real Estate, LLC (“Respondent”) in the above-
captioned action, and as such, I am fully familiar with the facts and circumstances herein.
2. I respectfully submit this Affirmation in Opposition to the instant Order to Show Cause
(“OSC”) of Petitioner 2018 Li Lin Realty, LLC’s (“Petitioner”). See, Exhibit A. For the
reasons hereinafter set forth, it is submitted that the instant OSC is entirely without merit and
must, therefore, be denied in its entirety, together with costs and such other and further relief as
this Court may deem just and proper.
PRELIMINARY STATEMENT
3. Firstly, at the time Yu Xi Liu (“LIU”) filed the OSC, he was not the attorney of record
and, therefore, his authority to represent is unclear. See, Exhibits A and J.
4. More importantly, however, is that Petitioner’s OSC is devoid of any legal basis. It is
unclear as to the exact relief sought. Any discernible relief is entirely inapplicable to and outside
of the scope of this action.
5. Moreover, neither the License Agreement (“Agreement”) as a whole, nor its terms
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therein, is unconscionable, fraudulently induced, or made by mutual mistake. The Agreement is
valid, as it was formed by sophisticated parties who were represented by attorneys and was
negotiated at arm’s length and in good faith. This valid Agreement is already currently being
enforced by this Court. See, Exhibit B.
6. Petitioner’s purported “facts” are distorted, inconsistent, unsubstantiated, confusing, or
altogether irrelevant, replete with libelous and ad hominem attacks. See, Exhibit C.
7. Lastly, as of November 18, 2022, the onus was placed on Petitioner to forward all past
designs, plans, and drawings (“papers”) to Respondent so that Respondent could assist in
coordinating with the designated engineer for an accurate quote on the retainer fee. To date,
Respondent awaits Petitioner’s compliance. See, Exhibit D.
PROCEDURAL HISTORY
8. On December 24, 2021, Benjamin Petrofsky, Esq. (“Petrofsky”) filed an OSC on
Petitioner’s behalf.
9. On March 3, 2022, that OSC was served upon Respondent. See, Exhibit E.
10. On April 1, 2022, Respondent served its Answer with Counterclaims. See, Exhibit F.
11. Since February 18, 2022, your affirmant began negotiations with Petrofsky, which
resulted in a meeting of the minds by the end of March. On July 20, 2022, Petrofsky forwarded
the signed written Agreement, to which Respondent countersigned on August 5, 2022. The
attorneys had planned to discontinue the action by January 4, 2023. See, Exhibit G.
12. However, and to Respondent’s complete surprise, on September 23, 2022, in direct
violation of the Agreement, Petitioner criminally trespassed into Respondent’s property,
prompting Respondent to file an OSC with Temporary Restraining Order three days later. See,
Exhibit H.
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13. On October 3, 2022, Petitioner substituted Petrofsky with Jae Lee, Esq. (“Lee”).
14. Since the filing of Respondent’s September 26, 2022 OSC, three Court Conferences have
been held: October 12, 2022, October 19, 2022, and November 2, 2022. Each Court Order called
for the immediate removal of Petitioner’s unlawful sidewalk sheds but Petitioner persisted in its
contempt of this Court. By the third Court Order, this Honorable Court imposed a $750 per day
fine for each and every day the sheds remained in trespass, and for Petitioner to pay for
Respondent’s designated engineer. See, Exhibit I.
15. The next Court Conference had been scheduled for November 30, 2022. With Lee’s
explicit consent and in the Court’s presence, the Conference was adjourned to February 8, 2023.
See, Exhibit D.
16. On January 17, 2023, LIU files the instant OSC on Petitioner’s behalf. See, Exhibit A.
17. On January 24, 2023, LIU files a Consent to Change Attorney for Petitioner. See,
Exhibit J.
18. On October 8, 2022, Respondent commenced a separate tort action with claims of
negligence, nuisance, and trespass against Petitioner and his team for reckless demolition and
excavation that caused extensive, worsening damages to Respondent’s property including, but
not limited to, structural instability, substantial cracks on the walls, crumbling exterior walls, and
water seepage. These claims are properly addressed in a separate action because: (a) there are
other tortfeasors, in addition to Petitioner, (b) that action is in tort, as opposed to the instant one
which involves the subject Agreement, and (c) unlike Petitioner and his current counsel,
Respondent understands to seek relief in the appropriate forum. CK Real Estate, LLC v. 2018 Li
Lin Realty, et al., Index No. 721226/2022. See, Exhibit K.
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COUNTER STATEMENT OF FACTS
19. Petitioner’s property is flanked, on one side, by Capri Condominium (“Capri”), which
houses 115 residents and, on the other, by Respondent’s property, which houses three families.
Petitioner and Respondent share a party wall. An elementary school that teaches 638
schoolchildren is within twenty feet of all three structures. The entire city block is highly
trafficked and densely populated. See, Exhibit F.
20. In June of 2021, Petitioner’s team (“team”) began to demolish, excavate, and work
(“project”) on Petitioner’s property. Within a month, multiple NYC Department of Buildings
(DOB) and Environmental Control Board (OATH/ECB) citations, violations, and Citizens’
complaints arose, including blind drilling around gas pipes (the explosion of which could have
decimated the entire city block), lack of overhead protection from bricks falling atop cars,
demolition and excavation into adjoining properties without proper weatherproofing, safeguards,
and approval, and improper and unsafe shoring (the structural collapse of which can kill
hundreds). See, Exhibit L.
21. On July 13, 2021, the DOB issued a “Stop Work Order” (SWO) to Petitioner for unsafe
conditions, and a violation to Respondent for structural instability of the party wall. In brazen,
direct, and clear defiance of the SWO, the team continued to perform dangerous and unlawful
demolition and excavation, thereby receiving another violation on June 11, 2022. See, Exhibit
L.
22. Since Petitioner’s project commenced, Respondent has been suffering deteriorating
damages.
23. On September 23, 2022, in the commission of premeditated second-degree criminal
trespass and in direct defiance of the Agreement and an August 8, 2022 cease-and-desist notice,
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Jie Li (“LI”), the Petitioner’s principal, directed his workers to trespass onto Respondent’s
property, jumping Respondent’s six-feet tall backyard fence, to erect sidewalk sheds. See,
Exhibit H and Respondent’s Affidavit.
24. Petitioner, LI, and Lee (their counsel) all displayed contempt for the Court Orders of
October 12, 2022 and October 19, 2022 that ordered for immediate shed removal. See, Exhibit
I.
25. On November 2, 2022, LI personally attended the Court Conference, whereby he was
explicitly instructed to coordinate access with Respondent for shed removal. The next day, in
direct violation of the Order, LI directed workers to again trespass (Exhibit D, p. 13) and jump
Respondent’s six-feet fence, risking injuries. See, Exhibit I and Respondent’s Affidavit. The
shed removal was unsafely performed by workers who were improperly uniformed and not
wearing harnesses, climbing atop more than ten-feet-tall poles, risking injuries. See, Exhibit M.
26. From September 23, 2022 to November 3, 2022, Petitioner’s team never inspected the
haphazardly erected sheds during bad weather to ensure against collapse, defying DOB
regulations and defeating the safety purpose of overhead protection. See, Respondent’s
Affidavit.
27. While Respondent did not make any DOB complaints in December of 2022 or January of
2023 about Petitioner’s construction boards, Respondent agrees with the neighbor complainant
that construction boards have indeed been recklessly erected. One dangled over powerlines and
Respondent’s occupants in the autumn of 2022. See, Exhibit H, pp. 85-89. Another one still
hangs precariously over Respondent’s backyard in trespass, overhead, despite Respondent’s
demand to Lee on November 18, 2022 to rectify it. See, Exhibit D, pp. 18-19.
28. On December 6, 2022, a DOB violation was issued to Petitioner for non-conforming
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shoring and demolition being conducted out of sequence. On December 21, 2022, another DOB
violation was issued for non-compliant demolition. To date, the site is still under SWOs and has
failed at least six shoring re-inspections. See, Exhibit L.
29. On November 2, 2022, this Court ordered Petitioner to pay for Respondent’s designated
engineer in a lumpsum retainer payment prior to the rendering of any service. See, Exhibit I.
30. On November 18, 2022, Respondent informed Petitioner that for the designated engineer
to provide an accurate quote on the retainer fee for her structural stability investigation, she
required papers from Petitioner to understand the scope of work. See, Exhibit D. To date,
Petitioner has not furnished any papers.
31. Petitioner demonstrates a pattern of ignoring Respondent’s demands for documents and
answers. To date, Petitioner has ignored Respondent’s inquiries on insurance coverages and
construction plans for inherently dangerous activities, e.g. torch-down or explosives, all of which
pertained to contractual terms. Contrary to Petitioner’s claims, Respondent even went above and
beyond its role by translating its inquiries into Chinese, at Petrofsky’s specific request. Yet,
Petitioner dismisses Respondent’s inquiries as being “excessively prudent.” See, Exhibit N and
Respondent’s Affidavit.
32. Curiously, to date, Petitioner has not offered one engineer’s opinion on (1) its June of
2022 resumption of the project, despite SWO from July of 2021, (2) Respondent’s deteriorating
damages, and (3) the proximate cause. Notwithstanding that DOB experts’ opinions are written
on the series of violations, Respondent offered the opinions of both a civil and a structural
engineer. See, Exhibits H and L.
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ATTORNEY REPRESENTATION
33. It is unclear at the time of Petitioner’s filing of OSC who represented Petitioner, as no
Consent to Change Attorney had been served or filed. LIU appeared to have assumed
representation.
34. While Petitioner may substitute representation at any time, Petitioner is not entitled to
voiding a valid contract simply because he has new counsel. Furthermore, with every
substitution, his counsel’s understanding of the facts diminishes.
35. Petitioner cannot take a second bite at the apple by hiring a third lawyer to renege or
manipulating the Court to void a negotiated contract.
36. If Petitioner’s instant OSC were granted, a dangerous precedent would be established
where Petitioner can continuously hire different lawyers and improperly use motion practice,
everytime it wishes to be relieved of a bargain it later finds burdensome.
RESPONDENT’S RESPONSE TO PETITIONER’S PURPORTED “FACTS”:
PERJURY, LIBEL, CONTRADICTORY
37. LIU’s Affirmation in “Support” of the instant OSC is factually incorrect, misleading,
and, oftentimes, simply confusing:
(a) The Affirmation in Support is curiously titled “Affirmation of Service.”
(b) LIU affirms that he is both the attorney for the Petitioner in ¶1 and also the attorney
for Defendants in ¶2.
(c) In ¶3, LIU requests for a preliminary injunction restraining Respondent from
accessing Petitioner’s TD Bank Account. At no time whatsoever has Respondent ever been
given or had access to Petitioner’s accounts.
38. Petitioner thoroughly misrepresents the facts. Petitioner has been the actual and sole
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cause for any and all delays. Your affirmant commenced negotiations with Petrofsky, as of
February 18, 2022. See, Exhibit G. As corroborated by Petitioner, the parties, as a result of
good faith negotiations, agreed on a draft by late March of 2022. See, Exhibit C, ¶30. It was
not until July 20, 2022 that Petrofsy presented the signed agreement, to which Respondent
countersigned on August 5, 2022. See, Exhibit B. Petrofsky caused a similar four-month delay
with Petitioner’s agreement with Capri. See, Exhibit G.
39. Respondent has always acted in good faith, been responsive, prompt, and proactive for
private resolution. Since February 18, 2022, despite Respondent’s repeated demands for
information in insurance coverages and design plans, even in Chinese translations, Petrofsky
never satisfied the questions. See, Exhibit G (Respondent’s correspondence inquiries on April
11, May 3, May 31, July 20, August 5, August 8).
40. Since October 12, when Lee was substituted as Petitioner’s second lawyer, Respondent
has continued to be proactive and made at least three email inquiries (October 12, October 14,
November 18), all of which remain unanswered, among which were for papers needed by
Respondent’s engineer to provide an accurate quote. See, Exhibit D.
41. To date, Respondent’s inquiries to both Petrofsky and Lee remain unanswered.
42. LI perjures with respect to his lack of mens rea in criminal trespass. On September 23,
2022, LI of 2018 Li Lin Realty, LLC. and Jiankun Wu (“WU”) of Jia Wei Construction were not
merely conscious of but actually premeditated trespass by instructing workers to jump
Respondent’s six-feet-tall backyard fence and risk injuries. See, Exhibit H. Clearly, if
Respondent gave consent, the front doors would have been opened. At the scene, Respondent
demanded that WU immediately remove himself, his workers, and the sidewalk sheds. WU
refused, specifically deflecting to LI as the mastermind and that LI intended to complete his
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project before Respondent can seek judicial intervention. Respondent then contacted LI to
demand immediate removal. See, Respondent’s Affidavit. LI refused, citing impending
insolvency as his only response. That he now perjures (Exhibit C, ¶21) about his mens rea is
characteristic of his pattern of unlawful behavior and bad faith dealing.
43. On August 8, 2022, Respondent issued a cease-and-desist notice to LI, when he
threatened to erect sheds without fulfilling any contractual terms. See, Exhibits G, N, and
Respondent’s Affidavit. A month later, on September 23, 2022, LI proceeded anyway by
trespassing, instead of addressing Respondent’s concerns. See, Exhibits G and H. Therefore,
LI knew he was instructing workers to trespass, in direct violation of Respondent’s clearly
expressed non-consent. Even after the trespass, Respondent issued multiple demands for shed
removal to which Petitioner ignored. Indeed, Petitioner was in contempt of two Court Orders for
the removal and required the imposition of daily fines on a third Court Order to actually remove
the sheds. So, for Petitioner now to claim lack of mens rea and innocent ignorance of
Respondent’s non-consent is blatant perjury. It is not that Petitioner does not know the
contractual terms of access, it is that it does not care. Petitioner was merely employing the
Agreement as a ruse to deflect DOB inspectors and never intended to satisfy the terms, which
coincides with why he is asking the Court now to void it.
44. Respondent also challenges Petitioner’s assertion (Exhibit A, ¶33c) that there are no
alternatives to sidewalk sheds. Rather, Petitioner affirmatively chose not to employ the existing
more expensive alternative of needle beams.
45. A pre-construction survey of Respondent’s interior was to have been performed before
Petitioner’s demolition and excavation in July of 2021. See, Exhibit C, ¶32. Long before the
executed license agreement of August 5, 2022, Respondent had permitted such an interior survey
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in 2021 but Petitioner forfeited the opportunity. Any survey at this time would be a post-
demolition survey, not pre-construction, as Respondent’s current cracks are all directly
consequent to Petitioner’s project.
46. Petitioner is under SWOs for multiple reasons. Sidewalk sheds are the least of its
problems. It is currently under an engineering audit for unsafe and deviant shoring. See,
Exhibit L. Its single-minded preoccupation with rear access highlights its utter disregard for
public safety. See, Exhibit C, ¶25.
(a) SWO on December 6, 2022: “conditions of demolition and temporary shoring not
conform to plans.”
(b) SWO reinspection failures, all for non-conforming shoring, on six dates: 7/13/21,
12/13/21, 3/26/22, 6/3/22, 6/11/22, 7/14/22.
(c) On 6/11/22, “Contractor completed excavation and foundation while under SWO,
additional complaint and violation issued.”
47. Petitioner mischaracterizes Respondent’s position as “offensive.” See, Exhibit A, ¶16.
Respondent has been the innocent victim throughout, since Petitioner’s unilateral decision to
recklessly demolish and excavate, and then to criminally trespass, thereby continuously violating
Respondent, prompting it to protect its occupants’ safety and defend its property rights.
48. Petitioner entirely misrepresents the crux of the dispute. Firstly, Petitioner knew access
to the front will only be granted after prerequisite contractual terms, primarily concerning safety,
were satisfied and for which Respondent had repeatedly demanded. See, Exhibit G. Moreover,
since judicial intervention, the focus has been rightfully directed at safety and not access. That
Petitioner and its counsel both still fail to recognize the life-threatening risks Petitioner’s project
created is apparent from their myopic focus on “the issue at hand, i.e. granting LI LIN access”
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(Exhibit A, ¶47).
49. Thunderous by its silence is the lack of any proof by Petitioner to substantiate its alleged
monthly expenses. Conspicuously absent from its instant OSC are any receipts, such as current
payments for Capri’s license fee. If Petitioner’s purported “numbers” are indeed real, then they
indicate that Petitioner not only lacks preparation but, more importantly, that Petitioner is a
novice at development and therefore should be more closely supervised on safety issues.
50. Petitioner’s monthly insurance premium explains why it failed to furnish Respondent
with its own policy, despite repeated demands. Policies that cover demolition and excavation
cost ten times more than Petitioner’s current premium, which coincides with the average
homeowner’s premium. See, Exhibit C, ¶19. Apparently, Petitioner saved by cutting corners
with its demolition, excavation, and shoring. It appears to do the same with its insurance policy
that does not cover its project. See, Exhibit G.
51. In this Court’s presence, Lee extended a broad and generous invitation that the
Conference could be adjourned for two months. Petitioner now unreasonably defames
Respondent of bad faith dealing. See, Exhibit D.
52. Petitioner is responsible for its own delays from Petrofsky’s non-response for four
months to Lee’s non-response to inquiries, including those needed by Respondent’s engineer. If
anything, Respondent has been patiently waiting in good faith since July 13, 2021 for Petitioner
to fulfill its repeated promise of repairing Respondent’s damages.
53. For reasons unclear, Petitioner resorts to libelous allegations as Petitioner libels against
Respondent and makes unsubstantiated, false accusations about DOB complaints. Respondent
did not make any complaints to the DOB in December of 2022 nor January of 2023. The only
interaction Respondent had with the DOB in December was when the DOB specifically
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requested for Respondent’s presence at an engineering audit of Petitioner’s property and to
examine the adjoining party wall. See, Respondent’s Affidavit.
54. Petitioner is surrounded by hundreds of concerned neighbors, including Capri’s 115
residents, who have been vigilantly guarding their own safety.
55. Since the last Court Conference on November 2, 2022, the DOB has issued two more
violations against Petitioner:
(a) On December 6, 2022: demolition out of sequence and non-conforming shoring
departing from approved plans. See, Exhibit L.
(b) On December 21, 2022: demolition in a non-compliant manner. See, Exhibit L.
56. Therefore, while Petitioner has not recently violated its SWO (Exhibit A, ¶46), it
continues to receive violations because the DOB has just commenced investigation into
Petitioner’s past conduct.
57. If there is any schadenfreude (Exhibit C, ¶83), it is Petitioner who has been insouciantly
profiting from Respondent’s damages caused directly by Petitioner. From causing property and
structural damages to premeditated and orchestrated second-degree criminal trespass against
Respondent twice, Petitioner has repetitively violated Respondent without regard to the law and
at Respondent’s expense.
58. Petitioner mischaracterizes Respondent’s tort action against Petitioner’s team by failing
to mention negligence, nuisance, structural and property damages. The sidewalk sheds are one
of many claims against the team. See, Exhibits C, ¶59 and K.
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THE INSTANT APPLICATION HAS NO LEGAL BASIS:
I. VALID CONTRACT: GOOD FAITH, ARM’S LENGTH, NEGOTIATED
BETWEEN LAWYERS
59. The subject License Agreement is a valid and enforceable contract. The terms are clear
and unambiguous in their plain language and were negotiated, in good faith, at arm’s length, by
and between sophisticated, counseled parties, with equal bargaining power. Moreover, the
Agreement, as a whole, does not, in any manner, violate any weighty public policy interest such
as would outweigh the strong public policy in favor of freedom of contract. 159 MP Corp. v.
Redbridge Bedford, LLC, 160 A.D.3d 176 (2nd Dept. 2018) (Court enforced waiver clause for
declaratory judgment in a landlord-tenant lease; not against public policy; freedom of contract).
60. It is well settled that absent a violation of law or some transgression of public policy,
people are free to enter into contracts, making whatever agreement they wish no matter how
unwise they may seem to others, and there is no reason to relieve them of the consequences of
their bargain, even if it becomes a burdensome bargain. Rowe v Great Atlantic & Pacific Tea
Company, Inc., 46 N.Y.2d 62 (1978); Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co.,
86 N.Y.2d 685 (1995); Backer Mgt. Corp. v. Acme Quilting, 46 N.Y.2d 211 (N.Y. 1978).
Consequently, when a contract dispute arises, it is the Court’s role to enforce the agreement
rather than to reform it. Grace v. Nappa, 46 N.Y.2d 560 (1979). When a Court invalidates a
contractual provision, one party is deprived of the benefit of the bargain. Rowe v. Great Atl. &
Pac. Tea Co., 46 N.Y.2d 62 (N.Y. 1978). By disfavoring judicial upending of the b
Preview
FILED: QUEENS COUNTY CLERK 11/28/2023 12/24/2021 01:58 12:31 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 1 RECEIVED NYSCEF: 11/28/2023 12/24/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------------X 2018 LI BEN REALTY, LLC, Petitioner, Index No.: --against-- CK REAL ESTATE, LLC, VERIFIED PETITION Respondents. -------------------------------------------------------------------------X Petitioner, by and through its attorney, respectfully alleges, upon information and belief, as follows: 1. Petitioner 2018 Li Ben Realty, LLC, is a New York Limited Liability Company, which owns 63-86 Wetherole Street, Queens, New York (“Petitioner’s Property”). 2. Petitioner’s Property is situated between two buildings, each of which has a party wall. 3. The property adjoining Petitioner’s Property on the eastside has an address of 63- 88 Wetherole Street, Rego Park, NY (“Adjoining Property”) and is owned by CK Real Estate, LLC (“CK Real Estate”). 4. Petitioner seeks to erect on Petitioner’s Property, a 6-story residential building, which will provide much-needed residential space to the community. The plans and specifications for the proposed improvement to Petitioner’s Property have been approved by the Building Department of the City of New York (“DOB”). 5. The proposed improvement, however, cannot be completed on the Petitioner’s Property unless, during demolition and construction, the Petitioner is permitted to: (a) Inspect, document and monitor the existing condition of the Adjoining Property prior to Petitioner’s excavation and shoring; and 1 1 of 6 FILED: QUEENS COUNTY CLERK 11/28/2023 12/24/2021 01:58 12:31 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 1 RECEIVED NYSCEF: 11/28/2023 12/24/2021 (b) Install scaffolding and sidewalk sheds, as required by applicable law and DOB requirements, during demolition and construction; and (c) granting such other and further relief as this Court deems just and proper. 6. In or about April 2021, Petitioner’s attorney began negotiating with CK Real Estate to gain their cooperation to allow the required temporary and limited access to the Adjoining Property. 7. Regrettably, despite using best efforts over a seven-plus month period, which included: agreeing to pay for CK Real Estate’s reasonable legal and engineer fees; attending several telephonic meetings; providing numerous documents and drawings to CK Real Estate’s counsel; and providing a proposed license agreement containing all customary provisions and protections in favor of the CK Real Estate, including: insurance and indemnification; CK Real Estate refuses to finalize an agreement and now has simply stop answering Petitioner’s attorney’s written and verbal communications. (See Draft License Agreement annexed hereto as Exhibit A.) 8. Moreover, Petitioner’s Architect has advised that the requested limited access and the placement of “sidewalk sheds” would protect the Adjoining Property and pedestrians; and will not otherwise interfere with the use of the premises. The sidewalk sheds will extend onto the Adjoining Property approximately 13 feet in the front and 10 feet in the rear. (See Sidewalk Shed plan annexed hereto as Exhibit B). 9. Petitioner’s Architect further opines that he expects Construction at Petitioner’s Property to last no more than 18 to 24 months after commencement and that the temporary structures to be erected thereon would be minimal and not be unduly invasive and are both necessary and required for protecting the Respondents’ Property and pedestrians pursuant to the 2 2 of 6 FILED: QUEENS COUNTY CLERK 11/28/2023 12/24/2021 01:58 12:31 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 1 RECEIVED NYSCEF: 11/28/2023 12/24/2021 Building Code of the City of New York. (See Affidavit of Chi F. Lau annexed hereto as Exhibit C). 10. It is respectfully submitted that Petitioner has negotiated with CK Real Estate in good faith, attempting to come to a mutually agreeable consensus that would allow Petitioner the necessary, temporary, and limited access it needs on the Adjoining Property. However, Ck Real Estate has arbitrarily refused to allow such access or otherwise grant Petitioner written authorization to do so. 11. The DOB has since informed Petitioner that it will not process or issue permits for the project until Petitioner files either (a) an access license agreement with CK Real Estate or (b) a Court order granting Petitioner an access license to the Adjoining Property, with the DOB. 12. Petitioner has been advised that § 881 of the Real Property Law provides authority for a court-ordered license specifically in situations such as this. 13. It is anticipated that the minor encroachment that Petitioner seeks will last only until construction of the building on Petitioner’s Property has been completed. Thereafter, Petitioner will fully restore the Adjoining Property. 14. Petitioner has expended a tremendous amount of time, effort, and resources to create this precious residential space in the Rego Park community, including: the preparation of plans and drawings for DOB submission; survey and engineering fees; and architectural and legal costs; all for the specific purpose of erecting the aforesaid building. Similarly, carrying costs of mortgage payments and taxes alone are causing Petitioner to lose in excess of $8,000.00 per month. 3 3 of 6 FILED: QUEENS COUNTY CLERK 11/28/2023 12/24/2021 01:58 12:31 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 1 RECEIVED NYSCEF: 11/28/2023 12/24/2021 15. The residential units created by this project will have a positive impact on the Rego Park community by providing much needed rental units in the area. However, should the court not grant the relief sought herein, the community would be deprived of that benefit. 16. Furthermore, unless the Court grants this limited license, Petitioner’s ability to complete this project will be permanently lost, as there is no alternative to the requested access to the Adjoining Property. 17. No previous application has been made for the relief sought herein. WHEREFORE, Petitioner respectfully requests that this Court enter an Order pursuant to RPAPL § 881, granting a license to Petitioner to: (a) Inspect, document and monitor the existing condition of Respondents’ Property prior to Petitioner's excavation and shoring; and (b) Install scaffolding and sidewalk sheds, as necessary during demolition and construction; and (c) granting such other and further relief as this Court deems just and proper. Dated: Locust Valley, New York December 23, 2021 ___________________________________ Benjamin B. Petrofsky, Esq. Attorney for Petitioner 129 Birch Hill Road Locust Valley, NY 11560 (516) 231-6626 benjamin@plgoffice.com 4 4 of 6 FILED: QUEENS COUNTY CLERK 11/28/2023 12/24/2021 01:58 12:31 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 1 RECEIVED NYSCEF: 11/28/2023 12/24/2021 Sworn to before me this 23rd day of December 2021. 5 of 6 FILED: QUEENS COUNTY CLERK 11/28/2023 12/24/2021 01:58 12:31 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 1 RECEIVED NYSCEF: 11/28/2023 12/24/2021 INDEX #: Year 2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS 2018 LI LIN REALTY, LLC, Petitioner, --against-- CK REAL ESTATE, LLC, Respondent. VERIFIED PETITION The Petrofsky Law Group, PLLC BENJAMIN B. PETROFSKY, ESQ. Attorney for Plaintiff 129 Birch Hill Road Locust Valley, New York 11560 Office: (516) 231-6626 Facsimile: (516) 706-7628 Email: benjamin@plgoffice.com 6 of 6 FILED: QUEENS COUNTY CLERK 11/28/2023 01/25/2022 01:58 12:27 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 8 RECEIVED NYSCEF: 11/28/2023 01/25/2022 1/25/2022 1 of 2 FILED: QUEENS COUNTY CLERK 11/28/2023 01/25/2022 01:58 12:27 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 8 RECEIVED NYSCEF: 11/28/2023 01/25/2022 1/25/2022 2 of 2 FILED: QUEENS COUNTY CLERK 11/28/2023 02/02/2023 01:58 07:42 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 82 RECEIVED NYSCEF: 11/28/2023 02/02/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS --------------------------------------------------------------------X 2018 LI LIN REALTY, LLC Petitioner Index No. 728373/2021 -against- CK REAL ESTATE, LLC AFFIRMATION IN OPPOSITION TO LI Respondent LIN’S ORDER TO SHOW CAUSE --------------------------------------------------------------------X MUI KAREN KUO, an attorney admitted to practice before the courts of the State of New York, affirms under the penalties for perjury, pursuant to CPLR § 2106: 1. I am the attorney for respondent, CK Real Estate, LLC (“Respondent”) in the above- captioned action, and as such, I am fully familiar with the facts and circumstances herein. 2. I respectfully submit this Affirmation in Opposition to the instant Order to Show Cause (“OSC”) of Petitioner 2018 Li Lin Realty, LLC’s (“Petitioner”). See, Exhibit A. For the reasons hereinafter set forth, it is submitted that the instant OSC is entirely without merit and must, therefore, be denied in its entirety, together with costs and such other and further relief as this Court may deem just and proper. PRELIMINARY STATEMENT 3. Firstly, at the time Yu Xi Liu (“LIU”) filed the OSC, he was not the attorney of record and, therefore, his authority to represent is unclear. See, Exhibits A and J. 4. More importantly, however, is that Petitioner’s OSC is devoid of any legal basis. It is unclear as to the exact relief sought. Any discernible relief is entirely inapplicable to and outside of the scope of this action. 5. Moreover, neither the License Agreement (“Agreement”) as a whole, nor its terms 1 of 29 FILED: QUEENS COUNTY CLERK 11/28/2023 02/02/2023 01:58 07:42 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 82 RECEIVED NYSCEF: 11/28/2023 02/02/2023 therein, is unconscionable, fraudulently induced, or made by mutual mistake. The Agreement is valid, as it was formed by sophisticated parties who were represented by attorneys and was negotiated at arm’s length and in good faith. This valid Agreement is already currently being enforced by this Court. See, Exhibit B. 6. Petitioner’s purported “facts” are distorted, inconsistent, unsubstantiated, confusing, or altogether irrelevant, replete with libelous and ad hominem attacks. See, Exhibit C. 7. Lastly, as of November 18, 2022, the onus was placed on Petitioner to forward all past designs, plans, and drawings (“papers”) to Respondent so that Respondent could assist in coordinating with the designated engineer for an accurate quote on the retainer fee. To date, Respondent awaits Petitioner’s compliance. See, Exhibit D. PROCEDURAL HISTORY 8. On December 24, 2021, Benjamin Petrofsky, Esq. (“Petrofsky”) filed an OSC on Petitioner’s behalf. 9. On March 3, 2022, that OSC was served upon Respondent. See, Exhibit E. 10. On April 1, 2022, Respondent served its Answer with Counterclaims. See, Exhibit F. 11. Since February 18, 2022, your affirmant began negotiations with Petrofsky, which resulted in a meeting of the minds by the end of March. On July 20, 2022, Petrofsky forwarded the signed written Agreement, to which Respondent countersigned on August 5, 2022. The attorneys had planned to discontinue the action by January 4, 2023. See, Exhibit G. 12. However, and to Respondent’s complete surprise, on September 23, 2022, in direct violation of the Agreement, Petitioner criminally trespassed into Respondent’s property, prompting Respondent to file an OSC with Temporary Restraining Order three days later. See, Exhibit H. 2 2 of 29 FILED: QUEENS COUNTY CLERK 11/28/2023 02/02/2023 01:58 07:42 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 82 RECEIVED NYSCEF: 11/28/2023 02/02/2023 13. On October 3, 2022, Petitioner substituted Petrofsky with Jae Lee, Esq. (“Lee”). 14. Since the filing of Respondent’s September 26, 2022 OSC, three Court Conferences have been held: October 12, 2022, October 19, 2022, and November 2, 2022. Each Court Order called for the immediate removal of Petitioner’s unlawful sidewalk sheds but Petitioner persisted in its contempt of this Court. By the third Court Order, this Honorable Court imposed a $750 per day fine for each and every day the sheds remained in trespass, and for Petitioner to pay for Respondent’s designated engineer. See, Exhibit I. 15. The next Court Conference had been scheduled for November 30, 2022. With Lee’s explicit consent and in the Court’s presence, the Conference was adjourned to February 8, 2023. See, Exhibit D. 16. On January 17, 2023, LIU files the instant OSC on Petitioner’s behalf. See, Exhibit A. 17. On January 24, 2023, LIU files a Consent to Change Attorney for Petitioner. See, Exhibit J. 18. On October 8, 2022, Respondent commenced a separate tort action with claims of negligence, nuisance, and trespass against Petitioner and his team for reckless demolition and excavation that caused extensive, worsening damages to Respondent’s property including, but not limited to, structural instability, substantial cracks on the walls, crumbling exterior walls, and water seepage. These claims are properly addressed in a separate action because: (a) there are other tortfeasors, in addition to Petitioner, (b) that action is in tort, as opposed to the instant one which involves the subject Agreement, and (c) unlike Petitioner and his current counsel, Respondent understands to seek relief in the appropriate forum. CK Real Estate, LLC v. 2018 Li Lin Realty, et al., Index No. 721226/2022. See, Exhibit K. 3 3 of 29 FILED: QUEENS COUNTY CLERK 11/28/2023 02/02/2023 01:58 07:42 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 82 RECEIVED NYSCEF: 11/28/2023 02/02/2023 COUNTER STATEMENT OF FACTS 19. Petitioner’s property is flanked, on one side, by Capri Condominium (“Capri”), which houses 115 residents and, on the other, by Respondent’s property, which houses three families. Petitioner and Respondent share a party wall. An elementary school that teaches 638 schoolchildren is within twenty feet of all three structures. The entire city block is highly trafficked and densely populated. See, Exhibit F. 20. In June of 2021, Petitioner’s team (“team”) began to demolish, excavate, and work (“project”) on Petitioner’s property. Within a month, multiple NYC Department of Buildings (DOB) and Environmental Control Board (OATH/ECB) citations, violations, and Citizens’ complaints arose, including blind drilling around gas pipes (the explosion of which could have decimated the entire city block), lack of overhead protection from bricks falling atop cars, demolition and excavation into adjoining properties without proper weatherproofing, safeguards, and approval, and improper and unsafe shoring (the structural collapse of which can kill hundreds). See, Exhibit L. 21. On July 13, 2021, the DOB issued a “Stop Work Order” (SWO) to Petitioner for unsafe conditions, and a violation to Respondent for structural instability of the party wall. In brazen, direct, and clear defiance of the SWO, the team continued to perform dangerous and unlawful demolition and excavation, thereby receiving another violation on June 11, 2022. See, Exhibit L. 22. Since Petitioner’s project commenced, Respondent has been suffering deteriorating damages. 23. On September 23, 2022, in the commission of premeditated second-degree criminal trespass and in direct defiance of the Agreement and an August 8, 2022 cease-and-desist notice, 4 4 of 29 FILED: QUEENS COUNTY CLERK 11/28/2023 02/02/2023 01:58 07:42 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 82 RECEIVED NYSCEF: 11/28/2023 02/02/2023 Jie Li (“LI”), the Petitioner’s principal, directed his workers to trespass onto Respondent’s property, jumping Respondent’s six-feet tall backyard fence, to erect sidewalk sheds. See, Exhibit H and Respondent’s Affidavit. 24. Petitioner, LI, and Lee (their counsel) all displayed contempt for the Court Orders of October 12, 2022 and October 19, 2022 that ordered for immediate shed removal. See, Exhibit I. 25. On November 2, 2022, LI personally attended the Court Conference, whereby he was explicitly instructed to coordinate access with Respondent for shed removal. The next day, in direct violation of the Order, LI directed workers to again trespass (Exhibit D, p. 13) and jump Respondent’s six-feet fence, risking injuries. See, Exhibit I and Respondent’s Affidavit. The shed removal was unsafely performed by workers who were improperly uniformed and not wearing harnesses, climbing atop more than ten-feet-tall poles, risking injuries. See, Exhibit M. 26. From September 23, 2022 to November 3, 2022, Petitioner’s team never inspected the haphazardly erected sheds during bad weather to ensure against collapse, defying DOB regulations and defeating the safety purpose of overhead protection. See, Respondent’s Affidavit. 27. While Respondent did not make any DOB complaints in December of 2022 or January of 2023 about Petitioner’s construction boards, Respondent agrees with the neighbor complainant that construction boards have indeed been recklessly erected. One dangled over powerlines and Respondent’s occupants in the autumn of 2022. See, Exhibit H, pp. 85-89. Another one still hangs precariously over Respondent’s backyard in trespass, overhead, despite Respondent’s demand to Lee on November 18, 2022 to rectify it. See, Exhibit D, pp. 18-19. 28. On December 6, 2022, a DOB violation was issued to Petitioner for non-conforming 5 5 of 29 FILED: QUEENS COUNTY CLERK 11/28/2023 02/02/2023 01:58 07:42 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 82 RECEIVED NYSCEF: 11/28/2023 02/02/2023 shoring and demolition being conducted out of sequence. On December 21, 2022, another DOB violation was issued for non-compliant demolition. To date, the site is still under SWOs and has failed at least six shoring re-inspections. See, Exhibit L. 29. On November 2, 2022, this Court ordered Petitioner to pay for Respondent’s designated engineer in a lumpsum retainer payment prior to the rendering of any service. See, Exhibit I. 30. On November 18, 2022, Respondent informed Petitioner that for the designated engineer to provide an accurate quote on the retainer fee for her structural stability investigation, she required papers from Petitioner to understand the scope of work. See, Exhibit D. To date, Petitioner has not furnished any papers. 31. Petitioner demonstrates a pattern of ignoring Respondent’s demands for documents and answers. To date, Petitioner has ignored Respondent’s inquiries on insurance coverages and construction plans for inherently dangerous activities, e.g. torch-down or explosives, all of which pertained to contractual terms. Contrary to Petitioner’s claims, Respondent even went above and beyond its role by translating its inquiries into Chinese, at Petrofsky’s specific request. Yet, Petitioner dismisses Respondent’s inquiries as being “excessively prudent.” See, Exhibit N and Respondent’s Affidavit. 32. Curiously, to date, Petitioner has not offered one engineer’s opinion on (1) its June of 2022 resumption of the project, despite SWO from July of 2021, (2) Respondent’s deteriorating damages, and (3) the proximate cause. Notwithstanding that DOB experts’ opinions are written on the series of violations, Respondent offered the opinions of both a civil and a structural engineer. See, Exhibits H and L. 6 6 of 29 FILED: QUEENS COUNTY CLERK 11/28/2023 02/02/2023 01:58 07:42 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 82 RECEIVED NYSCEF: 11/28/2023 02/02/2023 ATTORNEY REPRESENTATION 33. It is unclear at the time of Petitioner’s filing of OSC who represented Petitioner, as no Consent to Change Attorney had been served or filed. LIU appeared to have assumed representation. 34. While Petitioner may substitute representation at any time, Petitioner is not entitled to voiding a valid contract simply because he has new counsel. Furthermore, with every substitution, his counsel’s understanding of the facts diminishes. 35. Petitioner cannot take a second bite at the apple by hiring a third lawyer to renege or manipulating the Court to void a negotiated contract. 36. If Petitioner’s instant OSC were granted, a dangerous precedent would be established where Petitioner can continuously hire different lawyers and improperly use motion practice, everytime it wishes to be relieved of a bargain it later finds burdensome. RESPONDENT’S RESPONSE TO PETITIONER’S PURPORTED “FACTS”: PERJURY, LIBEL, CONTRADICTORY 37. LIU’s Affirmation in “Support” of the instant OSC is factually incorrect, misleading, and, oftentimes, simply confusing: (a) The Affirmation in Support is curiously titled “Affirmation of Service.” (b) LIU affirms that he is both the attorney for the Petitioner in ¶1 and also the attorney for Defendants in ¶2. (c) In ¶3, LIU requests for a preliminary injunction restraining Respondent from accessing Petitioner’s TD Bank Account. At no time whatsoever has Respondent ever been given or had access to Petitioner’s accounts. 38. Petitioner thoroughly misrepresents the facts. Petitioner has been the actual and sole 7 7 of 29 FILED: QUEENS COUNTY CLERK 11/28/2023 02/02/2023 01:58 07:42 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 82 RECEIVED NYSCEF: 11/28/2023 02/02/2023 cause for any and all delays. Your affirmant commenced negotiations with Petrofsky, as of February 18, 2022. See, Exhibit G. As corroborated by Petitioner, the parties, as a result of good faith negotiations, agreed on a draft by late March of 2022. See, Exhibit C, ¶30. It was not until July 20, 2022 that Petrofsy presented the signed agreement, to which Respondent countersigned on August 5, 2022. See, Exhibit B. Petrofsky caused a similar four-month delay with Petitioner’s agreement with Capri. See, Exhibit G. 39. Respondent has always acted in good faith, been responsive, prompt, and proactive for private resolution. Since February 18, 2022, despite Respondent’s repeated demands for information in insurance coverages and design plans, even in Chinese translations, Petrofsky never satisfied the questions. See, Exhibit G (Respondent’s correspondence inquiries on April 11, May 3, May 31, July 20, August 5, August 8). 40. Since October 12, when Lee was substituted as Petitioner’s second lawyer, Respondent has continued to be proactive and made at least three email inquiries (October 12, October 14, November 18), all of which remain unanswered, among which were for papers needed by Respondent’s engineer to provide an accurate quote. See, Exhibit D. 41. To date, Respondent’s inquiries to both Petrofsky and Lee remain unanswered. 42. LI perjures with respect to his lack of mens rea in criminal trespass. On September 23, 2022, LI of 2018 Li Lin Realty, LLC. and Jiankun Wu (“WU”) of Jia Wei Construction were not merely conscious of but actually premeditated trespass by instructing workers to jump Respondent’s six-feet-tall backyard fence and risk injuries. See, Exhibit H. Clearly, if Respondent gave consent, the front doors would have been opened. At the scene, Respondent demanded that WU immediately remove himself, his workers, and the sidewalk sheds. WU refused, specifically deflecting to LI as the mastermind and that LI intended to complete his 8 8 of 29 FILED: QUEENS COUNTY CLERK 11/28/2023 02/02/2023 01:58 07:42 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 82 RECEIVED NYSCEF: 11/28/2023 02/02/2023 project before Respondent can seek judicial intervention. Respondent then contacted LI to demand immediate removal. See, Respondent’s Affidavit. LI refused, citing impending insolvency as his only response. That he now perjures (Exhibit C, ¶21) about his mens rea is characteristic of his pattern of unlawful behavior and bad faith dealing. 43. On August 8, 2022, Respondent issued a cease-and-desist notice to LI, when he threatened to erect sheds without fulfilling any contractual terms. See, Exhibits G, N, and Respondent’s Affidavit. A month later, on September 23, 2022, LI proceeded anyway by trespassing, instead of addressing Respondent’s concerns. See, Exhibits G and H. Therefore, LI knew he was instructing workers to trespass, in direct violation of Respondent’s clearly expressed non-consent. Even after the trespass, Respondent issued multiple demands for shed removal to which Petitioner ignored. Indeed, Petitioner was in contempt of two Court Orders for the removal and required the imposition of daily fines on a third Court Order to actually remove the sheds. So, for Petitioner now to claim lack of mens rea and innocent ignorance of Respondent’s non-consent is blatant perjury. It is not that Petitioner does not know the contractual terms of access, it is that it does not care. Petitioner was merely employing the Agreement as a ruse to deflect DOB inspectors and never intended to satisfy the terms, which coincides with why he is asking the Court now to void it. 44. Respondent also challenges Petitioner’s assertion (Exhibit A, ¶33c) that there are no alternatives to sidewalk sheds. Rather, Petitioner affirmatively chose not to employ the existing more expensive alternative of needle beams. 45. A pre-construction survey of Respondent’s interior was to have been performed before Petitioner’s demolition and excavation in July of 2021. See, Exhibit C, ¶32. Long before the executed license agreement of August 5, 2022, Respondent had permitted such an interior survey 9 9 of 29 FILED: QUEENS COUNTY CLERK 11/28/2023 02/02/2023 01:58 07:42 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 82 RECEIVED NYSCEF: 11/28/2023 02/02/2023 in 2021 but Petitioner forfeited the opportunity. Any survey at this time would be a post- demolition survey, not pre-construction, as Respondent’s current cracks are all directly consequent to Petitioner’s project. 46. Petitioner is under SWOs for multiple reasons. Sidewalk sheds are the least of its problems. It is currently under an engineering audit for unsafe and deviant shoring. See, Exhibit L. Its single-minded preoccupation with rear access highlights its utter disregard for public safety. See, Exhibit C, ¶25. (a) SWO on December 6, 2022: “conditions of demolition and temporary shoring not conform to plans.” (b) SWO reinspection failures, all for non-conforming shoring, on six dates: 7/13/21, 12/13/21, 3/26/22, 6/3/22, 6/11/22, 7/14/22. (c) On 6/11/22, “Contractor completed excavation and foundation while under SWO, additional complaint and violation issued.” 47. Petitioner mischaracterizes Respondent’s position as “offensive.” See, Exhibit A, ¶16. Respondent has been the innocent victim throughout, since Petitioner’s unilateral decision to recklessly demolish and excavate, and then to criminally trespass, thereby continuously violating Respondent, prompting it to protect its occupants’ safety and defend its property rights. 48. Petitioner entirely misrepresents the crux of the dispute. Firstly, Petitioner knew access to the front will only be granted after prerequisite contractual terms, primarily concerning safety, were satisfied and for which Respondent had repeatedly demanded. See, Exhibit G. Moreover, since judicial intervention, the focus has been rightfully directed at safety and not access. That Petitioner and its counsel both still fail to recognize the life-threatening risks Petitioner’s project created is apparent from their myopic focus on “the issue at hand, i.e. granting LI LIN access” 10 10 of 29 FILED: QUEENS COUNTY CLERK 11/28/2023 02/02/2023 01:58 07:42 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 82 RECEIVED NYSCEF: 11/28/2023 02/02/2023 (Exhibit A, ¶47). 49. Thunderous by its silence is the lack of any proof by Petitioner to substantiate its alleged monthly expenses. Conspicuously absent from its instant OSC are any receipts, such as current payments for Capri’s license fee. If Petitioner’s purported “numbers” are indeed real, then they indicate that Petitioner not only lacks preparation but, more importantly, that Petitioner is a novice at development and therefore should be more closely supervised on safety issues. 50. Petitioner’s monthly insurance premium explains why it failed to furnish Respondent with its own policy, despite repeated demands. Policies that cover demolition and excavation cost ten times more than Petitioner’s current premium, which coincides with the average homeowner’s premium. See, Exhibit C, ¶19. Apparently, Petitioner saved by cutting corners with its demolition, excavation, and shoring. It appears to do the same with its insurance policy that does not cover its project. See, Exhibit G. 51. In this Court’s presence, Lee extended a broad and generous invitation that the Conference could be adjourned for two months. Petitioner now unreasonably defames Respondent of bad faith dealing. See, Exhibit D. 52. Petitioner is responsible for its own delays from Petrofsky’s non-response for four months to Lee’s non-response to inquiries, including those needed by Respondent’s engineer. If anything, Respondent has been patiently waiting in good faith since July 13, 2021 for Petitioner to fulfill its repeated promise of repairing Respondent’s damages. 53. For reasons unclear, Petitioner resorts to libelous allegations as Petitioner libels against Respondent and makes unsubstantiated, false accusations about DOB complaints. Respondent did not make any complaints to the DOB in December of 2022 nor January of 2023. The only interaction Respondent had with the DOB in December was when the DOB specifically 11 11 of 29 FILED: QUEENS COUNTY CLERK 11/28/2023 02/02/2023 01:58 07:42 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 82 RECEIVED NYSCEF: 11/28/2023 02/02/2023 requested for Respondent’s presence at an engineering audit of Petitioner’s property and to examine the adjoining party wall. See, Respondent’s Affidavit. 54. Petitioner is surrounded by hundreds of concerned neighbors, including Capri’s 115 residents, who have been vigilantly guarding their own safety. 55. Since the last Court Conference on November 2, 2022, the DOB has issued two more violations against Petitioner: (a) On December 6, 2022: demolition out of sequence and non-conforming shoring departing from approved plans. See, Exhibit L. (b) On December 21, 2022: demolition in a non-compliant manner. See, Exhibit L. 56. Therefore, while Petitioner has not recently violated its SWO (Exhibit A, ¶46), it continues to receive violations because the DOB has just commenced investigation into Petitioner’s past conduct. 57. If there is any schadenfreude (Exhibit C, ¶83), it is Petitioner who has been insouciantly profiting from Respondent’s damages caused directly by Petitioner. From causing property and structural damages to premeditated and orchestrated second-degree criminal trespass against Respondent twice, Petitioner has repetitively violated Respondent without regard to the law and at Respondent’s expense. 58. Petitioner mischaracterizes Respondent’s tort action against Petitioner’s team by failing to mention negligence, nuisance, structural and property damages. The sidewalk sheds are one of many claims against the team. See, Exhibits C, ¶59 and K. 12 12 of 29 FILED: QUEENS COUNTY CLERK 11/28/2023 02/02/2023 01:58 07:42 PM INDEX NO. 716902/2023 728373/2021 NYSCEF DOC. NO. 47 82 RECEIVED NYSCEF: 11/28/2023 02/02/2023 THE INSTANT APPLICATION HAS NO LEGAL BASIS: I. VALID CONTRACT: GOOD FAITH, ARM’S LENGTH, NEGOTIATED BETWEEN LAWYERS 59. The subject License Agreement is a valid and enforceable contract. The terms are clear and unambiguous in their plain language and were negotiated, in good faith, at arm’s length, by and between sophisticated, counseled parties, with equal bargaining power. Moreover, the Agreement, as a whole, does not, in any manner, violate any weighty public policy interest such as would outweigh the strong public policy in favor of freedom of contract. 159 MP Corp. v. Redbridge Bedford, LLC, 160 A.D.3d 176 (2nd Dept. 2018) (Court enforced waiver clause for declaratory judgment in a landlord-tenant lease; not against public policy; freedom of contract). 60. It is well settled that absent a violation of law or some transgression of public policy, people are free to enter into contracts, making whatever agreement they wish no matter how unwise they may seem to others, and there is no reason to relieve them of the consequences of their bargain, even if it becomes a burdensome bargain. Rowe v Great Atlantic & Pacific Tea Company, Inc., 46 N.Y.2d 62 (1978); Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685 (1995); Backer Mgt. Corp. v. Acme Quilting, 46 N.Y.2d 211 (N.Y. 1978). Consequently, when a contract dispute arises, it is the Court’s role to enforce the agreement rather than to reform it. Grace v. Nappa, 46 N.Y.2d 560 (1979). When a Court invalidates a contractual provision, one party is deprived of the benefit of the bargain. Rowe v. Great Atl. & Pac. Tea Co., 46 N.Y.2d 62 (N.Y. 1978). By disfavoring judicial upending of the b