Motion for Writ in Kpl Green Llc v. Greenport Hudson Associates Llc, Morgenstern Devoesick Pllc, Crazy Beer World Inc| Trellis.Law

On February 10, 2023 a Exhibit,Appendix was filed involving a dispute between Kpl Green Llc, and Crazy Beer World Inc, Crazy Beer World, Inc., Greenport Hudson Associates Llc, Morgenstern Devoesick Pllc, Morgenstern Devoesick Pllc, As Escrow Agent, for Commercial - Contract in the District Court of Rockland County.

Preview
FILED: ROCKLAND COUNTY CLERK 01/17/2024 04:39 PM INDEX NO. 030709/2023
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Ostrander Exhibit A
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NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 01/17/2024
FILED: ROCKLAND COUNTY CLERK 02/10/2023 12:33 PM] INDEX NO. 030709/20)1
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/10/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
X
KPL GREEN LLC,
Index No.

Plaintiff, Date Purchased:

-against- Plaintiff designates
ROCKLAND COUNTY
as place of trial
GREENPORT HUDSON ASSOCIATES. LLC,
MORGENSTERN DEVOESICK, PLLC, and
as Escrow Agent, and CRAZY BEER WORLD, INC., The basis of venue is a forum
selection clause

SUMMONS
Defendant.
X
TO THE ABOVE-NAMED DEFENDANTS:

YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve
a copy of your answer, or if the complaint is not served with this summons, to serve a Notice of
Appearance, on the Plaintiff's Attorney(s) within 20 days after the service of this Summons,
exclusive of the day of service or within 30 days after the service is complete if this summons is
not personally delivered to you within the State of New York; and in case of your failure to
appear or answer, judgment will be taken against you by default for the relief demanded in the
complaint.
ROCKLAND COUNTY is designated as the place of trial on the basis of a Comm
selection clause.
Dated: Nanuet, New York
February 10, 2023 Yours, etc.,

CONDON PAXOS PLLC

By: gui2m-- eevuhvg..-
Brian K. Condon
Attorneys for Plaintiff
55 Old Turnpike Road, Suite 502
Nanuet, New York 10954
(845) 627-8500
Brian@CondonPaxos.com

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To: GREENPORTr HUDSON ASSOCIATES, LLC
40 Office Park Way
Pittsford, NY 14534

Jeffrey F. DeVoesick, Esq.
Morgenstern DeVoesick PLLC
1000 Pittsford Victor Road
Pittsford, New York 14534

Crazy Beer World, Inc.
70 Coons Road
Troy, NY 12180

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
X
KPL GREEN LLC,
Plaintiff; Index No.:
-against-
GREENPORT/ HUDSON ASSOCIATES LLC,
MORGENSTERN DeVOESICK PLLC VERIFIED COMPLAINT
as Escrow Agent, and CRAZY BEER
WORLD, INC.

Defendants.
X

Plaintiff, KPL GREEN LLC ("Green" or "Plaintiff"), complaining of the Defendants,

GREENPORT./HUDSON ASSOCIATES LLC ("Greenport"), MORGENSTERN DEVOESICK

PLLC, as Escrow Agent ("MD" or "Counsel"), and CRAZY BEER WORLD, INC. ("Beer

World") (collectively "Defendants"), by their attorneys, CONDON PAXOS PLLC alleges as

follows:

THE PARTIES

1. Plaintiff, Green, is a domestic limited liability company organized and existing

under the laws of the State of New York, with a mailing address of P.O. Box 170 East Station

Yonkers, NY 10704.

2. Defendant MD is a professional service limited liability company organized and

existing under the laws of the State of New York with its principal post office address of 1080

Pittsford-Victor Road, Pittsford, NY 14534.

3. Defendant Beer World is a domestic business corporation organized and existing

under the law of the State of New York with a principal post office address of 239 Ulster Avenue,

Apartment 2, Saugerties, NY 12477.

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JURISDICTION AND VENUE

4. Jurisdiction is proper because Defendants reside in New York, this action arises out

of a transaction of business in New York and the property at issue is in New York.

5. Venue is proper in Rockland County as the contract of sale has a choice of law

provision identifying Rockland County as the proper Venue.

FACTUAL ALLEGATIONS

6. In and around June 2022, Green entered into a contract of sale with Greenport (the

"Contract of Sale") for the purchase of real property located at 300 Fairview Avenue, Hudson, NY

(the "Premises"). A copy of the Contract of Sale annexed hereto as Exhibit A.

7. The Premises is a single-story commercial shopping plaza with fifteen (15)

commercial tenants.

8. At the time the Contract of Sale was executed, Greenport had entered into a new

lease agreement with a new potential tenant, Beer World, which contained a liquor licensing

contingency ("Beer World Lease"). See a copy of the Beer World Lease annexed hereto as Exhibit

9. The liquor license contingency granted Beer World, "120 days to move its existing

New York State SLA license to the Premises" (the "Liquor License Contingency"). See Exhibit

10. The Contract of Sale established that the purchase price for the Premises was

calculated to include the final execution and removal the Liquor License Contingency.

Specifically, that "Seller represents that the NOI of 5536,290, set forth below, is based upon the

final execution." See Exhibit A, Paragraph 2.

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1 1. The Contract of Sale further established that, "if the Beer Lease is not fully executed

without contingencies, the loss of revenues will cause a reduction in the Premises' NOI by S52,621,

as is set forth below.

With Tenant Without Tenant DELTA
NOI S536,290 5483,669 S52,621
Cap Rate 9.08966% 9.08966% 0%
Price S5,900,000 S5,321,090 S578,910

See Exhibit A.

12. At the time of the execution of the Contract of Sale between Green and Greenport,

the Liquor License Contingency had not yet been satisfied, cleared, removed nor waived and could

surpass the anticipated Closing Date and, more importantly, cause a reduction in the Premises'

NOI.

13. As such, the respective parties agreed both orally and in writing that, "the end date

of several contingencies set forth in the Beer Lease (including, but not limited to, the liquor license

contingencies) may exceed the anticipated Closing Date," as such, "At Closing, S578,910.00 of

the Purchase Price shall be escrowed (the "Escrow Fund") with Seller's attorneys as Escrow Agent

pending Seller's execution of the proposed lease ("Beer Lease")." See Exhibit A.

14. In fact, pursuant to the written Contract of Sale, the Escrow Agent for the Premises

was required to continue, "to hold the Escrow Fund until such date as the Beer Lease is executed

and all contingencies are cleared, satisfied, waived or removed or the Beer Lease is canceled." See

Exhibit A.

15. Thereafter, on or about October 5, 2022, Greenport and Beer World entered into a

written amendment whereby the Liquor License Contingency was extended up to and through

December 31, 2022 ("Beer World Amendment"). A copy of the Beer World Amendment annexed

hereto as Exhibit C.

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16. On or about November 8, 2022, the closing for the Premises took place and there

was a transfer of ownership of the Premises from Greenport to Green (the "Closing Date").

17. As of the Closing Date, multiple tenant estoppel certificates ("TEC") and

subordination and non-disclosure agreements ("SDNA") had not been executed.

18. Pursuant to the Contract of Sale, Green and Greenport agreed to a thirty-day

extension past closing for Greenport to secure and turnover fully executed TECs and SDNAs as to

all tenants. See Exhibit A, Paragraph 7(L).

19. Notably, as of the Closing Date, the Liquor License Contingency had still not yet

been cleared, satisfied, waived nor removed.

20. On November 9 111 and 10th of 2022, a paralegal from Defendant MD's office sent

an email to Lena E. Paxos, Esq. ("Paxos"), counsel for Green, regarding the outstanding TECs and

SDNAs. A copy of the email exchange annexed hereto as Exhibit D.

21 . In fact, attached to the email exchange, Exhibit D, was a proposed TEC and SDNA

for Defendant MD to send to Beer World.

7 On or about December 30, 2022, Jennifer Monacelli, a paralegal of MD, and Lena

E. Paxos, had a phone call discussing the outstanding TECs and SDNAs wherein Ms. Monacelli,

represented that Jeffrey F. DeVoesick ("DeVoesick"), an attorney for Defendant MD, was

addressing the TECs and SDNAs for Beer World directly and that, "the TECs and SDNAs were

likely fully executed and sitting in DeVoesick's email right now."

23. On January 3, 2023, three (3) days past the expiration of the Liquor License

Contingency, Albert Hrdlicka ("Hrdlicka"), counsel for Beer World, contacted Paxos, counsel for

Green, requesting an extension of the Liquor License Contingency.

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24. On January 18, 2023, Green, through counsel, emailed DeVoesick stating, in

relevant part:

"Pursuant to Paragraph 2, in pertinent part, of the Purchase and Sale agreement between
Greenport/Hudson Associates, LLC and KPL Green LLC for 300 Fairview Avenue, Hudson,
NY:
"At Closing, S578,910.00 of the Purchase Price shall be escrowed (the "Escrow
Fund") with Seller's attorneys as Escrow Agent (Escrow Fund")... Seller
represents that the NOI of S536,290, set forth below, is based upon the final
execution and removal of contingencies of the Beer Lease regarding the 17,000
square feet space...The respective parties have agreed that as the end date
of several contingencies set forth in the Beer Lease (including, but not limited
to, the liquor license contingencies) may exceed the anticipated Closing Date,
the Escrow Agent for the Premises shall continue to hold the Escrow Fund until
such date as the Beer Lease is executed and all contingencies are cleared,
satisfied, waived or removed or the Beer Lease is canceled."

In light of the recent developments with Beer Lease, please provide immediate
proof of the Escrow Fund." A copy of this email is annexed hereto as Exhibit E.

25. Additional written demands were made on January 19, 2023, January 20, 2023, and

January 23, 2023, but DeVoesick and Defendant MD failed to provide any proof that the Escrow

Fund funds were deposited in Defendant MD's escrow account.

26. On January 24, 2023, Hrdlicka, forwarded email exchanges between himself and

DeVoesick, wherein Hrdlicka states, in relevant part, "Sorry, I am going to head out so just in case

the landlord doesn't agree to the extension the tenant reserves their right to cancel the lease since

they have not received the liquor license yet." A copy of that email exchanged annexed hereto as

Exhibit F.

27. On January 24, 2023, counsel for Green sent to Greenport, DeVoesick, Hrdlicka,

and Beer World, via email, First Class Mail and Certified Mail Return Receipt Requested, a written

letter acknowledging and accepting Beer World's termination of the lease.

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28. On January 24, 2023, counsel for Green sent to Greenport and DeVoesick, via

email, First Class Mail and Certified Mail Return Receipt Requested, a written letter demanding

disbursement of the Escrow Fund pursuant to Paragraph 2 of the Contract of Sale.

29. To date, DeVoesick and Defendant MD have failed to provide proof of the Escrow

Fund and, or disburse the same to Green.

30. In fact, DeVoesick further informed Brian K, Condon, Esq. ("Condon"), counsel

for Green, that there were no escrow funds established at Closing relative to the Beer World Lease

thereby absconding his responsibilities as Escrow Agent.

AS AND FOR A FIRST CAUSE OF ACTION
(Breach of Contract as to Greenport/Hudson Associates LLC)

31. Green repeats, reiterates and realleges Paragraphs I through 30 as if fully set forth

herein.

32. Defendant Greenport entered into a Contract of Sale with Green wherein they

agreed to hold S578,910 in Escrow, past the Closing Date, until the Liquor License Contingency

was satisfied, waived, cleared or removed or the Beer Lease was terminated.

33. Pursuant to the Beer World Amendment, the Liquor License Contingency was

extended through December 31, 2022.

34. On January 24, 2023, Green demanded disbursement of the Escrow Fund from MD.

35. On or about January 26, 2023, DeVoesick of Defendant MD represented that no

escrow funds were ever established.

36. Defendant Greenport has breached the Contract of Sale by failing to hold the

S578,910 in escrow until the Liquor License Contingency was either satisfied, cleared, waived

and/or removed or the Beer Lease was terminated.

37. Defendant Greenport has therefore materially and will fully breached the Contract

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of Sale with Green.

38. As a direct and proximate result of Defendant Greenport's breach, Green has been

damaged in an amount to be determined at trial, but an amount no less than 5578,910, in addition

to interest, costs, and legal fees as expressly provided by the Contract of Sale.

AS AND FOR A SECOND CAUSE OF ACTION
(Breach of Fiduciary Duty as Escrow Agent as to Morgenstern DeVoesick PLLC)

39. Green repeats, reiterates and realleges Paragraphs 1 through 38 as if fully set forth

herein.

40. Pursuant to the Contract of Sale, "At Closing, 5578,910.00 of the Purchase Price

shall be escrowed (the "Escrow Fund") with Seller's attorneys as Escrow Agent pending Seller's

execution of the proposed lease ("Beer Lease") with Crazy Beer World, Inc. d/b/a Beer Universe

("Beer Universe")." Emphasis Added.

41. Further that, "The respective parties have agreed that as the end date of several

contingencies set forth in the Beer Lease (including, but not limited to, the liquor license

contingencies) may exceed the anticipated Closing Date, the Escrow Agent for the Premises shall

continue to hold the Escrow Fund until such date as the Beer Lease is executed and all

contingencies are cleared, .yati.slied waived or removed or the Beer Lease is canceled." Emphasis

Added. See Exhibit A.

47. Defendant MD, as Escrow Agent, therefore owed a fiduciary duty to Green to hold

that Escrow Fund, "until such date as the Beer Lease is executed and all contingencies are cleared,

satisfied, waived or removed or the Beer Lease is canceled." See Exhibit A.

43. Despite Green's repeated requests to Defendant MD for proof of the Escrow Fund,

no such proof was ever given to Green nor its counsel.

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44. In fact, Defendant MD confirmed to Green, on January 26, 2023, that no escrow

funds were ever established.

45. Defendant MD has therefore materially and willfully breached its fiduciary duty

with Green.

46. As a result of the aforementioned breach of fiduciary duty by Defendant MD, Green

has been injured, in an amount to be determined at trial, but believed to be no less than S578,910,

in addition to interest, costs, and legal fees as expressly provided by the Contract.

AS AND FOR A THIRD CAUSE OF ACTION
(Declaratory Judgment as to Crazy Beer World, LLC)

47. Green repeats, reiterates and realleges Paragraphs 1 through 46 as if fully set forth

herein.

48. Pursuant to the Beer World Amendment, Beer World had up to and through

December 31, 2022, to satisfy, waive, clear, and/or remove the Liquor License Contingency or

terminate the lease.

49. On or about December 30, 2022, Beer World requested an extension of the Liquor

License Contingency or, alternatively, if consent was not granted reserve "their right to cancel the

lease since they have not received the liquor license yet." See Exhibit F.

50. On January 24, 2023, Green rejected Beer World's request for an extension and

accepted Beer World's cancellation of the contract.

51. By reason of the foregoing, an actual and justiciable controversy exists between the

Green and Defendant Beer World as to the rights and obligations of the parties.

52. Green seeks a judgment in their favor against Defendant Beer World, for a

declaration that the lease agreement between Green and Defendant Beer World is terminated

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effective January 1, 2023, thereby triggering disbursement of the Escrow Fund in the Contract of

Sale.

WHEREFORE, Green respectfully demands judgment against the Defendants, jointly and

severally, as follows:

a. On the First Cause of Action in an amount to be determined at trial, but no less than

S578,910, together with statutory interest, future contractual late charges, reasonable

attorney's fees, costs and disbursements, and such other and further relief as this Court

deems just and proper.

b. On the Second Cause of Action in an amount to be determined at trial, but no less than

S578,910, together with statutory interest, future contractual late charges, reasonable

attorney's fees, costs and disbursements, and such other and further relief as this Court

deems just and proper.

c. On the Third Cause of Action for Declaratory Judgment, for a declaration that the lease

agreement between Green and Defendant Beer World is terminated effective January 1,

2023, thereby triggered disbursement of the Escrow Fund pursuant to the Contract of Sale.

Dated: Nanuet, New York
February 10, 2023
Yours, etc.

CONDON PAXOS PLLC

By: ,e544, -
Brian K. Condon
Attorneys for Plaintiff
55 Old Turnpike Road, Suite 502
Nanuet, New York 10954
(845) 627-8500 (telephone)
(845) 627-8507 (facsimile)
Lena@CondonPaxos.com

To: GREENPORT 'HUDSON ASSOCIATES, LLC
40 Office Park Way

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Pittsford, NY 14534

Jeffrey F. DeVoesick, Esq.
Morgenstern DeVoesick PLLC
1000 Pittsford Victor Road
Pittsford, New York 14534

Crazy Beer World, Inc.
70 Coons Road
Troy, NY 12180

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Exhibit "A"
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CONTRACT FOR THE PURCHASE AND SALE
OF REAL PROPERTY

Maraki Realty Corp, a New York corporation or an entity to be formed, (hereinafter referred to as
"Purchaser") whose address is PO Box 170 East Station, Yonkers, New York 10704, hereby offers to
purchase from Greenport/Hudson Associates, LLC, a New York limited liability company
(hereinafter referred to as "Seller") whose address is 40 Office Park Way, Pitts ford, New York
14534, the property described below for the price and upon the terms and conditions herein set forth.

I. PROPERTY.

Property and Improvements. The premises herein to be conveyed consist of real property
consisting of the following:

Greenport Hudson Plaza, consisting of approximately 1 18,500 +/- square foot of retail sp ace,
on approximately 15.1 1 + acres, and located in Columbia County at 300 Fairview Avenue, Hudson,
New York 12534, and commonly referred to as Tax Account No. 104000 100.-1-21;

as more particularly described in Schedule A attached hereto and made a part hereof. The foregoing
parcel, the goodwill connected with the operation ofthe property and the above referenced ❑ame,as
well as all personal property and equip ment owned by Seller which are contained in and on the real
property are referred to herein as, the "Premises". At Closing, Seller shall assign to Purchaser and
Purchaser shall also assume from Seller all of Seller's rights and obligations under the leases relating
to the Premises.

2. PURCHASE PRICE. The purchase price shall be Five Million Nine Hundred Thousand
Dollars ($5,900,000) ("Purchase Price") payable by Purchaser in cash or certified funds at Closing.

At Closing, $578,910.00 ofthe Purchase Price shall be escrowed (the "Escrow Fund") with
Seller's attorneys as Escrow Agent pending Seller's execution of the proposed lease ("Beer Lease")
with Crazy Beer World, Inc. deb. a Beer Universe ("Beer Universe"). Purchaser reserves its right to
seek an adjustment ofthe Escrow Fund amount prior to the expiration ofthe Due Diligence Period in
order to conduct an independent evaluation of the net operating income ("NOI") both with and
without the Beer Lease.

Seller represents that the NO1 of $536,290, set forth below, is based upon the final execution
and removal of contingencies or the Beer Lease regarding the 17,000 +/- square feet sp ace which the
current tenant, ALDI, is currently occupying but is expected to vacate prior to the delivery date set
forth in the Beer Lease.

Seller further represents that if the Beer Lease is not fully executed without contingencies,
the loss of revenues will cause a reduction in the Premises' NOI by $52,621, as is set forth below.

With Tenant Without Tenant DELTA

NOI S536,290 S483,669 552,621
Cap Rate 9.08966% 9.08966% 0%
Price 55,900,000 S5,321,090 5578,910
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The respective parties have agreed that as the end date of several contingencies set forth in
the Beer Lease (including, but not limited to, the liquor license contingencies) may exceed the
anticipated Closing Date, the Escrow Agent for the Premises shall continue to hold the Escrow Fund
until such date as the Beer Lease is executed and all contingencies are cleared, satisfied, waived or
removed or the Beer Lease is canceled.

Within three (3) days of the Beer Lease not being executed, Seller shall provide Purchaser's
counsel with written notice of the same and, upon Purchaser's receipt olsaid notice, the full amount
of the Escrow Fund shall be remitted to Purchaser's counsel. lithe Escrow Fund is dispersed to
Purchaser as a result of Beer Universe's failure to execute the Beer Lease, or satisfy the
contingencies set forth therein, the Purchaser and/or its affiliates covenant and agree that they shall
have no right to seek any further indemnification or compensation from Seller in excess of the
Escrow Fund.

If the contingencies are satisfied, cleared, waived andior removed and the Beer Lease is
executed, then the full amount of the Escrow Fund shall be transferred to the Seller, upon three (3)
days written notice to Purchaser's counsel, less the monthly rent payments, as set forth in the Beer
Lease, which shall be released to Purchaser in amounts equal to the monthly rent and the four (4)
month construction period (the "Forgiveness Period"). However, should the Beer Lease not be hilly
executed on or before the Closing Date, Seller shall also authorize the release of said monthly rent
payments from the Closing Date up to and through the Forgiveness Period. It being understood and
agreed between Seller and Purchaser that once rent payments are made pursuant to the Beer Lease,
no further monthly payments from the Escrow Fund shall be tendered to Purchaser and the remaining
Escrow Fund shall be released to Seller upon three (3) days written notice to Purchaser.

3. DEPOSIT. Upon execution of this Contract by both parties, Purchaser shall deposit with
Morgenstern DeVoesick PLLC, as escrow agent the sum of Two Hundred Fifty Thousand and
00/100 Dollars ($250,000.00)("Initial Deposit"). Upon expiration ofthe Due Diligence Period, the
Purchaser shall deposit an additional Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00) ("Additional Deposit")(the Initial Deposit and the Additional Deposit collectively the
"Deposit"). The Deposit shall be returned to Purchaser in the event this Contract is terminated in
accordance with the provisions o f this Contract.

4. CLOSING DATE AND PLACE. The transfer of title shall take place at the offices of Ponce
Bank, located at 2244 Westchester Avenue, Bronx, New York, 10462 or by escrow on or about forty-
five (45) days from the expiration of the Due Diligence Period set forth in Paragraph 8 herein (the
"Closing").

5. SEARCH AND SURVEY. Within seven (7) days of the execution of this Contract,Seller
shall deliver to Purchaser any existing surveys, title reports and environmental reports in Seller's
possession. Seller shall deliver to Purchaser or its attorney within twenty-five (25) days of the date
hereof, an abstract oftitle, guaranteed tax and U.S. District Court searches, prepared by an abstract
company duly qualified to do business in the State of New York covering a period of at least sixty
(60) years and beginning with a warranty deed or other source of title reasonably satisfactory to
Purchaser, and searches under the Uniform Commercial Code which shall show a good and
marketable title in fee simple absolute to be vested in Seller, li•ee and clear of all liens and
encumbrances. In the event Purchaser obtains an updated Survey of the Premises, such Survey shall
be at Purchaser's sole expense.

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FILED: ROCKLAND COUNTY CLERK 01/17/2024 04:39 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 01/17/2024
FILED: ROCKLAND COUNTY CLERK 02/10/2023 12:33 PH INDEX NO. 030709 , 2023
NYSCEF HOC. NO. 2 RECEIVED NYSCEF: 02/10 , 2023

6. MARKETABILITY OF TITLE. In the event Purchaser shall raise written objections to
Seller's title within twenty (20) days after the expiration of the Due Diligence Period, as to any matter
which renders the title to the Premises unmarketable, except for matters accepted according to the
terms of the Contract, Purchaser shall have the right to cancel this Contract by giving written notice
of such cancellation to Seller upon which all liability of both parties by reason of this Contract shall
cease, provided, however, if Seller shall be able to cure the objection prior to the date set for Closing
herein, or if either party obtains a commitment for title insurance at standard rates in face amount
equal to the Purchase Price, to insure marketability of title against the objections raised, or such other
title insurance as is acceptable to Purchaser, this Contract shall remain and continue in full force and
effect. Notwithstanding anyth ing else contained herein, if Seller cannot convey title in accordance
with this Contract, this Contract shall be null and void, and neither party shall have further liability to
the other hereunder.

7. CLOSING DOCUMENTS. At the time of Closing, Seller shall deliver all certificates and
documents set forth in this Contract including but not limited to the following:

A. A Warranty Deed with Lien Covenants properly executed so as to convey title as
required by this Contract.

B. A Warranty Bill of Sale for the personal property conveying same free and clear of
all liens and encumbrances.

C. To the extent that they are in Seller's possession and not posted on the Premises,
architectural, mechanical and electrical plans and specifications, certificates, licenses, permits,
authorizations and approvals issued for or with respect to the Premises by governmental and quasi-
governmental authorities having jurisdiction.

D. An assignment of all guarantees and warranties which Seller may have for any part of
the Premises, including the buildings (i.e. guaranty for roof, air conditioner, furnace, etc.) and the
Seller shall also physically deliver all warranties to Purchaser.

E. Such affidavits as Purchaser, Purchaser's title insurance company or lender shall
reasonably require in order to omit from its title policy all exceptions for judgments, bankruptcies or
other returns against persons or entities whose names are the same or similar to Seller's name.

F. An Assipment and Assumption of all Leases for the Premises. Purchaser shall
assume all of landlord's obligations under the leases listed on Schedule C relating to the period
commencing on and following the Closing, including the obligation to refund those security and
other deposits of tenants of the Premises, but only to the extent such security and other deposits arc
paid over and delivered to Purchaser at the Closing. At Closing, Seller shall receive a credit against
Purchase Price equal to the amount of all cash (or cash equivalent) security or other deposits paid by
any of the tenants to secure their respective obligations under the Lease Agreements (collectively
"Security Deposits").

G. A certified rent roll updated through the date of Closing.

H. Copies of the certificate of formation and partnership agreement of Seller (and any
amendment thereto) and of the resolutions of Seller authorizing the execution, delivery and

3
FILED: ROCKLAND COUNTY CLERK 01/17/2024 04:39 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 01/17/2024
FILED: ROCKLAND COUNTY CLERK 02/10/2023 12:33 PM INDEX NO. 030709/2023
NYSCEF HOC. NO. 2 RECEIVED NYSCEF: 02/10/2023

performance of this Agreement and the consummation of the transaction contemplated by this
Agreement certified as true and correct by the authorized partner of Seller, and an incumbency
certificate executed by the authorized partner of Seller with respect to those partners of Seller
executing any documents or instruments in connection with the transactions contemplated herein, all
in form satisfactory to the Title Company.

I. Attornment letters to each tenant under each Lease Agreement in a form to be
prepared by Seller and approved by Purchaser in Purchaser's reasonable discretion along with tenant
estoppel certificates and subordination, non-disturbance, and attornment agreements (the "Tenant
Certificates"), in a form reasonably acceptable to Purchaser and Purchaser's lender. Seller agrees to
use commercially reasonable efforts to secure said Certificates from all tenants. In the event that
Seller cannot secure the Tenant Certificates from a tenant, excluding Big Lots and the Salvation
Army, Seller further agrees to hold an amount equal to the tenant(s) security deposit in escrow for
thirty (30) days and allow Buyer to approach said tenants) to secure Tenant Certificates. If at the
conclusion of thirty (30) days, Buyer does not secure Tenant Certificates then Seller agrees to
provide a Seller's estoppel certificate ("Seller's Affidavit") guaranteeing and swearing to the same
facts as contained in the Tenant Certificates.

J. To the extent in Seller's possession or control and not already located at the Premises,
keys to all entrance doors to, and equipment and utility rooms located at the Premises.

K. Any other items required by this Agreement and not otherwise previously delivered
to Purchaser including documents certifying the accuracy of Seller's representations and warranties
as of the Closing.

8. DUE DILIGENCE. Purchaser shall have a forty-five (45) day due diligence from the date
Seller provides Purchaser with the due diligence materials set forth on Schedule B ("Due Diligence
Period"), to inspect, examine and survey the Premises, conduct tenant interviews and perform
whatever due diligence investigations Purchaser deems necessary to determine that the Premises is
acceptable to Purchaser and whether to proceed with the acquisition of the Premises. Seller shall
furnish Purchaser with the due diligence items requested in Schedule B within seven (7) days alter
the date of the last signature to appear on this Agreement. Purchaser shall have the right to obtain at
its sole cost and expense, a Phase I Environmental Audit of the property during the Due Diligence
Period. In the event such Phase I Audit reveals any areas of concern, Purchaser may conduct a Phase
II Environmental Audit of the Premises. In the event that a Phase II Audit is conducted the Due
Diligence Period shall be extended for an additional sixty (60) days, for the purpose of completing
such Phase II Audit and receiving the report ofthe results of the same. Any and all information
provided to Purchaser or obtained by Purchaser regarding this transaction as well as any and all
inspections performed by Purchaser or Purchaser's agents shall be deemed confidential information.
If Purchaser is dissatisfied with the results of any such inspections or due diligence, in Purchaser's
sole and absolute discretion, Purchaser may elect to terminate this Contract by giving written notice
to the Seller prior to the expiration of the Due Diligence Period and the Deposit shall immediately be
returned to Purchaser. II' Purchaser terminates this Agreement in accordance with the terms of this
Contract, Seller may request copies of the results of all tests, examinations and surveys, if any,
performed by Purchaser during the Due Diligence Period at a cost no greater than the cost incurred
by Purchaser for the performance of such tests, examinations and surveys.

9. ACCESS. Upon execution of this Contract, Purchaser and Purchaser's agents and
contractors shall be allowed to enter upon the Premises at reasonable times and upon prior notice

4
FILED: ROCKLAND COUNTY CLERK 01/17/2024 04:39 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 86

Case Info

Judge

Sherri L Eisenpress Track Judge’s New Case

Case No.

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Document Filed Date

January 17, 2024

Case Filing Date

February 10, 2023

County

Parties

CONDON, BRIAN KEITH Attorney for the Plaintiff
CRAZY BEER WORLD INC Defendant
CRAZY BEER WORLD, INC. Defendant
GRAY, JUSTIN WILLIAM Attorney for the Defendant
GREENPORT HUDSON ASSOCIATES LLC Defendant
GREENPORT/HUDSON ASSOCIATES LLC Defendant
KPL GREEN LLC Plaintiff
MORGENSTERN DeVOESICK PLLC Defendant
MORGENSTERN DeVOESICK PLLC, as Escrow Agent Defendant
OSTRANDER, FRANCIS MICHAEL Attorney for the Defendant
RICKERSHAUSER, STEPHEN G. Attorney for the Defendant
ROSENBAUM, WARREN B Attorney for the Defendant
SPIEGEL, JEFFREY YEHUDA ARIA Attorney for the Defendant
LENA PAXOS Attorney
Jeffrey DeVoesick Attorney
ALBERT HRDLICKA Attorney

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Exhibit,Appendix: Kpl Green Llc v. Greenport Hudson Associates Llc, Morgenstern Devoesick Pllc, Crazy Beer World Inc

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