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FILED: ROCKLAND COUNTY CLERK 12/29/2023 04:42 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/29/2023
EXHIBIT A
FILED: ROCKLAND COUNTY CLERK 12/29/2023
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NYSCEF DOC. NO. 66
1 RECEIVED NYSCEF: 12/29/2023
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
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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.
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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 forum
selection clause.
Dated: Nanuet, New York
February 10, 2023 Yours, etc.,
CONDON PAXOS PLLC
By: ______________________________
Brian K. Condon
Attorneys for Plaintiff
55 Old Turnpike Road, Suite 502
Nanuet, New York 10954
(845) 627-8500
Brian@CondonPaxos.com
1
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To: GREENPORT/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
2
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
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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. :
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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
B.
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
B.
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 $536,290, set forth below, is based upon the
final execution.” See Exhibit A, Paragraph 2.
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11. 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 $52,621,
as is set forth below.
With Tenant Without Tenant DELTA
NOI $536,290 $483,669 $52,621
Cap Rate 9.08966% 9.08966% 0%
Price $5,900,000 $5,321,090 $578,910
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, $578,910.00 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(I).
19. Notably, as of the Closing Date, the Liquor License Contingency had still not yet
been cleared, satisfied, waived nor removed.
20. On November 9th 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.
22. 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, $578,910.00 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 $536,290, 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 1 through 30 as if fully set forth
herein.
32. Defendant Greenport entered into a Contract of Sale with Green wherein they
agreed to hold $578,910 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
$578,910 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 willfully 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 $578,910, 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, $578,910.00 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, satisfied, waived or removed or the Beer Lease is canceled.” Emphasis
Added. See Exhibit A.
42. 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 $578,910,
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
$578,910, 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
$578,910, 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:_____________________________
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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Preview
FILED: ROCKLAND COUNTY CLERK 12/29/2023 04:42 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/29/2023 EXHIBIT A FILED: ROCKLAND COUNTY CLERK 12/29/2023 02/10/2023 04:42 12:33 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 66 1 RECEIVED NYSCEF: 12/29/2023 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 forum selection clause. Dated: Nanuet, New York February 10, 2023 Yours, etc., CONDON PAXOS PLLC By: ______________________________ Brian K. Condon Attorneys for Plaintiff 55 Old Turnpike Road, Suite 502 Nanuet, New York 10954 (845) 627-8500 Brian@CondonPaxos.com 1 1 of 12 FILED: ROCKLAND COUNTY CLERK 12/29/2023 02/10/2023 04:42 12:33 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 66 1 RECEIVED NYSCEF: 12/29/2023 02/10/2023 To: GREENPORT/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 2 2 of 12 FILED: ROCKLAND COUNTY CLERK 12/29/2023 02/10/2023 04:42 12:33 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 66 1 RECEIVED NYSCEF: 12/29/2023 02/10/2023 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. 3 of 12 FILED: ROCKLAND COUNTY CLERK 12/29/2023 02/10/2023 04:42 12:33 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 66 1 RECEIVED NYSCEF: 12/29/2023 02/10/2023 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 B. 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 B. 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 $536,290, set forth below, is based upon the final execution.” See Exhibit A, Paragraph 2. 4 of 12 FILED: ROCKLAND COUNTY CLERK 12/29/2023 02/10/2023 04:42 12:33 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 66 1 RECEIVED NYSCEF: 12/29/2023 02/10/2023 11. 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 $52,621, as is set forth below. With Tenant Without Tenant DELTA NOI $536,290 $483,669 $52,621 Cap Rate 9.08966% 9.08966% 0% Price $5,900,000 $5,321,090 $578,910 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, $578,910.00 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. 5 of 12 FILED: ROCKLAND COUNTY CLERK 12/29/2023 02/10/2023 04:42 12:33 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 66 1 RECEIVED NYSCEF: 12/29/2023 02/10/2023 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(I). 19. Notably, as of the Closing Date, the Liquor License Contingency had still not yet been cleared, satisfied, waived nor removed. 20. On November 9th 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. 22. 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. 6 of 12 FILED: ROCKLAND COUNTY CLERK 12/29/2023 02/10/2023 04:42 12:33 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 66 1 RECEIVED NYSCEF: 12/29/2023 02/10/2023 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, $578,910.00 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 $536,290, 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. 7 of 12 FILED: ROCKLAND COUNTY CLERK 12/29/2023 02/10/2023 04:42 12:33 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 66 1 RECEIVED NYSCEF: 12/29/2023 02/10/2023 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 1 through 30 as if fully set forth herein. 32. Defendant Greenport entered into a Contract of Sale with Green wherein they agreed to hold $578,910 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 $578,910 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 willfully breached the Contract 8 of 12 FILED: ROCKLAND COUNTY CLERK 12/29/2023 02/10/2023 04:42 12:33 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 66 1 RECEIVED NYSCEF: 12/29/2023 02/10/2023 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 $578,910, 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, $578,910.00 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, satisfied, waived or removed or the Beer Lease is canceled.” Emphasis Added. See Exhibit A. 42. 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. 9 of 12 FILED: ROCKLAND COUNTY CLERK 12/29/2023 02/10/2023 04:42 12:33 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 66 1 RECEIVED NYSCEF: 12/29/2023 02/10/2023 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 $578,910, 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 10 of 12 FILED: ROCKLAND COUNTY CLERK 12/29/2023 02/10/2023 04:42 12:33 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 66 1 RECEIVED NYSCEF: 12/29/2023 02/10/2023 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 $578,910, 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 $578,910, 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:_____________________________ 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 11 of 12 FILED: ROCKLAND COUNTY CLERK 12/29/2023 02/10/2023 04:42 12:33 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 66 1 RECEIVED NYSCEF: 12/29/2023 02/10/2023 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 12 of 12