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FILED: KINGS COUNTY CLERK 03/12/2024 03:01 PM INDEX NO. 507141/2024
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/13/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
BP GROUP DE, LLC, BP BRONX TIC, LLC, and
MARK CALLER, individually and derivatively on Index. No. 507141/2024
behalf of BP GROUP DE, LLC and BP BRONX TIC,
LLC,
Plaintiffs,
-against- AFFIRMATION OF
ALEXANDER G. MALYSHEV
ROBERT KODSI, and ISDOK, LLC,
Defendants.
ALEXANDER G. MALYSHEV, pursuant to CPLR 2106, deposes and says that the
following is true and correct under penalty of perjury:
1. I am a partner at the law firm of Carter Ledyard & Milburn LLP, counsel to Mark
Caller (“Caller”) on behalf of BP Group DE, LLC (“BP Group”) and BP Bronx TIC, LLC (“BP
TIC”) (“Plaintiffs”). I submit this affirmation in support of Plaintiffs’ Order to Show Cause, with
Temporary Restraints, pursuant to CPLR 6301, seeking an order requiring Defendants ISDOK,
LLC (“ISDOK”) and Robert Kodsi (“Kodsi”) to consent to a lease with non-party The Inspired
Community Project, Inc. (“TICP”), which consent has been unreasonably withheld in bad faith
(the “Motion”)
2. Plaintiffs move by Order to Show Cause because of the highly time sensitive nature
of this Motion because the current extension BP TIC obtained from TICP to secure Kodsi’s consent
to the lease expires on April 9, 2024.
3. Temporary restraints are sought pending the Motion because Kodsi, through his
previous conduct, has demonstrated a willingness to harm the interests of BP TIC and its interests
in other properties comprising the redevelopment project. Moreover, to secure the lease with TICP
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Caller is required to undertake certain actions to get the space ready for a lease.
4. On January 30, 2024, Kodsi and Caller had a members meeting for BP TIC and BP
Group to consider the lease. Counsel for Kodsi and Caller, including the undersigned, were
present. A copy of the minutes is submitted with the accompanying affirmation of Mark Caller.
5. Kodsi requested certain information as a condition of approving the lease, which
information was transmitted to his counsel via e-mail. A true and correct copy of the January 31,
2024, e-mail (without exhibits) is annexed hereto as Exhibit A.
6. The following day, February 1, 2024, counsel for Kodsi (Michael Gurland), asked
for further information that was promptly provided. A true and accurate copy of that e-mail
(without exhibits) is annexed hereto as Exhibit B.
7. Subsequently, I communicated with Kodsi’s real-estate counsel (Richard Wright)
about the new condition Kodsi raised after the meeting – relating to the priority of Kodsi loan to
the Rester loan. Those communications initially included a telephone call, and then a follow up
e-mail summarizing that call. A copy of that e-mail exchange is annexed hereto as Exhibit C.
8. On February 12, 2024, I transmitted a letter to Kodsi’s counsel with respect to this
dispute, advising them that BP TIC would be proceeding with the lease as Kodsi never objected to
the same. A copy of that letter (which was annexed to the e-mail exchange in Exhibit C) is annexed
hereto as Exhibit D.
9. Subsequent to that letter, neither Kodsi nor his counsel objected to the terms of
the lease, or the tenant. Nevertheless, Kodsi has not responded to the February 12 letter, or
provided his consent.
10. I submit this affirmation in accordance with 22 NYCRR 202.7(f). Annexed
hereto as Exhibit E is a copy of an e-mail exchange with Matthew Brett, who has appeared in
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this case on behalf of all of the Defendants.
11. In accordance with Rule 202.7(f), Mr. Brett was provided with a copy of all papers,
and was advised that we would be appearing on “March 14, 2024, at 10:00 a.m. … at 360 Adams
Street, Brooklyn NY - Part 72, Room 295” to submit the Order to Show Cause with Temporary
Restraints. The e-mail was sent at 4:54 p.m. on March 13, 2024, which, in compliance with Kings
County Commercial Division Rule 21 is “at least six hours in advance of submission to the
court[.]”
12. No prior application for the relief requested herein has been made.
I affirm this 13th day of March, 2024, under the penalties of perjury under the laws of New
York, which may include a fine or imprisonment, that the foregoing is true, and I understand that
this document may be filed in an action or proceeding in a court of law.
______________________________
Alexander G. Malyshev
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CERTIFICATION OF WORD COUNT
I hereby certify that the word count of the foregoing complies with the word limits of
Commercial Division Rule 17. According to the word processing system used to prepare this
affirmation, the total word count for all printed text exclusive of the material omitted under
Commercial Division Rule 17 is 670 words.
Dated: New York, New York
March 13, 2024
__________________________
Alexander G. Malyshev
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Preview
FILED: KINGS COUNTY CLERK 03/12/2024 03:01 PM INDEX NO. 507141/2024 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/13/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK BP GROUP DE, LLC, BP BRONX TIC, LLC, and MARK CALLER, individually and derivatively on Index. No. 507141/2024 behalf of BP GROUP DE, LLC and BP BRONX TIC, LLC, Plaintiffs, -against- AFFIRMATION OF ALEXANDER G. MALYSHEV ROBERT KODSI, and ISDOK, LLC, Defendants. ALEXANDER G. MALYSHEV, pursuant to CPLR 2106, deposes and says that the following is true and correct under penalty of perjury: 1. I am a partner at the law firm of Carter Ledyard & Milburn LLP, counsel to Mark Caller (“Caller”) on behalf of BP Group DE, LLC (“BP Group”) and BP Bronx TIC, LLC (“BP TIC”) (“Plaintiffs”). I submit this affirmation in support of Plaintiffs’ Order to Show Cause, with Temporary Restraints, pursuant to CPLR 6301, seeking an order requiring Defendants ISDOK, LLC (“ISDOK”) and Robert Kodsi (“Kodsi”) to consent to a lease with non-party The Inspired Community Project, Inc. (“TICP”), which consent has been unreasonably withheld in bad faith (the “Motion”) 2. Plaintiffs move by Order to Show Cause because of the highly time sensitive nature of this Motion because the current extension BP TIC obtained from TICP to secure Kodsi’s consent to the lease expires on April 9, 2024. 3. Temporary restraints are sought pending the Motion because Kodsi, through his previous conduct, has demonstrated a willingness to harm the interests of BP TIC and its interests in other properties comprising the redevelopment project. Moreover, to secure the lease with TICP 1 11278109.2 1 of 4 FILED: KINGS COUNTY CLERK 03/12/2024 03:01 PM INDEX NO. 507141/2024 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/13/2024 Caller is required to undertake certain actions to get the space ready for a lease. 4. On January 30, 2024, Kodsi and Caller had a members meeting for BP TIC and BP Group to consider the lease. Counsel for Kodsi and Caller, including the undersigned, were present. A copy of the minutes is submitted with the accompanying affirmation of Mark Caller. 5. Kodsi requested certain information as a condition of approving the lease, which information was transmitted to his counsel via e-mail. A true and correct copy of the January 31, 2024, e-mail (without exhibits) is annexed hereto as Exhibit A. 6. The following day, February 1, 2024, counsel for Kodsi (Michael Gurland), asked for further information that was promptly provided. A true and accurate copy of that e-mail (without exhibits) is annexed hereto as Exhibit B. 7. Subsequently, I communicated with Kodsi’s real-estate counsel (Richard Wright) about the new condition Kodsi raised after the meeting – relating to the priority of Kodsi loan to the Rester loan. Those communications initially included a telephone call, and then a follow up e-mail summarizing that call. A copy of that e-mail exchange is annexed hereto as Exhibit C. 8. On February 12, 2024, I transmitted a letter to Kodsi’s counsel with respect to this dispute, advising them that BP TIC would be proceeding with the lease as Kodsi never objected to the same. A copy of that letter (which was annexed to the e-mail exchange in Exhibit C) is annexed hereto as Exhibit D. 9. Subsequent to that letter, neither Kodsi nor his counsel objected to the terms of the lease, or the tenant. Nevertheless, Kodsi has not responded to the February 12 letter, or provided his consent. 10. I submit this affirmation in accordance with 22 NYCRR 202.7(f). Annexed hereto as Exhibit E is a copy of an e-mail exchange with Matthew Brett, who has appeared in 2 11278109.2 2 of 4 FILED: KINGS COUNTY CLERK 03/12/2024 03:01 PM INDEX NO. 507141/2024 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/13/2024 this case on behalf of all of the Defendants. 11. In accordance with Rule 202.7(f), Mr. Brett was provided with a copy of all papers, and was advised that we would be appearing on “March 14, 2024, at 10:00 a.m. … at 360 Adams Street, Brooklyn NY - Part 72, Room 295” to submit the Order to Show Cause with Temporary Restraints. The e-mail was sent at 4:54 p.m. on March 13, 2024, which, in compliance with Kings County Commercial Division Rule 21 is “at least six hours in advance of submission to the court[.]” 12. No prior application for the relief requested herein has been made. I affirm this 13th day of March, 2024, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law. ______________________________ Alexander G. Malyshev 3 11278109.2 3 of 4 FILED: KINGS COUNTY CLERK 03/12/2024 03:01 PM INDEX NO. 507141/2024 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/13/2024 CERTIFICATION OF WORD COUNT I hereby certify that the word count of the foregoing complies with the word limits of Commercial Division Rule 17. According to the word processing system used to prepare this affirmation, the total word count for all printed text exclusive of the material omitted under Commercial Division Rule 17 is 670 words. Dated: New York, New York March 13, 2024 __________________________ Alexander G. Malyshev 4 11278109.2 4 of 4