Preview
FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
---------------------________Ç
HAUPPAUGE PROPERTIES, LLC, Index No.:
Plaintiff,
-- against -
HAUPPAUGE ASSOCIATES, LLC, SUMMONS
Defendant. Plaintiff designates Suffolk
X County as the place for trial.*
TO THE ABOVE NAMED DEFENDANT:
YOU ARE HERBY SUMMONED to answer the attached 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 Plaintiffs 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 with the State of New York); and in case of your failure to appear
to answer, judgment will be taken against you by default for the relief demanded in the Verified
Complaint.
Dated: New York, New York
March 25, 2024
GOLDBERG WEPRIN FINKEL
GOLDSTEIN LLP
By:
By: a ew Ï-I le
Attorneys for Plaintiff
- 12th
125 Park Avenue FlOOr
New York, New York 10017
(212) 221-5700
1 of 13
FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024
To: Hauppauge Associates, LLC
c/o Pergament Properties
95 Forehlich Farm Boulevard
Woodbury, New York 11797
* of venue:
The basis Judgment demanded would affect the title to, or the
possession, use or enjoyment of real property located in Suffolk County.
2 of 13
FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
--------- ---- --------------X
HAUPPAUGE PROPERTIES, LLC, Index No.:
Plaintiff,
-- against -
HAUPPAUGE ASSOCIATES, LLC, COMPLAINT
Defendant.
-----------------------------------------Ç
Plaintiff, Hauppauge Properties, LLC ("Plaintiff"), through its attorneys, Goldberg
Weprin Finkel Goldstein, LLP, as and for its complaint against defendant, Hauppauge
Associates, LLC ("Defendant"), as and for its complaint, respectfully alleges as follows:
1. This is an action seeking a declaratory judgment that Plaintiff is not in breach of
its lease with Defendant and is not vulnerable to termination of its lease, as Defendant has
threatened.
"Yellowstone"
2. Submitted in conjunction with this complaint is an application for a
injunction seeking a temporary restraining order and preliminary injunction against Defendant
from seeking to enforce or otherwise act on its wrongful and illegal threat to terminate Plaintiff's
valuable, long-term, commercial lease as set forth in Defendant's Notice to Cure dated December
22, 2023 ("First Notice to Cure") and Defendant's Notice to Cure dated February 20, 2024
("Second Notice to Cure").
3. Defendant has threatened to terminate Plaintiff's lease upon the false allegation that
Events of Default have occurred under the Lease before this Court has the opportunity to hear this
case and determine that, in fact, Defendant has no legitimate basis for declaring existence of a
-1-
3 of 13
FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024
default under the Lease (as hereinafter defined) based on purported violations issued on a portion
of the demised premises, with respect to the First Notice to Cure, or the alleged property
conditions, with respect to the Second Notice to Cure.
4. Plaintiff only learned of these alleged violations via the First Notice to Cure and
upon doing so immediately issued notice to its sub-tenant, Eden Resort & Spa ("Eden"), which is
responsible for any such violations, demanding it address, remedy and cause such violations to be
discharged. Eden advised Plaintiff that it was addressing the violations and the court date for
disposition of the violations was scheduled for March 12, 2024. Plaintiff was told that the
conditions leading to issuance of the violations are or will be remedied by that date.
5. Subsequently, Plaintiff was advised that while many issues identified as Defendant
as alleged bases for asserting a default under the Lease have been cured, inspections of some have
been delayed and the court date consequently has been adjourned.
6. Despite the efforts made to address the issues identified by Defendant in its First
Notice to Cure and the reasonableness of the time needed to fully resolve them, Defendant has not
withdrawn its First Notice to Cure or its wrongful threat to Plaintiff's leasehold.
7. Since the remedying of the violations reasonably has and will take longer than the
30 days provided by Defendant (and the Lease), by the express terms of the Lease, their existence
Default"
does not constitute an "Event of and, as such, Defendant was wrong to declare Plaintiff
to be in default or to be threatening termination of its Lease if not cured by Defendant's deadline.
8. By the same token, the conditions set forth in the Second Notice to Cure cannot
reasonably be reviewed, considered, analyzed and, if necessary, addressed or cured within the 30
days set forth in the Second Notice to Cure.
-2-
4 of 13
FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024
9. Thus, under the terms of the Lease, while Plaintiff is diligently undertaking the
steps necessary to determine whether the conditions actually are as alleged and to cure the
conditions that might need to be cured, no Event of Default can be declared and Plaintiff s Lease
should not be under threat.
10. This action seeks a declaratory judgment to that effect, thereby preserving
Plaintiff's valuable, long term, commercial lease.
PARTIES
11. Plaintiff is a New York limited liability company with an address of 1975
Hempstead Turnpike, Suite 309, East Meadow, New York 11554.
12. Upon information and belief, Defendant is a New York limited liability company
with an address c/o Pergament Properties, 95 Froehlich Farm Boulevard, Woodbury, New York
11797.
FACTUAL BACKGROUND
The Lease and the Prior Litigation
13. Defendant is the owner of real property known as 573-603 Nesconset Highway,
Hauppauge, New York (the "Premises").
14. Plaintiff is the current tenant and Defendant is the current landlord under a long-
term ground lease ("Lease") for a Premises. A copy of the Lease is annexed hereto as Exhibit
"A". The Premises consist of a shopping center. One of Plaintiff s sub-tenants is Eden.
15. In Spring 2023, Plaintiff exercised its right to renew the Lease for a new 25-year
term. Under the Lease, the rent for the renewal term is to be determined in accordance with an
"arbitration"
(appraisal) process. A dispute over the arbitration-appraisal process arose between
-3-
5 of 13
FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024
Plaintiff and Defendant and that dispute is currently being litigated before this Court (Hauppause
Properties, LLC v. Hauppauge Associates LLC, Suffolk Cty. Index No.: 626619/23 (the "First
Action")).
16. Shortly after Defendant learned that Plaintiff had commenced the First Action and
was seeking a preliminary injunction in that action, Defendant issued the Notice to Cure giving
rise to assumption that Defendant is seeking retribution against Plaintiff for enforcing its rights
under the Lease.
The First Notice to Cure
17. The First Notice to Cure asserts that Plaintiff is in default due to the existence of
certain violations issued by the Town of Smithtown. In pertinent part, the First Notice to Cure
provides:
[Y]ou are presently in default of your obligations as Tenant under
the Lease in that you have violated your Lease inclusive of
Articles 9, 10, and 12 by causing and/or permitting numerous fire
and safety code violations at the Premises for which the tenant is
directly liable and responsible, resulting in the Town of
Smithtown's issuance of twenty-six (26) fire and life safety
summons on or about June 21, 2023 ...
A copy of the First Notice to Cure is annexed hereto as Exhibit "B". Emphasis in original.
18. The First Notice to Cure was accompanied by a copy of the "(Unofficial) Incident
Report"
issued by the Smithtown Public Safety Department which indicated that the violations
Spa."
were discovered during a "fire and safety inspection at the Eden Resort & S_ee_Exhibit "B".
19. Until Plaintiff received the First Notice to Cure, Plaintiff was unaware of the
violations referenced (or any violations).
-4-
6 of 13
FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024
20. The First Notice to Cure gave Plaintiff until January 26, 2024 to cure the alleged
defaults relating to the violations.
21. The January 26, 2024 deadline was extended through March 29, 2024.
Plaintiff's Response to the First Notice to Cure
22. Immediately upon learning of the violations, Plaintiff served notice on Eden to
lions'
address the violations (the share of which were and are Eden's responsibility). A copy of
the notice to cure served on Eden is annexed hereto as Exhibit "C". In response, Eden told
Plaintiff that the conditions identified in the Incident Report had or were being addressed and
rectified and the court date where the violations would be resolved was scheduled for March 12,
2024, which date was subsequently adjourned because inspections of Eden's work were
postponed.
23. There were a few conditions identified in the Incident Report that Plaintiff was
required to address and just weeks after learning of them, Plaintiff hired Gensinger Fire Protection
LLC ("Gensinger") to remedy the conditions. Those conditions were corrected.
The Second Notice to Cure
24. On February 20, 2024, Defendant issued the Second Notice to Cure which cited
Lease,1
Article 10 of the claiming that Plaintiff failed "to keep and maintain, or otherwise cause
1 Article 10 of the Lease provides as follows:
Tenant covenants and agrees that throughout the term of this lease and all
extensions and renewals thereof it shall, at its own cost and expense, keep
and maintain, or cause to be kept and maintained, in good condition and repair,
all portions of the demised premises including, without limitation, all land
areas thereof and all buildings, structures, improvements, and other property
therein, thereon or thereof, whether structural or non-structural, seen or
"repairs"
unforeseen, ordinary or extraordinary, or otherwise. The term as used
herein shall be deemed to also include any replacements that may from time to
-5-
7 of 13
FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024
to be kept and maintained, numerous portions of the demised premises in 'good condition and
repair'
including without limitation, the need for immediate repairs and replacement involving
roof removal and replacement, stormwater retention and drywell repairs and maintenance, parking
maintenance."
lot, sidewalk and asphalt repairs and SEExhibit "D".
25. Accompanying the Second Notice to Cure was the Property Condition Assessment
Report"
dated February 17, 2024 which identified no less than 22 different portions of the demised
Premises that in the estimation of the report's author, Zohaib A. Alvi, P.E., required repair or
replacement with an estimate cost of more than $3.5 million.
26. Defendant's sudden issuance ofthe Second Notice to Cure demanding cure of more
than $3.5 million in repairs within 30 days is absurd on its face because Plaintiff will obviously
have to review it and its findings with its professionals to determine its accuracy and
reasonableness and even if there are even some properly identified repair work required,
contracting for same and then undertaking and completing such work will obviously reasonably
require more than 30 days.
Applicable Lease Provisions
Default"
27. Article 28 of the Lease defines what constitutes an "Event of under the
Lease as well as the rights and remedies of the parties with respect thereto:
The following shall be defined and deemed as an "Event of Default":
* * *
(ii) Any failure of performance or compliance with any of the
covenants, agreements, terms or conditions contained in this
lease other than [non-payment] which shall continue for a
period of thirty (30) days after written notice thereof from
time be necessary.
-6-
8 of 13
FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024
Landlord to Tenant provided, that if Tenant proceeds with due
diligence during such thirty (30) day period to commence to
cure such default and is unable by reason of the nature of the
work involved, to cure the same within the said thirty (30) days,
its time to do so shall be extended for an additional period
required to cure same with reasonable dispatch.
S_ee Exhibit "A".
28. Article 28(b) of the Lease provides in pertinent part, as follows:
In case of any Event of Default as hereinbefore provided the
Landlord shall ... have the immediate right of re-entry and may
remove all persons and property from the demised premises ...
In addition, in any Event of Default .. Landlord shall have the
right, at its option to immediately terminate this lease on ten
(10) days notice to Tenant ...
29. The plain wording of the Lease establishes that an Event of Default for anything
other than non-payment comes into being 30 days after written notice from Landlord without
subsequent cure.
30. Only upon a failure to cure and the creation of an Event of Default does the right to
terminate vest with Defendant.
31. An exception to the foregoing arises where the nature of the alleged default is such
that it cannot be cured within 30 days and, in such circumstances, so long as Plaintiff undertakes
efforts to cure within the time period prescribed, no Event of Default comes into existence.
32. Here, the violations have been or are being diligently addressed (both by Plaintiff
and Eden) but the court appearance in which the violations are to be disposed is not scheduled to
take place until March 12, 2024.
_7_
9 of 13
FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024
33. Moreover, it is possible that administrative removal of the corrected or disposed
violations will likely require municipal inspection and signoff all of which will reasonably take
more than thirty days provided for in the Notice to Cure (as extended).
34. Thus, under the terms of the Lease, while Plaintiff is diligently undertaking the
steps necessary to cure these violations (including ensuring that Eden complete whatever
corrections are required and appearing at any judicial proceedings necessary to discharge the
violations), no Event of Default can be declared and Plaintiff s Lease should not be under threat.
35. The conditions set forth in the Second Notice to Cure cannot reasonably be
reviewed, considered, analyzed and, if necessary, addressed or cured within the 30 days set forth
in the Second Notice to Cure and, therefore, under the terms of the Lease, while Plaintiff is
diligently undertaking the steps necessary to address the alleged defaults, no Event of Default can
be declared and Plaintiff s Lease should not be under threat.
36. The Notices to Cure are defective as a matter of law.
37. The Notices to Cure are defective because it improperly and prematurely
threatens to terminate Plaintiff's Lease when there is no right to do so.
38. The Notices to Cure are defective because they fail to provide Plaintiff with
contractually required cure periods.
39. Since the Notices to Cure are defective, they are unenforceable.
AS AND FOR A FIRST CAUSE OF ACTION
"1"
40. Plaintiff repeats and realleges the allegations set forth in paragraphs through
"39"
above as though set forth at length herein.
-8-
10 of 13
FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024
41. Plaintiff is entitled to judgment pursuant to CPLR §3001 declaring the rights and
remedies of the parties hereto with respect to the Lease and the alleged defaults thereunder,
including, without limitation:
a. that no Event of Default has occurred or will occur upon the expiration of
the 30 day period (as extended) because of the nature of the alleged
defaults and the reasonableness of cure taking longer than 30 days;
b. that the Notices to Cure are invalid and unenforceable because they failed
to afford to Plaintiff the contractually-required notice and cure periods;
c. that Plaintiff is not in default under the Lease and that no "Event of
Default"
exists under the Lease;
e. that Defendant does not have a right to terminate the Lease because of the
alleged defaults set forth in the Notices to Cure;
f. that if, in fact, a default exists, that Plaintiff shall have a reasonable time,
no less than sixty (60) days, to cure same, or continue to undertake to cure
same.
42. The parties dispute the foregoing and there is a justiciable controversy between
the parties with respect thereto.
43. The Court's determination of the foregoing will resolve the dispute between the
parties.
44. Plaintiff has no adequate remedy at law.
AS AND FOR A SECOND CAUSE OF ACTION
"1"
45. Plaintiff repeats and realleges the allegations set forth in paragraphs through
"44"
above as though set forth at length herein.
46. Plaintiff will lose its long term Lease and substantial investment in the Premises if
Defendant's threats to terminate Plaintiff's leasehold based on the wrongful Notices to Cure are
permitted to occur.
9
11 of 13
FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024
47. Plaintiff will be irreparably harmed if Defendant is permitted to terminate the
Lease.
48. By reason of the foregoing, Plaintiff is entitled to a preliminary and then
Preview
FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---------------------________Ç HAUPPAUGE PROPERTIES, LLC, Index No.: Plaintiff, -- against - HAUPPAUGE ASSOCIATES, LLC, SUMMONS Defendant. Plaintiff designates Suffolk X County as the place for trial.* TO THE ABOVE NAMED DEFENDANT: YOU ARE HERBY SUMMONED to answer the attached 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 Plaintiffs 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 with the State of New York); and in case of your failure to appear to answer, judgment will be taken against you by default for the relief demanded in the Verified Complaint. Dated: New York, New York March 25, 2024 GOLDBERG WEPRIN FINKEL GOLDSTEIN LLP By: By: a ew Ï-I le Attorneys for Plaintiff - 12th 125 Park Avenue FlOOr New York, New York 10017 (212) 221-5700 1 of 13 FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024 To: Hauppauge Associates, LLC c/o Pergament Properties 95 Forehlich Farm Boulevard Woodbury, New York 11797 * of venue: The basis Judgment demanded would affect the title to, or the possession, use or enjoyment of real property located in Suffolk County. 2 of 13 FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK --------- ---- --------------X HAUPPAUGE PROPERTIES, LLC, Index No.: Plaintiff, -- against - HAUPPAUGE ASSOCIATES, LLC, COMPLAINT Defendant. -----------------------------------------Ç Plaintiff, Hauppauge Properties, LLC ("Plaintiff"), through its attorneys, Goldberg Weprin Finkel Goldstein, LLP, as and for its complaint against defendant, Hauppauge Associates, LLC ("Defendant"), as and for its complaint, respectfully alleges as follows: 1. This is an action seeking a declaratory judgment that Plaintiff is not in breach of its lease with Defendant and is not vulnerable to termination of its lease, as Defendant has threatened. "Yellowstone" 2. Submitted in conjunction with this complaint is an application for a injunction seeking a temporary restraining order and preliminary injunction against Defendant from seeking to enforce or otherwise act on its wrongful and illegal threat to terminate Plaintiff's valuable, long-term, commercial lease as set forth in Defendant's Notice to Cure dated December 22, 2023 ("First Notice to Cure") and Defendant's Notice to Cure dated February 20, 2024 ("Second Notice to Cure"). 3. Defendant has threatened to terminate Plaintiff's lease upon the false allegation that Events of Default have occurred under the Lease before this Court has the opportunity to hear this case and determine that, in fact, Defendant has no legitimate basis for declaring existence of a -1- 3 of 13 FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024 default under the Lease (as hereinafter defined) based on purported violations issued on a portion of the demised premises, with respect to the First Notice to Cure, or the alleged property conditions, with respect to the Second Notice to Cure. 4. Plaintiff only learned of these alleged violations via the First Notice to Cure and upon doing so immediately issued notice to its sub-tenant, Eden Resort & Spa ("Eden"), which is responsible for any such violations, demanding it address, remedy and cause such violations to be discharged. Eden advised Plaintiff that it was addressing the violations and the court date for disposition of the violations was scheduled for March 12, 2024. Plaintiff was told that the conditions leading to issuance of the violations are or will be remedied by that date. 5. Subsequently, Plaintiff was advised that while many issues identified as Defendant as alleged bases for asserting a default under the Lease have been cured, inspections of some have been delayed and the court date consequently has been adjourned. 6. Despite the efforts made to address the issues identified by Defendant in its First Notice to Cure and the reasonableness of the time needed to fully resolve them, Defendant has not withdrawn its First Notice to Cure or its wrongful threat to Plaintiff's leasehold. 7. Since the remedying of the violations reasonably has and will take longer than the 30 days provided by Defendant (and the Lease), by the express terms of the Lease, their existence Default" does not constitute an "Event of and, as such, Defendant was wrong to declare Plaintiff to be in default or to be threatening termination of its Lease if not cured by Defendant's deadline. 8. By the same token, the conditions set forth in the Second Notice to Cure cannot reasonably be reviewed, considered, analyzed and, if necessary, addressed or cured within the 30 days set forth in the Second Notice to Cure. -2- 4 of 13 FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024 9. Thus, under the terms of the Lease, while Plaintiff is diligently undertaking the steps necessary to determine whether the conditions actually are as alleged and to cure the conditions that might need to be cured, no Event of Default can be declared and Plaintiff s Lease should not be under threat. 10. This action seeks a declaratory judgment to that effect, thereby preserving Plaintiff's valuable, long term, commercial lease. PARTIES 11. Plaintiff is a New York limited liability company with an address of 1975 Hempstead Turnpike, Suite 309, East Meadow, New York 11554. 12. Upon information and belief, Defendant is a New York limited liability company with an address c/o Pergament Properties, 95 Froehlich Farm Boulevard, Woodbury, New York 11797. FACTUAL BACKGROUND The Lease and the Prior Litigation 13. Defendant is the owner of real property known as 573-603 Nesconset Highway, Hauppauge, New York (the "Premises"). 14. Plaintiff is the current tenant and Defendant is the current landlord under a long- term ground lease ("Lease") for a Premises. A copy of the Lease is annexed hereto as Exhibit "A". The Premises consist of a shopping center. One of Plaintiff s sub-tenants is Eden. 15. In Spring 2023, Plaintiff exercised its right to renew the Lease for a new 25-year term. Under the Lease, the rent for the renewal term is to be determined in accordance with an "arbitration" (appraisal) process. A dispute over the arbitration-appraisal process arose between -3- 5 of 13 FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024 Plaintiff and Defendant and that dispute is currently being litigated before this Court (Hauppause Properties, LLC v. Hauppauge Associates LLC, Suffolk Cty. Index No.: 626619/23 (the "First Action")). 16. Shortly after Defendant learned that Plaintiff had commenced the First Action and was seeking a preliminary injunction in that action, Defendant issued the Notice to Cure giving rise to assumption that Defendant is seeking retribution against Plaintiff for enforcing its rights under the Lease. The First Notice to Cure 17. The First Notice to Cure asserts that Plaintiff is in default due to the existence of certain violations issued by the Town of Smithtown. In pertinent part, the First Notice to Cure provides: [Y]ou are presently in default of your obligations as Tenant under the Lease in that you have violated your Lease inclusive of Articles 9, 10, and 12 by causing and/or permitting numerous fire and safety code violations at the Premises for which the tenant is directly liable and responsible, resulting in the Town of Smithtown's issuance of twenty-six (26) fire and life safety summons on or about June 21, 2023 ... A copy of the First Notice to Cure is annexed hereto as Exhibit "B". Emphasis in original. 18. The First Notice to Cure was accompanied by a copy of the "(Unofficial) Incident Report" issued by the Smithtown Public Safety Department which indicated that the violations Spa." were discovered during a "fire and safety inspection at the Eden Resort & S_ee_Exhibit "B". 19. Until Plaintiff received the First Notice to Cure, Plaintiff was unaware of the violations referenced (or any violations). -4- 6 of 13 FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024 20. The First Notice to Cure gave Plaintiff until January 26, 2024 to cure the alleged defaults relating to the violations. 21. The January 26, 2024 deadline was extended through March 29, 2024. Plaintiff's Response to the First Notice to Cure 22. Immediately upon learning of the violations, Plaintiff served notice on Eden to lions' address the violations (the share of which were and are Eden's responsibility). A copy of the notice to cure served on Eden is annexed hereto as Exhibit "C". In response, Eden told Plaintiff that the conditions identified in the Incident Report had or were being addressed and rectified and the court date where the violations would be resolved was scheduled for March 12, 2024, which date was subsequently adjourned because inspections of Eden's work were postponed. 23. There were a few conditions identified in the Incident Report that Plaintiff was required to address and just weeks after learning of them, Plaintiff hired Gensinger Fire Protection LLC ("Gensinger") to remedy the conditions. Those conditions were corrected. The Second Notice to Cure 24. On February 20, 2024, Defendant issued the Second Notice to Cure which cited Lease,1 Article 10 of the claiming that Plaintiff failed "to keep and maintain, or otherwise cause 1 Article 10 of the Lease provides as follows: Tenant covenants and agrees that throughout the term of this lease and all extensions and renewals thereof it shall, at its own cost and expense, keep and maintain, or cause to be kept and maintained, in good condition and repair, all portions of the demised premises including, without limitation, all land areas thereof and all buildings, structures, improvements, and other property therein, thereon or thereof, whether structural or non-structural, seen or "repairs" unforeseen, ordinary or extraordinary, or otherwise. The term as used herein shall be deemed to also include any replacements that may from time to -5- 7 of 13 FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024 to be kept and maintained, numerous portions of the demised premises in 'good condition and repair' including without limitation, the need for immediate repairs and replacement involving roof removal and replacement, stormwater retention and drywell repairs and maintenance, parking maintenance." lot, sidewalk and asphalt repairs and SEExhibit "D". 25. Accompanying the Second Notice to Cure was the Property Condition Assessment Report" dated February 17, 2024 which identified no less than 22 different portions of the demised Premises that in the estimation of the report's author, Zohaib A. Alvi, P.E., required repair or replacement with an estimate cost of more than $3.5 million. 26. Defendant's sudden issuance ofthe Second Notice to Cure demanding cure of more than $3.5 million in repairs within 30 days is absurd on its face because Plaintiff will obviously have to review it and its findings with its professionals to determine its accuracy and reasonableness and even if there are even some properly identified repair work required, contracting for same and then undertaking and completing such work will obviously reasonably require more than 30 days. Applicable Lease Provisions Default" 27. Article 28 of the Lease defines what constitutes an "Event of under the Lease as well as the rights and remedies of the parties with respect thereto: The following shall be defined and deemed as an "Event of Default": * * * (ii) Any failure of performance or compliance with any of the covenants, agreements, terms or conditions contained in this lease other than [non-payment] which shall continue for a period of thirty (30) days after written notice thereof from time be necessary. -6- 8 of 13 FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024 Landlord to Tenant provided, that if Tenant proceeds with due diligence during such thirty (30) day period to commence to cure such default and is unable by reason of the nature of the work involved, to cure the same within the said thirty (30) days, its time to do so shall be extended for an additional period required to cure same with reasonable dispatch. S_ee Exhibit "A". 28. Article 28(b) of the Lease provides in pertinent part, as follows: In case of any Event of Default as hereinbefore provided the Landlord shall ... have the immediate right of re-entry and may remove all persons and property from the demised premises ... In addition, in any Event of Default .. Landlord shall have the right, at its option to immediately terminate this lease on ten (10) days notice to Tenant ... 29. The plain wording of the Lease establishes that an Event of Default for anything other than non-payment comes into being 30 days after written notice from Landlord without subsequent cure. 30. Only upon a failure to cure and the creation of an Event of Default does the right to terminate vest with Defendant. 31. An exception to the foregoing arises where the nature of the alleged default is such that it cannot be cured within 30 days and, in such circumstances, so long as Plaintiff undertakes efforts to cure within the time period prescribed, no Event of Default comes into existence. 32. Here, the violations have been or are being diligently addressed (both by Plaintiff and Eden) but the court appearance in which the violations are to be disposed is not scheduled to take place until March 12, 2024. _7_ 9 of 13 FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024 33. Moreover, it is possible that administrative removal of the corrected or disposed violations will likely require municipal inspection and signoff all of which will reasonably take more than thirty days provided for in the Notice to Cure (as extended). 34. Thus, under the terms of the Lease, while Plaintiff is diligently undertaking the steps necessary to cure these violations (including ensuring that Eden complete whatever corrections are required and appearing at any judicial proceedings necessary to discharge the violations), no Event of Default can be declared and Plaintiff s Lease should not be under threat. 35. The conditions set forth in the Second Notice to Cure cannot reasonably be reviewed, considered, analyzed and, if necessary, addressed or cured within the 30 days set forth in the Second Notice to Cure and, therefore, under the terms of the Lease, while Plaintiff is diligently undertaking the steps necessary to address the alleged defaults, no Event of Default can be declared and Plaintiff s Lease should not be under threat. 36. The Notices to Cure are defective as a matter of law. 37. The Notices to Cure are defective because it improperly and prematurely threatens to terminate Plaintiff's Lease when there is no right to do so. 38. The Notices to Cure are defective because they fail to provide Plaintiff with contractually required cure periods. 39. Since the Notices to Cure are defective, they are unenforceable. AS AND FOR A FIRST CAUSE OF ACTION "1" 40. Plaintiff repeats and realleges the allegations set forth in paragraphs through "39" above as though set forth at length herein. -8- 10 of 13 FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024 41. Plaintiff is entitled to judgment pursuant to CPLR §3001 declaring the rights and remedies of the parties hereto with respect to the Lease and the alleged defaults thereunder, including, without limitation: a. that no Event of Default has occurred or will occur upon the expiration of the 30 day period (as extended) because of the nature of the alleged defaults and the reasonableness of cure taking longer than 30 days; b. that the Notices to Cure are invalid and unenforceable because they failed to afford to Plaintiff the contractually-required notice and cure periods; c. that Plaintiff is not in default under the Lease and that no "Event of Default" exists under the Lease; e. that Defendant does not have a right to terminate the Lease because of the alleged defaults set forth in the Notices to Cure; f. that if, in fact, a default exists, that Plaintiff shall have a reasonable time, no less than sixty (60) days, to cure same, or continue to undertake to cure same. 42. The parties dispute the foregoing and there is a justiciable controversy between the parties with respect thereto. 43. The Court's determination of the foregoing will resolve the dispute between the parties. 44. Plaintiff has no adequate remedy at law. AS AND FOR A SECOND CAUSE OF ACTION "1" 45. Plaintiff repeats and realleges the allegations set forth in paragraphs through "44" above as though set forth at length herein. 46. Plaintiff will lose its long term Lease and substantial investment in the Premises if Defendant's threats to terminate Plaintiff's leasehold based on the wrongful Notices to Cure are permitted to occur. 9 11 of 13 FILED: SUFFOLK COUNTY CLERK 03/25/2024 10:52 AM INDEX NO. 607358/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/25/2024 47. Plaintiff will be irreparably harmed if Defendant is permitted to terminate the Lease. 48. By reason of the foregoing, Plaintiff is entitled to a preliminary and then