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FILED: SUFFOLK COUNTY CLERK 03/25/2024 03:21 PM INDEX NO. 607358/2024
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 03/25/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
HAUPPAUGE PROPERTIES, LLC Index No.: 607358 W
Plaintiff,
AFFIDAVIT
- against -
HAUPPAUGE ASSOCIATES LLC,
Defendants.
Denis Rodger, being duly sworn, deposes and says:
1. I am manager of plaintiff, Hauppauge Properties, LLC ("Plaintiff"), and I have
personal knowledge of the facts herein.
2. I respectfully submit this affidavit in support of Plaintiff's motion, brought by order
to show cause, seeking a temporary restraining order and preliminary injunction against defendant,
Hauppauge Associates LLC ("Defendant") from seeking to enforce or otherwise act on its two
wrongful and illegal threats to terminate Plaintiff's valuable, long-term, commercial lease.
20241
3. Defendant has threatened to terminate Plaintiff's lease as early as March 29,
before this Court has the opportunity to hear this case and determine that Defendant has no
legitimate basis for declaring existence of a default under the Lease (as hereinafter defined) based
on purported violations issued on a portion of the demised premises. 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
1 Defendant issued a Notice to Cure on December
22, 2023 ("First Notice to Cure"). A copy of the
First Notice to Cure is annexed hereto as Exhibit
The First Notice to Cure gave Plaintiff until January 26, 2024
"A".
to cure the alleged Event of Default. The January 26, 2024 deadline to cure subsequently was extended through
"final."
March 29, 2024, a date Defendant has denominated as
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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. However, Plaintiff has since been told by Eden that, while Eden had
resolved many of the issues identified by Defendant as alleged bases for default, completion of the
remaining, and inspection of these remedies and repairs has been delayed and, consequently, the
court date for them was adjourned to May 7, 2024.
4. Despite the efforts made to address the issues identified by Defendant in its Notice
to Cure and the reasonableness of the time needed to fully resolve them, Defendant has refused to
withdraw its First Notice to Cure or its wrongful threat to Plaintiff's leasehold.
5. 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
does not constitute an "Event of Default". As such, Defendant was wrong to declare Plaintiff to be
in default or to be facing a potential termination of its Lease if not cured by Defendant's deadline.
6. Rather than acknowledge the good faith efforts undertaken by Plaintiff (and Eden)
to address and remedy the alleged conditions identified in Defendant's First Notice to Cure,
although remaining dubious that same constitute grounds for issuing the default in the first place,
Defendant on February 27, 2024, doubled down on its aggressive and wrongful tack by issuing a
second Notice to Cure (the "Second Notice to Cure"). The Second Notice to Cure purported to
declare Plaintiff in further (or additional) default due to certain alleged degraded or unrepaired
physical conditions of the Demised Premises as identified in a "Property Condition Assessment
Report"
dated February 17, 2024. A copy of the Second Notice to Cure (with Report) is annexed
hereto as Exhibit "B".
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7. As with the First Notice to Cure, Plaintiff disputes the existence of an Event of
Default and the propriety of threatening Plaintiff's leasehold interest in the Demised Premises. The
Second Notice to Cure is merely an escalation of Defendant's campaign to punish and discourage
Plaintiff for exercising its renewal option.
8. Even if there is some legitimate identification in the Second Notice to Cure of
certain conditions needing attention, for the sake of argument only, it is manifest that identification
and correction of same reasonably will take longer than the 30 days provided in the Second Notice
to Cure. As such, under the plain terms of the Lease, such cannot constitute an Event of Default
and, therefore, Defendant's threat to Plaintiff's leasehold is wrongful and improper.
DEFENDANT'S NOTICES TO CURE MUST BE STAYED
AND THE TIME PERIODS THEREIN TOLLED
9. Defendant's Notices to Cure are invalid. Defendant has no legal or contractual right
to threaten or seek to terminate Plaintiff's Lease. As set forth in the accompanying affirmation of
Matthew Hearle, Defendant's unjustifiable action requires emergency relief to prevent forfeiture
of Plaintiff's valuable, long-term (48 years), commercial lease. I respectfully refer the Court to the
Hearle Affirmation and incorporate its contents as though set forth at length herein.
10. The Notices to Cure are invalid and defective because, without conceding the
allegations set forth, each fails to provide Plaintiff with the contractually required time period
within which to cure, or cause to be cured, the alleged violations and defaults. Plaintiff asked
Defendant to recognize that the curing of the violations identified in the First Notice to Cure
reasonably will take longer than the 30 days afforded by the First Notice to Cure, but Defendant
has refused to extend its deadline to reflect that reality. Similarly, Defendant must acknowledge
that the raft of alleged property conditions set forth in the Second Notice to Cure will require time
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to examine, analyze and, if necessary, repair, reasonably will take longer than the 30 days afforded
by the Second Notice to Cure.
11. Defendant appears intent on seeking to wrongfully terminate Plaintiff's Lease and
has expressly threatened to do so. The imposition of a temporary restraining order and preliminary
injunction restraining Defendant from proceeding with the enforcement of its Notices to Cure (and
threats to terminate the lease) is critical to protect and preserve the wrongfully threatened Lease.
The Lease and the Prior Litigation
12. Plaintiff is the current tenant and Defendant is the current landlord under a long-
term ground lease ("Lease") for a property located at 573-603 Nesconset Highway, Hauppauge,
New York (the "Premises"). A copy of the Lease is annexed hereto as Exhibit "C". The Premises
consist of a shopping center. One of Plaintiff's sub-tenants is Eden.
13. In Sprin 2023, Plaintiff has exercised its right to renew the Lease for a new 25-year
term. Uñder 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
Plaintiff and Defendant and that dispute is currently being litigated before this Court (Hauonause
Properties, LLC v. Hauppauge Associates LLC, Suffolk Cty. Index No.: 626619/23 (the "First
Action")).
14. 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.
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The First Notice to Cure
15. 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 Notice to Cure asserts:
[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 sungnons on or about
June 21, 2023 ...
See Exhibit "A". Emphasis in original.
16. The Notice to Cure was accompanied by a copy of the "(Unofficial) Incident
Report"
issued by the Smithtown Public Safety Department. In that Report, the violations are
detailed and explained as having been detected after a "fire and safety inspection at the Eden
Spa."
Resort & See Exhibit "A". Until Plaintiff received the Notice to Cure, Plaintiff was
unaware of the violations referenced (or any violations).
Plaintiff's Response to the First Notice to Cure
17. 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 "D". 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. That
date was adjourned because of delays in inspecting the remedies made by Eden.
18. 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
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LLC ("Gensinger") to remedy the conditions. As reflected in a February 1, 2024 email from
Gensinger to Plaintiff, those conditions were corrected. Seg Exhibit "E".
The Second Notice to Cure
19. On February 27, 2024, Defendant issued the Second Notice to Cure. Citing Article
Lease,2
10 of the Defendant claimed that Plaintiff failed "to keep and maintain, or otherwise cause
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 Sgg Exhibit "B". Accompanying the Second
Report"
Notice to Cure was the Property Condition Assessment dated February 17, 2024. The
report, consisting of 57 pages, 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.
20. Defendant's sudden issuance of the Second Notice to Cure demanding cure of more
than $3.5 million in repairs within 30 days is absurd on its face. First, having never seen the report
before, Plaintiff will obviously have to review it and its findings with its professionals to determine
its accuracy and reasonableness. Second, assuming there are even some properly identified repair
2
Article 10 of the Lease provides as follows:
Tenant covenants and agrees that throughout the term of this lease and all
extensions and renewals it shall, at its own cost and expense, keep
thereof
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 fmm time to
time be necessary.
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work required, contracting for same and then undertaking and completing such work will
obviously reasonably require more than 30 days.
Applicable Lease Provisions
Default"
2 l. Article 28 of the Lease defmes what constitutes an "Event of under the
Lease. The same Article prescribes the rights and remedies of the parties with respect thereto. In
pertinent part, Article 28 provides as follows:
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
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.
Sg Exhibit "C".
22. 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 ...
23. 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 cure.
Only upon a failure to cure and the creation of an Event of Default does the right to terminate vest
with Defendant. However, if the nature of the alleged default is such that it cannot be cured within
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30 days, so long as Plaintiff undertakes efforts to cure within the time period prescribed, no Event
of Default comes into existence.
24. Here, with respect to the First Notice to Cure, the violations have been or are
actively being addressed (both by Plaintiff and Eden) but the completion, inspections and court
appearance in which the violations are to be disposed are not reasonably to all take place within
the time prescribed in the First Notice to Cure (as extended). 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.
25. 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. 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.
A YELLOWSTONE INJUNCTION IS WARRANTED
26. I respectfully submit that no defaults exist and the conditions that led to the issuance
of the Notices to Cure are not such as may justly be bases for alleged defaults and, those that
arguably could be, have been or will be timely redressed, thus obviating the Notices to Cure.
Accordingly, Defendant has no right to threaten Plaintiff's Lease.
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27. Nonetheless, in the event that the Court determines that there exist circumstances
or conditions which justify issuance of the Notices to Cure, that defaults exist, and that Plaintiff is
required to address and cure them to remain in good standing under the Lease, I assure and
represent to the Court that Plaintiff is and will be ready, willing and able to do so. Plaintiff will do
whatever is necessary to preserve its leasehold including remedying any violations or defaults
under the Lease that the Court determines exist. This request for a Yellowstone injunction ensures
preservation of the status quo while the issues in dispute are sorted out and adjudicated.
28. I am advised that courts seek to avoid forfeiture to the extent possible. Here,
Defendant has wrongfully threatened Plaintiff's Lease. The threat is improper and unjustified. The
Court's equitable intervention is necessary to avoid a manifest injustice.
NO PRIOR APPLICATION
29. No previous application has been made for the relief herein requested.
30. Plaintiff has no adequate remedy at law.
WHEREFORE, Plaintiff respectfully requests that this motion be granted in its entirety.
Plaintiff further asks that the Court award such other relief as it may deem just and appropriate in
these circumstances.
DENIS RODGER
Sworn to before me this
day of March, 2024
Notary Public
SIMONE D. DAVIS
- State of New York
Notary Public
No.01DAB225274
Qualified In Suffolk Coun
My Conunission ExpiresT/1 2 d)
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Word Count Certification
I hereby certify that the foregoing affidavit was prepared on a computer using Microsoft
Word. The typeface is Times New Roman. The font size is 12. Line spacing is set at double. The
total number of words inclusive of headings and footnotes but exclusive of caption and signature
blocks is 2618.
Dated: New York, New York
March 25, 2024
/s/Matthew Hearle
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FILED: SUFFOLK COUNTY CLERK 03/25/2024 03:21 PM INDEX NO. 607358/2024 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 03/25/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK HAUPPAUGE PROPERTIES, LLC Index No.: 607358 W Plaintiff, AFFIDAVIT - against - HAUPPAUGE ASSOCIATES LLC, Defendants. Denis Rodger, being duly sworn, deposes and says: 1. I am manager of plaintiff, Hauppauge Properties, LLC ("Plaintiff"), and I have personal knowledge of the facts herein. 2. I respectfully submit this affidavit in support of Plaintiff's motion, brought by order to show cause, seeking a temporary restraining order and preliminary injunction against defendant, Hauppauge Associates LLC ("Defendant") from seeking to enforce or otherwise act on its two wrongful and illegal threats to terminate Plaintiff's valuable, long-term, commercial lease. 20241 3. Defendant has threatened to terminate Plaintiff's lease as early as March 29, before this Court has the opportunity to hear this case and determine that Defendant has no legitimate basis for declaring existence of a default under the Lease (as hereinafter defined) based on purported violations issued on a portion of the demised premises. 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 1 Defendant issued a Notice to Cure on December 22, 2023 ("First Notice to Cure"). A copy of the First Notice to Cure is annexed hereto as Exhibit The First Notice to Cure gave Plaintiff until January 26, 2024 "A". to cure the alleged Event of Default. The January 26, 2024 deadline to cure subsequently was extended through "final." March 29, 2024, a date Defendant has denominated as 1 1 of 10 FILED: SUFFOLK COUNTY CLERK 03/25/2024 03:21 PM INDEX NO. 607358/2024 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 03/25/2024 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. However, Plaintiff has since been told by Eden that, while Eden had resolved many of the issues identified by Defendant as alleged bases for default, completion of the remaining, and inspection of these remedies and repairs has been delayed and, consequently, the court date for them was adjourned to May 7, 2024. 4. Despite the efforts made to address the issues identified by Defendant in its Notice to Cure and the reasonableness of the time needed to fully resolve them, Defendant has refused to withdraw its First Notice to Cure or its wrongful threat to Plaintiff's leasehold. 5. 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 does not constitute an "Event of Default". As such, Defendant was wrong to declare Plaintiff to be in default or to be facing a potential termination of its Lease if not cured by Defendant's deadline. 6. Rather than acknowledge the good faith efforts undertaken by Plaintiff (and Eden) to address and remedy the alleged conditions identified in Defendant's First Notice to Cure, although remaining dubious that same constitute grounds for issuing the default in the first place, Defendant on February 27, 2024, doubled down on its aggressive and wrongful tack by issuing a second Notice to Cure (the "Second Notice to Cure"). The Second Notice to Cure purported to declare Plaintiff in further (or additional) default due to certain alleged degraded or unrepaired physical conditions of the Demised Premises as identified in a "Property Condition Assessment Report" dated February 17, 2024. A copy of the Second Notice to Cure (with Report) is annexed hereto as Exhibit "B". 2 2 of 10 FILED: SUFFOLK COUNTY CLERK 03/25/2024 03:21 PM INDEX NO. 607358/2024 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 03/25/2024 7. As with the First Notice to Cure, Plaintiff disputes the existence of an Event of Default and the propriety of threatening Plaintiff's leasehold interest in the Demised Premises. The Second Notice to Cure is merely an escalation of Defendant's campaign to punish and discourage Plaintiff for exercising its renewal option. 8. Even if there is some legitimate identification in the Second Notice to Cure of certain conditions needing attention, for the sake of argument only, it is manifest that identification and correction of same reasonably will take longer than the 30 days provided in the Second Notice to Cure. As such, under the plain terms of the Lease, such cannot constitute an Event of Default and, therefore, Defendant's threat to Plaintiff's leasehold is wrongful and improper. DEFENDANT'S NOTICES TO CURE MUST BE STAYED AND THE TIME PERIODS THEREIN TOLLED 9. Defendant's Notices to Cure are invalid. Defendant has no legal or contractual right to threaten or seek to terminate Plaintiff's Lease. As set forth in the accompanying affirmation of Matthew Hearle, Defendant's unjustifiable action requires emergency relief to prevent forfeiture of Plaintiff's valuable, long-term (48 years), commercial lease. I respectfully refer the Court to the Hearle Affirmation and incorporate its contents as though set forth at length herein. 10. The Notices to Cure are invalid and defective because, without conceding the allegations set forth, each fails to provide Plaintiff with the contractually required time period within which to cure, or cause to be cured, the alleged violations and defaults. Plaintiff asked Defendant to recognize that the curing of the violations identified in the First Notice to Cure reasonably will take longer than the 30 days afforded by the First Notice to Cure, but Defendant has refused to extend its deadline to reflect that reality. Similarly, Defendant must acknowledge that the raft of alleged property conditions set forth in the Second Notice to Cure will require time 3 3 of 10 FILED: SUFFOLK COUNTY CLERK 03/25/2024 03:21 PM INDEX NO. 607358/2024 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 03/25/2024 to examine, analyze and, if necessary, repair, reasonably will take longer than the 30 days afforded by the Second Notice to Cure. 11. Defendant appears intent on seeking to wrongfully terminate Plaintiff's Lease and has expressly threatened to do so. The imposition of a temporary restraining order and preliminary injunction restraining Defendant from proceeding with the enforcement of its Notices to Cure (and threats to terminate the lease) is critical to protect and preserve the wrongfully threatened Lease. The Lease and the Prior Litigation 12. Plaintiff is the current tenant and Defendant is the current landlord under a long- term ground lease ("Lease") for a property located at 573-603 Nesconset Highway, Hauppauge, New York (the "Premises"). A copy of the Lease is annexed hereto as Exhibit "C". The Premises consist of a shopping center. One of Plaintiff's sub-tenants is Eden. 13. In Sprin 2023, Plaintiff has exercised its right to renew the Lease for a new 25-year term. Uñder 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 Plaintiff and Defendant and that dispute is currently being litigated before this Court (Hauonause Properties, LLC v. Hauppauge Associates LLC, Suffolk Cty. Index No.: 626619/23 (the "First Action")). 14. 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. 4 4 of 10 FILED: SUFFOLK COUNTY CLERK 03/25/2024 03:21 PM INDEX NO. 607358/2024 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 03/25/2024 The First Notice to Cure 15. 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 Notice to Cure asserts: [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 sungnons on or about June 21, 2023 ... See Exhibit "A". Emphasis in original. 16. The Notice to Cure was accompanied by a copy of the "(Unofficial) Incident Report" issued by the Smithtown Public Safety Department. In that Report, the violations are detailed and explained as having been detected after a "fire and safety inspection at the Eden Spa." Resort & See Exhibit "A". Until Plaintiff received the Notice to Cure, Plaintiff was unaware of the violations referenced (or any violations). Plaintiff's Response to the First Notice to Cure 17. 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 "D". 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. That date was adjourned because of delays in inspecting the remedies made by Eden. 18. 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 5 5 of 10 FILED: SUFFOLK COUNTY CLERK 03/25/2024 03:21 PM INDEX NO. 607358/2024 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 03/25/2024 LLC ("Gensinger") to remedy the conditions. As reflected in a February 1, 2024 email from Gensinger to Plaintiff, those conditions were corrected. Seg Exhibit "E". The Second Notice to Cure 19. On February 27, 2024, Defendant issued the Second Notice to Cure. Citing Article Lease,2 10 of the Defendant claimed that Plaintiff failed "to keep and maintain, or otherwise cause 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 Sgg Exhibit "B". Accompanying the Second Report" Notice to Cure was the Property Condition Assessment dated February 17, 2024. The report, consisting of 57 pages, 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. 20. Defendant's sudden issuance of the Second Notice to Cure demanding cure of more than $3.5 million in repairs within 30 days is absurd on its face. First, having never seen the report before, Plaintiff will obviously have to review it and its findings with its professionals to determine its accuracy and reasonableness. Second, assuming there are even some properly identified repair 2 Article 10 of the Lease provides as follows: Tenant covenants and agrees that throughout the term of this lease and all extensions and renewals it shall, at its own cost and expense, keep thereof 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 fmm time to time be necessary. 6 6 of 10 FILED: SUFFOLK COUNTY CLERK 03/25/2024 03:21 PM INDEX NO. 607358/2024 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 03/25/2024 work required, contracting for same and then undertaking and completing such work will obviously reasonably require more than 30 days. Applicable Lease Provisions Default" 2 l. Article 28 of the Lease defmes what constitutes an "Event of under the Lease. The same Article prescribes the rights and remedies of the parties with respect thereto. In pertinent part, Article 28 provides as follows: 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 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. Sg Exhibit "C". 22. 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 ... 23. 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 cure. Only upon a failure to cure and the creation of an Event of Default does the right to terminate vest with Defendant. However, if the nature of the alleged default is such that it cannot be cured within 7 7 of 10 FILED: SUFFOLK COUNTY CLERK 03/25/2024 03:21 PM INDEX NO. 607358/2024 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 03/25/2024 30 days, so long as Plaintiff undertakes efforts to cure within the time period prescribed, no Event of Default comes into existence. 24. Here, with respect to the First Notice to Cure, the violations have been or are actively being addressed (both by Plaintiff and Eden) but the completion, inspections and court appearance in which the violations are to be disposed are not reasonably to all take place within the time prescribed in the First Notice to Cure (as extended). 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. 25. 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. 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. A YELLOWSTONE INJUNCTION IS WARRANTED 26. I respectfully submit that no defaults exist and the conditions that led to the issuance of the Notices to Cure are not such as may justly be bases for alleged defaults and, those that arguably could be, have been or will be timely redressed, thus obviating the Notices to Cure. Accordingly, Defendant has no right to threaten Plaintiff's Lease. 8 8 of 10 FILED: SUFFOLK COUNTY CLERK 03/25/2024 03:21 PM INDEX NO. 607358/2024 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 03/25/2024 27. Nonetheless, in the event that the Court determines that there exist circumstances or conditions which justify issuance of the Notices to Cure, that defaults exist, and that Plaintiff is required to address and cure them to remain in good standing under the Lease, I assure and represent to the Court that Plaintiff is and will be ready, willing and able to do so. Plaintiff will do whatever is necessary to preserve its leasehold including remedying any violations or defaults under the Lease that the Court determines exist. This request for a Yellowstone injunction ensures preservation of the status quo while the issues in dispute are sorted out and adjudicated. 28. I am advised that courts seek to avoid forfeiture to the extent possible. Here, Defendant has wrongfully threatened Plaintiff's Lease. The threat is improper and unjustified. The Court's equitable intervention is necessary to avoid a manifest injustice. NO PRIOR APPLICATION 29. No previous application has been made for the relief herein requested. 30. Plaintiff has no adequate remedy at law. WHEREFORE, Plaintiff respectfully requests that this motion be granted in its entirety. Plaintiff further asks that the Court award such other relief as it may deem just and appropriate in these circumstances. DENIS RODGER Sworn to before me this day of March, 2024 Notary Public SIMONE D. DAVIS - State of New York Notary Public No.01DAB225274 Qualified In Suffolk Coun My Conunission ExpiresT/1 2 d) 9 9 of 10 FILED: SUFFOLK COUNTY CLERK 03/25/2024 03:21 PM INDEX NO. 607358/2024 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 03/25/2024 Word Count Certification I hereby certify that the foregoing affidavit was prepared on a computer using Microsoft Word. The typeface is Times New Roman. The font size is 12. Line spacing is set at double. The total number of words inclusive of headings and footnotes but exclusive of caption and signature blocks is 2618. Dated: New York, New York March 25, 2024 /s/Matthew Hearle 10 of 10