Preview
FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
––––––––––––––––––––––––––– X
LIBERTY EVENTS, LLC, :
: Index No.: 651761/2024
Plaintiff, :
: AFFIRMATION IN SUPPORT OF
-against- : MOTION FOR INJUNCTIVE
: RELIEF AND CONSOLIDATION
175 VAN DYKE LLC, and :
GREGORY T. O’CONNELL III, :
Motion Sequence No.: 001
:
Defendants.
:
X
–––––––––––––––––––––––––––
RICHARD DEAN, affirms the following statements to be true, under the penalty of
perjury:
1. I am the Controller of Liberty Events, LLC (“Tenant”) and am familiar with the
facts stated herein.
2. I make this affirmation to support Tenant’s motion for injunctive relief and for
consolidation into this action of a summary non-payment proceeding pending in Civil Court, Kings
County.
3. As explained herein, and in the accompanying affirmation of Norman Flitt and
memorandum of law, Tenant is entitled to the relief sought on the instant motion and will suffer
irreparable harm and injury unless the requested injunctive relief is granted.
FACTS
4. Tenant is, and was at all relevant times, a limited liability company organized under
the laws of the State of New York and authorized to business in the state of New York, with offices
in the city, county, and state of New York.
RE\48504\0002\5507073v1
1 of 10
FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024
5. Upon information and belief, defendant 175 Van Dyke LLC (“Landlord”) is, and
was at all relevant times, a limited liability company organized under the laws of the State of New
York and authorized to business in the state of New York.
6. Upon information and belief, defendant Gregory T. O’Connell (“O’Connell”) is,
and was at all relevant times, an individual resident of the state of New York, and is a member of
Landlord and minority shareholder in an entity known as Western New York Energy, LLC
(“Western New York”).
7. Pursuant to a written lease agreement made as of October 1, 2010, between
Landlord’s predecessor-in-interest Pier 41 Associates, as landlord, and Tenant, as tenant, Tenant
entered into possession of the subject premises described below (the “Premises”), which written
lease was most recently extended by a certain lease renewal letter dated July 16, 2020, wherein
Landlord, as landlord, and Tenant, as tenant, agreed to extend the term of the lease for a period of
ten (10) years beginning October 2, 2020 and ending October 1, 2030 (hereinafter, collectively,
the “Lease”). Exhibit “A” hereto is a copy of the Lease.
8. The Premises are rented by Tenant for commercial purposes as a catering hall liquor
license establishment and are described in the Lease as follows:
All rooms in UNIT 326A&B a/k/a UNIT 326 and
UNIT 327 A&B a/k/a UNIT 237 in the building
known as and located at 175 VAN DYKE STREET
BROOKLYN, NEW YORK 11231.
9. Paragraph 3 of the Lease provides:
The Demised Premises are to be used by Tenant for
the operation of a catering, event, banquet, cabaret,
restaurant, and/or liquor license establishment.
Tenant shall occupy and use the Demised Premises
as a high quality establishment for the use described
above. Tenant, at its own expense, shall promptly
apply for and with due diligence obtain any and all
licenses and permits from time to time required, and
-2-
RE\48504\0002\5507073v1
2 of 10
FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024
shall abide by any and all governmental rules sad
regulations, and Owner shall provide good faith
cooperation to Tenant, to enable Tenant to conduct
its business and operations under the Lease.
10. Since the inception of the tenancy, Tenant has been operating its catering business
at the Premises as a “liquor license establishment” in accordance with the Lease.
11. When Tenant entered into the Lease with Pier 41 Associates, the parties’ intention
was to form essentially a partnership arrangement to operate a catering establishment with the
parties sharing the profits and the expenses.
12. In fact, when Landlord accepted Tenant’s exercise of its option to renew the Lease
for an additional term to begin on October 2, 2020 and end on October 1, 2030, Landlord conceded
that the parties’ arrangement was a “partnership” that Landlord would hope to continue through
the remaining term of the Lease as renewed.
13. Paragraph 5 of the Lease provides:
(i) As of the Commencement Date…Tenant shall pay
Owner a fifty percent (50%) share of any and all net
profits…from the operation of a catering event,
banquet, cabaret, restaurant, and/or liquor license
establishment at the Demised Premises, as rent,
known as the “Net Profit Sharing Arrangement”;
(ii) Net profits in this regard to the Net Profit Sharing
Arrangement shall be defined as any and all income
that is actually received by Tenant…under generally
accepted accounting principals (“GAAP”);
(iii) Tenant shall pay Owner the Owner’s share of the
Net Profit Sharing Arrangement on a quarterly basis
within one and a half (1 ½) months of the end of each
preceding three month period…
14. As Tenant and Landlord had entered into an arrangement to share in the net profits
of the enterprise, the principals of both Tenant and Landlord, including O’Connell, were identified
-3-
RE\48504\0002\5507073v1
3 of 10
FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024
on the liquor license under which Tenant conducted its catering business, as was required under
the Alcoholic Beverage Control Law of the State of New York (“ABCL”).
15. Upon information and belief, in or about March 2023, Western New York acquired
an interest in a distillery/distributing business (the “Distillery”).
16. Counsel advises that as a result of Western New York’s interest in the Distillery,
and O’Connell’s minority interest in Western New York, Landlord is disabled under the ABCL
from having an interest under a liquor license issued to a retail establishment or catering operation.
17. In a memorandum provided to us by Landlord’s attorney, it is explained that a party
having an interest, including a de minimis interest, in both a retail establishment and a
distillery/manufacturer of alcoholic beverages would be in violation of what is known as the “Tied
House Restrictions” as more fully explained in the memorandum, a copy of which is annexed
hereto as Exhibit “B.”
18. The memorandum refers to Section 106 of the ABCL, which provides in pertinent
part:
No retail licensee for on-premises consumption shall
be interested, directly or indirectly, in any premises
where liquors, wines or beer are manufactured or
sold at wholesale, by stock ownership, interlocking
directors, mortgage or lien on any personal or real
property or by any other means....
19. The memorandum also refers to Section 101 of the ABCL, which provides in part:
It shall be unlawful for a manufacturer or wholesaler
licensed under this chapter to (a) Be interested
directly or indirectly in any premises where any
alcoholic beverage is sold at retail; or in any business
devoted wholly or partially to the sale of any
alcoholic beverage at retail by stock ownership,
interlocking directors, mortgage or lien or any
personal or real property, or by any other means.
-4-
RE\48504\0002\5507073v1
4 of 10
FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024
20. Tenant was advised of the Tied House Violation in or about late October or early
November 2023.
21. O’Connell is aware of the impact of the Tied House Violation on the Lease and the
net-profit-sharing agreement commemorated therein.
22. Without a liquor license, Tenant cannot legally operate at the Premises as a “liquor
license establishment” as set forth in the Lease.
23. As such, and unless the Tied House Violation is eliminated, Tenant must either
forgo the benefit of its bargain under the net-profit-sharing arrangement now commemorated in
the Lease or vacate the Premises and cease operations.
24. Upon information and belief, the violation of the Tied House Restrictions and
ABCL could be eliminated simply by Landlord and/or its principals and/or its members, including
O’Connell, divesting themselves of their investment in Western New York, or simply transferring
said interest in Western New York to another entity or individual with no ownership interest in
Landlord.
25. Landlord and O’Connell have, however, refused to divest themselves of their
interest in Western New York and insisted instead on materially changing the terms of the Lease
to provide for a fixed rental instead of the net-profit-sharing agreement that the parties agreed to
when the Lease was signed in 2010 and operated under ever since.
26. If no remedial action is taken on the part of Landlord or O’Connell, including action
to divest themselves of their interest in Western New York, Tenant will suffer irreparable harm
and injury.
-5-
RE\48504\0002\5507073v1
5 of 10
FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024
27. Tenant should not be compelled to enter into a fixed-rent lease with Landlord or
abandon its ongoing catering business as a result of O’Connell’s refusal to divest or transfer his
interests in Western New York.
28. Both Landlord and O’Connell should accordingly be enjoined and restrained, both
preliminary and permanently, from continuing to act or failing to act in a manner that violates
Landlord’s obligations under the existing Lease or that effectively precludes Tenant from enjoying
the benefit of its bargain under the Lease and operating a “liquor license establishment” at the
Premises on a net-profit-sharing basis.
29. Landlord and its members, including but not limited to O’Connell, should therefore
be directed immediately to sell or transfer their ownership interest in Western New York so as to
eliminate the now-existing Tide House Violation
30. Without such relief, Tenant will sustain irreparable harm and injury and lose the
considerable goodwill that Tenant has built up as a result of its operation of a "liquor license
establishment” at the Premises since 2010.
TENANT IS ENTITLED TO THE RELIEF
REQUESTED ON THE INSTANT MOTION
A. Tenant Needs the Injunctive Relief to Remain
in Business and Avoid Irreparable Injury
31. The violation of the ABCL and the Tied House Restrictions as alleged above and
Landlord’s subsequent demand for a fixed-rent lease has deprived Tenant of the benefit of its
bargain under the Lease and has interfered with and frustrated Tenant’s long-term ability to operate
the premises as a “liquor license establishment” in accordance with the provisions of the existing
Lease, and Landlord’s aforementioned acts and conduct are in material breach of Landlord’s
express and implied obligations under the Lease.
-6-
RE\48504\0002\5507073v1
6 of 10
FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024
32. As a result of Landlord’s breach of its obligations under the Lease, and its
continuing violation of the ABCL and Tied House Restrictions, including the refusal to sell or
transfer its interest in Western New York, the owner of the Distillery, Tenant has suffered and will
continue to suffer irreparable harm including, without limitation, the loss of its valuable leasehold,
the constructive eviction of Tenant from the Premises, the imminent failure of Tenant’s business,
and the loss of the goodwill built-up by Tenant in its over 13 years of operating its business.
33. Tenant is, as a result, bringing the instant action and requesting an order and
judgment compelling Landlord to specifically comply with and perform its obligations under the
Lease and to immediately cease and desist from any action or inaction that perpetuates violations
of the Lease and/or applicable law, and precludes Tenant from enjoying the benefit of its bargain
under the Lease.
34. Because of the nature of the loss Tenant will suffer, Tenant has no adequate remedy
at law and will sustain irreparable harm and injury unless the relief requested on the instant motion
and in the underlying action is granted.
35. Tenant is also requesting an injunction preliminarily and permanently enjoining
Landlord from continuing, through its deliberate acts or inaction, to prevent Tenant from enjoying
the benefit of its bargain under the Lease and using the Premises as a “liquor license establishment”
under the net-profit-sharing arrangement the parties have been engaging in since 2010.
36. Unless and until Landlord is enjoined from acting in any way that would deprive
Tenant of the benefit of the net profit arrangement as commemorated in the Lease, including, but
not limited to, selling or transferring its interests in Western New York, Tenant will suffer
irreparable harm including, without limitation, the loss of its valuable leasehold, the constructive
eviction of Tenant from the Premises, the imminent failure of Tenant’s business, and the goodwill
-7-
RE\48504\0002\5507073v1
7 of 10
FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024
built-up by Tenant in its over 13 years of operating its business, and therefore, Tenant will lose the
benefit of its bargain under the Lease.
37. Tenant is also seeking injunctive relief against O’Connell because he owns the
minority interest in Western New York which interest has caused the Tied House Violation
referred to above.
38. It seems so simple for O’Connor simply to either sell or transfer this minority
interest to a person or entity with no interest in Landlord or the Lease so that there is no longer any
conflict between the retail liquor license issued to Tenant and the manufacturer’s liquor license
issued to the Distillery.
39. O’Connell, despite due demand, has refused to sell or transfer the shares in Western
New York.
40. Instead, he apparently wants to deprive Tenant of the next profit-sharing
arrangement under which the parties have operated for over 13 years and the benefit of Tenant’s
bargain under the existing Lease.
41. O’Connell’s position in this regard is unconscionable and clearly the equities
balance in Tenant’s favor here, where Tenant is simply seeking to enjoy the benefit of the bargain
under the existing Lease, while O’Connell is improperly seeking to extract a better deal from
Tenant under a fixed rent lease with new and different terms.
42. In the interim, and during the pendency of this motion and the underlying action,
both Landlord and O’Connell should be temporarily and preliminarily enjoined from engaging in
any action or inaction that would deprive Tenant of the ability to operate its “liquor license
establishment” at the Premises as allowed pursuant to the Lease. If compliance with this injunctive
remedy requires O’Connell to divest himself of his minority interest in Western New York or
-8-
RE\48504\0002\5507073v1
8 of 10
FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024
simply to transfer that interest into a trust or to some other family member, then so be it. It is a far
lesser burden for O'Connell to do that than it is for Tenant to be irreparably injured by the loss of
its business and the tremendous arnount of goodwill built up at the Premises by Tenant over the
more than 13 years of its operations.
43. As for the accompanying request to consolidate the summary proceeding now
pending in Civil Court, K.ings County with the instant action, the Court is respectfully referred to
the affirmation of Norman Flitt which explains the procedural history and the rationale for
consolidation.
44. As shown ihere, it is only in Supreme Court and in the instant action that the parties
can obtain complete relief and the resolution of their entire dispute. Moreover, it is only in this
action that Tenant can preserve its tenancy through equitable reliefand assure that Tenant is not
driven involuntarily out of business before its rights and remedies can be adjudicated.
45. No prior request for the relief requested herein has been made.
WHEREFORE, Tenant respectfully requests that the instant motion be granted in all
respects, together with such other and further relief as the Court deemed just and proper.
I affirm this _8th day of April,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.
-9-
RE\48s04\000 1\5507 0'1 3v I
9 of 10
FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024
PRINTING SPECIFICATIONS STATEMENT
I, Norman Flitt, hereby certify that, pursuant to Rule 202.8-b of Uniform Civil Rules for
the Supreme Court, the foregoing Affirmation of Richard Dean contains a total of 2,590 words (as
measured by the word processing system on which it was prepared), inclusive of point heading
and footnotes and exclusive of pages containing the table of contents, table of authorities and this
Certificate.
Dated: New York, New York
April 8, 2024
Norman Flitt
-10-
RE\48504\0002\5507073v1
10 of 10
Preview
FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ––––––––––––––––––––––––––– X LIBERTY EVENTS, LLC, : : Index No.: 651761/2024 Plaintiff, : : AFFIRMATION IN SUPPORT OF -against- : MOTION FOR INJUNCTIVE : RELIEF AND CONSOLIDATION 175 VAN DYKE LLC, and : GREGORY T. O’CONNELL III, : Motion Sequence No.: 001 : Defendants. : X ––––––––––––––––––––––––––– RICHARD DEAN, affirms the following statements to be true, under the penalty of perjury: 1. I am the Controller of Liberty Events, LLC (“Tenant”) and am familiar with the facts stated herein. 2. I make this affirmation to support Tenant’s motion for injunctive relief and for consolidation into this action of a summary non-payment proceeding pending in Civil Court, Kings County. 3. As explained herein, and in the accompanying affirmation of Norman Flitt and memorandum of law, Tenant is entitled to the relief sought on the instant motion and will suffer irreparable harm and injury unless the requested injunctive relief is granted. FACTS 4. Tenant is, and was at all relevant times, a limited liability company organized under the laws of the State of New York and authorized to business in the state of New York, with offices in the city, county, and state of New York. RE\48504\0002\5507073v1 1 of 10 FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024 5. Upon information and belief, defendant 175 Van Dyke LLC (“Landlord”) is, and was at all relevant times, a limited liability company organized under the laws of the State of New York and authorized to business in the state of New York. 6. Upon information and belief, defendant Gregory T. O’Connell (“O’Connell”) is, and was at all relevant times, an individual resident of the state of New York, and is a member of Landlord and minority shareholder in an entity known as Western New York Energy, LLC (“Western New York”). 7. Pursuant to a written lease agreement made as of October 1, 2010, between Landlord’s predecessor-in-interest Pier 41 Associates, as landlord, and Tenant, as tenant, Tenant entered into possession of the subject premises described below (the “Premises”), which written lease was most recently extended by a certain lease renewal letter dated July 16, 2020, wherein Landlord, as landlord, and Tenant, as tenant, agreed to extend the term of the lease for a period of ten (10) years beginning October 2, 2020 and ending October 1, 2030 (hereinafter, collectively, the “Lease”). Exhibit “A” hereto is a copy of the Lease. 8. The Premises are rented by Tenant for commercial purposes as a catering hall liquor license establishment and are described in the Lease as follows: All rooms in UNIT 326A&B a/k/a UNIT 326 and UNIT 327 A&B a/k/a UNIT 237 in the building known as and located at 175 VAN DYKE STREET BROOKLYN, NEW YORK 11231. 9. Paragraph 3 of the Lease provides: The Demised Premises are to be used by Tenant for the operation of a catering, event, banquet, cabaret, restaurant, and/or liquor license establishment. Tenant shall occupy and use the Demised Premises as a high quality establishment for the use described above. Tenant, at its own expense, shall promptly apply for and with due diligence obtain any and all licenses and permits from time to time required, and -2- RE\48504\0002\5507073v1 2 of 10 FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024 shall abide by any and all governmental rules sad regulations, and Owner shall provide good faith cooperation to Tenant, to enable Tenant to conduct its business and operations under the Lease. 10. Since the inception of the tenancy, Tenant has been operating its catering business at the Premises as a “liquor license establishment” in accordance with the Lease. 11. When Tenant entered into the Lease with Pier 41 Associates, the parties’ intention was to form essentially a partnership arrangement to operate a catering establishment with the parties sharing the profits and the expenses. 12. In fact, when Landlord accepted Tenant’s exercise of its option to renew the Lease for an additional term to begin on October 2, 2020 and end on October 1, 2030, Landlord conceded that the parties’ arrangement was a “partnership” that Landlord would hope to continue through the remaining term of the Lease as renewed. 13. Paragraph 5 of the Lease provides: (i) As of the Commencement Date…Tenant shall pay Owner a fifty percent (50%) share of any and all net profits…from the operation of a catering event, banquet, cabaret, restaurant, and/or liquor license establishment at the Demised Premises, as rent, known as the “Net Profit Sharing Arrangement”; (ii) Net profits in this regard to the Net Profit Sharing Arrangement shall be defined as any and all income that is actually received by Tenant…under generally accepted accounting principals (“GAAP”); (iii) Tenant shall pay Owner the Owner’s share of the Net Profit Sharing Arrangement on a quarterly basis within one and a half (1 ½) months of the end of each preceding three month period… 14. As Tenant and Landlord had entered into an arrangement to share in the net profits of the enterprise, the principals of both Tenant and Landlord, including O’Connell, were identified -3- RE\48504\0002\5507073v1 3 of 10 FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024 on the liquor license under which Tenant conducted its catering business, as was required under the Alcoholic Beverage Control Law of the State of New York (“ABCL”). 15. Upon information and belief, in or about March 2023, Western New York acquired an interest in a distillery/distributing business (the “Distillery”). 16. Counsel advises that as a result of Western New York’s interest in the Distillery, and O’Connell’s minority interest in Western New York, Landlord is disabled under the ABCL from having an interest under a liquor license issued to a retail establishment or catering operation. 17. In a memorandum provided to us by Landlord’s attorney, it is explained that a party having an interest, including a de minimis interest, in both a retail establishment and a distillery/manufacturer of alcoholic beverages would be in violation of what is known as the “Tied House Restrictions” as more fully explained in the memorandum, a copy of which is annexed hereto as Exhibit “B.” 18. The memorandum refers to Section 106 of the ABCL, which provides in pertinent part: No retail licensee for on-premises consumption shall be interested, directly or indirectly, in any premises where liquors, wines or beer are manufactured or sold at wholesale, by stock ownership, interlocking directors, mortgage or lien on any personal or real property or by any other means.... 19. The memorandum also refers to Section 101 of the ABCL, which provides in part: It shall be unlawful for a manufacturer or wholesaler licensed under this chapter to (a) Be interested directly or indirectly in any premises where any alcoholic beverage is sold at retail; or in any business devoted wholly or partially to the sale of any alcoholic beverage at retail by stock ownership, interlocking directors, mortgage or lien or any personal or real property, or by any other means. -4- RE\48504\0002\5507073v1 4 of 10 FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024 20. Tenant was advised of the Tied House Violation in or about late October or early November 2023. 21. O’Connell is aware of the impact of the Tied House Violation on the Lease and the net-profit-sharing agreement commemorated therein. 22. Without a liquor license, Tenant cannot legally operate at the Premises as a “liquor license establishment” as set forth in the Lease. 23. As such, and unless the Tied House Violation is eliminated, Tenant must either forgo the benefit of its bargain under the net-profit-sharing arrangement now commemorated in the Lease or vacate the Premises and cease operations. 24. Upon information and belief, the violation of the Tied House Restrictions and ABCL could be eliminated simply by Landlord and/or its principals and/or its members, including O’Connell, divesting themselves of their investment in Western New York, or simply transferring said interest in Western New York to another entity or individual with no ownership interest in Landlord. 25. Landlord and O’Connell have, however, refused to divest themselves of their interest in Western New York and insisted instead on materially changing the terms of the Lease to provide for a fixed rental instead of the net-profit-sharing agreement that the parties agreed to when the Lease was signed in 2010 and operated under ever since. 26. If no remedial action is taken on the part of Landlord or O’Connell, including action to divest themselves of their interest in Western New York, Tenant will suffer irreparable harm and injury. -5- RE\48504\0002\5507073v1 5 of 10 FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024 27. Tenant should not be compelled to enter into a fixed-rent lease with Landlord or abandon its ongoing catering business as a result of O’Connell’s refusal to divest or transfer his interests in Western New York. 28. Both Landlord and O’Connell should accordingly be enjoined and restrained, both preliminary and permanently, from continuing to act or failing to act in a manner that violates Landlord’s obligations under the existing Lease or that effectively precludes Tenant from enjoying the benefit of its bargain under the Lease and operating a “liquor license establishment” at the Premises on a net-profit-sharing basis. 29. Landlord and its members, including but not limited to O’Connell, should therefore be directed immediately to sell or transfer their ownership interest in Western New York so as to eliminate the now-existing Tide House Violation 30. Without such relief, Tenant will sustain irreparable harm and injury and lose the considerable goodwill that Tenant has built up as a result of its operation of a "liquor license establishment” at the Premises since 2010. TENANT IS ENTITLED TO THE RELIEF REQUESTED ON THE INSTANT MOTION A. Tenant Needs the Injunctive Relief to Remain in Business and Avoid Irreparable Injury 31. The violation of the ABCL and the Tied House Restrictions as alleged above and Landlord’s subsequent demand for a fixed-rent lease has deprived Tenant of the benefit of its bargain under the Lease and has interfered with and frustrated Tenant’s long-term ability to operate the premises as a “liquor license establishment” in accordance with the provisions of the existing Lease, and Landlord’s aforementioned acts and conduct are in material breach of Landlord’s express and implied obligations under the Lease. -6- RE\48504\0002\5507073v1 6 of 10 FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024 32. As a result of Landlord’s breach of its obligations under the Lease, and its continuing violation of the ABCL and Tied House Restrictions, including the refusal to sell or transfer its interest in Western New York, the owner of the Distillery, Tenant has suffered and will continue to suffer irreparable harm including, without limitation, the loss of its valuable leasehold, the constructive eviction of Tenant from the Premises, the imminent failure of Tenant’s business, and the loss of the goodwill built-up by Tenant in its over 13 years of operating its business. 33. Tenant is, as a result, bringing the instant action and requesting an order and judgment compelling Landlord to specifically comply with and perform its obligations under the Lease and to immediately cease and desist from any action or inaction that perpetuates violations of the Lease and/or applicable law, and precludes Tenant from enjoying the benefit of its bargain under the Lease. 34. Because of the nature of the loss Tenant will suffer, Tenant has no adequate remedy at law and will sustain irreparable harm and injury unless the relief requested on the instant motion and in the underlying action is granted. 35. Tenant is also requesting an injunction preliminarily and permanently enjoining Landlord from continuing, through its deliberate acts or inaction, to prevent Tenant from enjoying the benefit of its bargain under the Lease and using the Premises as a “liquor license establishment” under the net-profit-sharing arrangement the parties have been engaging in since 2010. 36. Unless and until Landlord is enjoined from acting in any way that would deprive Tenant of the benefit of the net profit arrangement as commemorated in the Lease, including, but not limited to, selling or transferring its interests in Western New York, Tenant will suffer irreparable harm including, without limitation, the loss of its valuable leasehold, the constructive eviction of Tenant from the Premises, the imminent failure of Tenant’s business, and the goodwill -7- RE\48504\0002\5507073v1 7 of 10 FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024 built-up by Tenant in its over 13 years of operating its business, and therefore, Tenant will lose the benefit of its bargain under the Lease. 37. Tenant is also seeking injunctive relief against O’Connell because he owns the minority interest in Western New York which interest has caused the Tied House Violation referred to above. 38. It seems so simple for O’Connor simply to either sell or transfer this minority interest to a person or entity with no interest in Landlord or the Lease so that there is no longer any conflict between the retail liquor license issued to Tenant and the manufacturer’s liquor license issued to the Distillery. 39. O’Connell, despite due demand, has refused to sell or transfer the shares in Western New York. 40. Instead, he apparently wants to deprive Tenant of the next profit-sharing arrangement under which the parties have operated for over 13 years and the benefit of Tenant’s bargain under the existing Lease. 41. O’Connell’s position in this regard is unconscionable and clearly the equities balance in Tenant’s favor here, where Tenant is simply seeking to enjoy the benefit of the bargain under the existing Lease, while O’Connell is improperly seeking to extract a better deal from Tenant under a fixed rent lease with new and different terms. 42. In the interim, and during the pendency of this motion and the underlying action, both Landlord and O’Connell should be temporarily and preliminarily enjoined from engaging in any action or inaction that would deprive Tenant of the ability to operate its “liquor license establishment” at the Premises as allowed pursuant to the Lease. If compliance with this injunctive remedy requires O’Connell to divest himself of his minority interest in Western New York or -8- RE\48504\0002\5507073v1 8 of 10 FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024 simply to transfer that interest into a trust or to some other family member, then so be it. It is a far lesser burden for O'Connell to do that than it is for Tenant to be irreparably injured by the loss of its business and the tremendous arnount of goodwill built up at the Premises by Tenant over the more than 13 years of its operations. 43. As for the accompanying request to consolidate the summary proceeding now pending in Civil Court, K.ings County with the instant action, the Court is respectfully referred to the affirmation of Norman Flitt which explains the procedural history and the rationale for consolidation. 44. As shown ihere, it is only in Supreme Court and in the instant action that the parties can obtain complete relief and the resolution of their entire dispute. Moreover, it is only in this action that Tenant can preserve its tenancy through equitable reliefand assure that Tenant is not driven involuntarily out of business before its rights and remedies can be adjudicated. 45. No prior request for the relief requested herein has been made. WHEREFORE, Tenant respectfully requests that the instant motion be granted in all respects, together with such other and further relief as the Court deemed just and proper. I affirm this _8th day of April,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. -9- RE\48s04\000 1\5507 0'1 3v I 9 of 10 FILED: NEW YORK COUNTY CLERK 04/09/2024 12:50 PM INDEX NO. 651761/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/09/2024 PRINTING SPECIFICATIONS STATEMENT I, Norman Flitt, hereby certify that, pursuant to Rule 202.8-b of Uniform Civil Rules for the Supreme Court, the foregoing Affirmation of Richard Dean contains a total of 2,590 words (as measured by the word processing system on which it was prepared), inclusive of point heading and footnotes and exclusive of pages containing the table of contents, table of authorities and this Certificate. Dated: New York, New York April 8, 2024 Norman Flitt -10- RE\48504\0002\5507073v1 10 of 10