Preview
FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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GROUP 5 LIMITED PARTNERSHIP,
Index No. 55240/2024
Plaintiff,
ANSWER WITH
-against- AFFIRMATIVE DEFENSES
AND COUNTERCLAIMS
BUTTERFIELD 8 WP LLC, JOHN GAZZOLA,
CHRIS COCO a/k/a CHRISTOPHER COCOZZIELLO,
Defendants,
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Defendant Butterfield 8 WP LLC, (“Tenant”), by and through its undersigned attorneys,
as and for its Answer to the Compliant of plaintiff Group 5 Limited Partnership (“Plaintiff”),
states as follows:
1. That at all times hereinafter mentioned, Plaintiff, GROUP 5 LIMITED
PARTNERSHIP (hereinafter “Plaintiff”) was and still is a foreign limited partnership created
and existing under the laws of the State of Connecticut and registered in the State of New York.
Answer: Tenant denies, based upon lack of knowledge and information to form a belief
as to, the allegation in Paragraph 1 of the Complaint.
2. That at all times hereinafter mentioned, Defendant, BUTTERFIELD 8 WP LLC
(hereinafter “Tenant”) was and still is a domestic limited liability company created and existing
under the laws of the State of New York.
Answer: With respect to the allegations in Paragraph 2 of the Complaint, Tenant admits
that it was a domestic limited liability company created and existing in the State of New
York; however, it is no longer in business operation.
3. Defendant JOHN GAZZOLA (hereinafter “Defendant Gazzola”), is a natural
person residing in the State of Connecticut.
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Answer: Tenant admits the allegations in Paragraph 3 of the Complaint.
4. That at all times hereinafter mentioned, Defendant Gazzola was a 50% owner of
the Defendant Butterfield.
Answer: Tenant denies the allegation in Paragraph 4 of the Complaint.
5. Defendant CHRIS COCO a/k/a CHRISTOPHER COCOZZIELLO (hereinafter
"Defendant Coco") is a natural person residing in the State of New York.
Answer: Tenant denies, based upon lack of knowledge and information to form a belief
as to, the allegation in Paragraph 5 of the Complaint.
6. That at all times hereinafter mentioned, Defendant Coco was a 50% owner of the
Defendant Butterfield.
Answer: Tenant denies the allegation in Paragraph 6 of the Complaint.
7. Plaintiff is the owner of a commercial building complex located at 147
Mamaroneck Avenue, White Plains, New York, and also known as 169 East Post Road, White
Plains, New York, located at the corner of Mamaroneck Avenue and East Post Road in White
Plains, New York, which corner area consisting of approximately 8,000 square feet is hereinafter
referred to as the “Premises.”
Answer: Tenant denies, based upon lack of knowledge and information to form a belief
as to, the allegation in Paragraph 7 of the Complaint.
8. On or about April 29, 2011, the Plaintiff and the Defendants entered into a
commercial lease agreement, with annexed rider, (hereinafter the “Lease”) for the lease of the
Premises for a term of twenty years commencing on May 1, 2011. A copy of the Lease is
annexed hereto as Exhibit “A” and made part hereof.
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Answer: Tenant denies the allegations in Paragraph 8 of the Complaint. Paragraph 8 of
the Complaint states that “Defendants” entered into a commercial lease agreement.
Tenant further denies the allegations of Paragraph 8 of the Complaint to the extent that it
references a purported Lease attached to the Complaint as its Exhibit A, however, there is
no Exhibit A attached to the Complaint. Accordingly, Tenant cannot provide a full and
complete response to Paragraph 8 of the Complaint and therefore, denies the allegations
contained therein as it lacks knowledge and information to form a belief.
9. On or about April 29, 2011, Defendants Gazzola and Coco executed a Lease
Guarantee whereby they personally and unconditionally guaranteed the full and faithful
performance of all terms and conditions of the Lease by the Tenant. A copy of the Lease
Guarantee is annexed hereto as Exhibit "B" and made a part hereof.
Answer: Tenant denies the allegations of Paragraph 8 of the Complaint. Paragraph 8 of
the Complaint references a purported Lease Guarantee attached to the Complaint as its
Exhibit B, however, there is no Exhibit B attached to the Complaint. Accordingly, Tenant
cannot provide a full and complete response to Paragraph 9 of the Complaint and
therefore, denies the allegations contained therein as it lacks knowledge and information
to form a belief.
10. Pursuant to the terms of the Lease, Defendants deposited $50,000.00 with
Plaintiff as a security for Defendants' faithful performance and observance of the terms,
provisions and conditions of the lease.
Answer: Tenant denies, based upon lack of knowledge and information to form a belief
as to, the allegation in Paragraph 10 of the Complaint. Paragraph 10 of the Complaint
references the “Lease,” which was not attached to the Complaint. Accordingly, Tenant
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cannot provide a full and complete response to Paragraph 10 of the Complaint and
therefore, denies the allegations contained therein as it lacks knowledge and information
to form a belief. Tenant further denies any deposit made on the part of Defendant
Gazzola or Defendant Coco, individually.
11. Defendants’ obligations pursuant to the Lease included, but were not limited to,
the timely payment of the monthly base rent pursuant to the schedule included in the Lease
together with a percentage of the Building’s monthly property taxes, insurance, and common
area maintenance (“CAM”) expenses.
Answer: Tenant denies, based upon lack of knowledge and information to form a belief
as to, the allegation in Paragraph 11 of the Complaint. Paragraph 11 of the Complaint
cannot be responded to as it references the “Lease,” which was not attached to the
Complaint and because it references the defined term “Building,” which term is not
defined in the Complaint. Accordingly, Tenant cannot provide a full and complete
response to Paragraph 11 of the Complaint and therefore, denies the allegations contained
therein as it lacks knowledge and information to form a belief.
12. Defendant’s obligations pursuant to the Lease included, but were not limited to,
compliance with all laws, orders and regulations of all state, federal and local governments and
the directions of any public officer pursuant to law.
Answer: Tenant denies the allegations of Paragraph 12 of the Complaint. Paragraph 12 of
the Complaint references the purported Lease attached to the Complaint as its Exhibit A,
however, there is no Exhibit A attached to the Complaint. Accordingly, Tenant cannot
provide a full and complete response to Paragraph 12 of the Complaint and therefore,
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denies the allegations contained therein as it lacks knowledge and information to form a
belief.
13. The schedule of the monthly base rent for the Premises started at $11,137.50
annually, beginning February 1, 2021, and increased 2% (two percent) per year for every year
thereafter.
Answer: Tenant denies, based upon lack of knowledge and information to form a belief
as to, the allegation in Paragraph 13 of the Complaint.
14. The Lease states that if Defendants default in fulfilling their obligations under the
Lease, Defendants shall pay all base rent and additional rent due up to the time of the Plaintiff's
re-entry to the Premises, together with Plaintiff's legal expenses, reasonable attorney's fees,
brokerage fees and/or expenses to prepare the Premises for re-rental.
Answer: Tenant denies the allegations of Paragraph 14 of the Complaint. Paragraph 14 of
the Complaint references the purported Lease attached to the Complaint as its Exhibit A,
however, there is no Exhibit A attached to the Complaint. Accordingly, Tenant cannot
provide a full and complete response to Paragraph 14 of the Complaint and therefore,
denies the allegations contained therein as it lacks knowledge and information to form a
belief.
15. The Lease states that if Defendants default in fulfilling their obligations under the
Lease, Defendants shall pay Plaintiff the difference between the rent due under the lease and the
net amount, if any, of rents collected by re-rental of the Premises as liquidated damages.
Answer: Tenant denies the allegations of Paragraph 15 of the Complaint. Paragraph 15 of
the Complaint references the purported Lease attached to the Complaint as its Exhibit A,
however, there is no Exhibit A attached to the Complaint. Accordingly, Tenant cannot
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provide a full and complete response to Paragraph 15 of the Complaint and therefore,
denies the allegations contained therein as it lacks knowledge and information to form a
belief.
16. Defendants defaulted on their obligations under the lease in that between June 1,
2017 and May 30, 2019, Defendants fell into two periods of recurring late payments.
Answer: Tenant denies the allegations of Paragraph 16 of the Complaint.
17. Defendants defaulted their obligations under the lease in that Defendants were
charged with more than twenty (20) violations of the New York State Alcoholic Beverage
Control Law (the "ABC Law") and the Rules of the State Liquor Authority (the "SLA"), between
May 22, 2016 and May 3, 2019 whereupon their liquor license was cancelled by the SLA on
January 22, 2020.
Answer: Tenant denies the allegations of Paragraph 17 of the Complaint.
18. Defendants failed to make timely payment of rent and other rents for June 2019.
Answer: Defendant denies the allegations of Paragraph 18 of the Complaint.
19. On or about July 13, 2019, without notice to the Plaintiff, Defendants vacated the
Premises in its entirety and ceased operation of the restaurant businesses at the Premises.
Answer: Tenant denies the allegations of Paragraph 19 of the Complaint. In or around
July 2019, Tenant ceased business operations; however, it had been in contact with
Plaintiff and, at Plaintiff’s request, Tenant provided Plaintiff with the keys, which
Plaintiff voluntarily accepted.
20. Plaintiff regained possession of the Premises on or about July 22, 2019.
Answer: Tenant admits that Plaintiff obtained possession of the Premises from Tenant in
or around July 22, 2019, denies knowledge and information to form a belief as to the
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exact date as it may be in dispute, and denies any negative inferences that may flow
therefrom.
21. Defendants have not made any payments for rent and other rents pursuant to the
Lease at any time since on or about May 10, 2019.
Answer: Tenant denies the allegations of Paragraph 21 of the Complaint and leave
Plaintiff to its proofs.
22. To date, Plaintiff has not been able to re-let the Premises despite considerable
expense and effort to market the Premises to a new tenant.
Answer: Tenant denies, based upon lack of knowledge and information to form a belief
as to, the allegation in Paragraph 22 of the Complaint.
AS AND FOR A FIRST CAUSE OF ACTION
23. Plaintiff repeats, reiterates and realleges each and every allegation set forth in
above as if fully set forth herein.
Answer: Tenant repeats and incorporates its responses to Paragraph 1-22 of the
Complaint.
24. All base rent and additional rent due up to the time of the Plaintiff's re-entry to the
premises, was $91,285.94.
Answer: Tenant denies the allegation in Paragraph 24 of the Complaint.
25. As a result Defendants’ defaults under the terms of the Lease of the foregoing,
Plaintiff has been damaged in the sum of $91,285.94, plus interest, costs and additional
attorney’s fees.
Answer: Tenant denies the allegation in Paragraph 25 of the Complaint.
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AS AND FOR A SECOND CAUSE OF ACTION
26. Plaintiff repeats, reiterates and realleges each and every allegation set forth in
above as if fully set forth herein.
Answer: Tenant repeats and incorporates its responses to Paragraph 1-25 of the
Complaint.
27. Pursuant to the Lease, in the case of Defendants default thereunder, re-entry,
and/or dispossess through summary proceedings or otherwise, Defendants remain liable for
liquated damages which constitute the deficiency between the rent set forth in the Lease and the
net amount, if any, of rents collected upon re-letting the Premises, for the balance of the term of
the Lease, together with legal expenses, brokerage fees, advertising fees, and fees for keeping the
premises in good order or for preparing the same for re-letting.
Answer: Tenant denies the allegations of Paragraph 27 of the Complaint. Paragraph 27 of
the Complaint references the purported Lease attached to the Complaint as its Exhibit A,
however, there is no Exhibit A attached to the Complaint. Accordingly, Tenant cannot
provide a full and complete response to Paragraph 27 of the Complaint and therefore,
denies the allegations contained therein as it lacks knowledge and information to form a
belief. Tenant denies any allegation of liability to Plaintiff.
28. Defendants vacated the Premises prior to the conclusion of the lease term set forth
in the Lease.
Answer: Tenant denies the allegations of Paragraph 28 of the Complaint. Paragraph 28 of
the Complaint references a purported Lease attached to Complaint as its Exhibit A,
however, there is no Exhibit A attached to the Complaint. Accordingly, Tenant cannot
provide a full and complete response to Paragraph 28 of the Complaint and therefore,
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denies the allegations contained therein as it lacks knowledge and information to form a
belief. To the extent that Tenant had a lease agreement with Plaintiff for the Premises,
Tenant denies vacating prior to the conclusion of the lease term because, among other
reasons, Tenant’s vacating was caused by, requested by, and accepted by, Plaintiff.
Tenant denies any allegation of liability to Plaintiff.
29. Plaintiff has been unable re-let the Premises to date and rents, other rents and fees
that constitute damages for the time from Plaintiff obtaining possession of the Premises to the
present total is $1,630,019.88 and the estimated cost to restore the premises to rentable condition
is over $250,000.00.
Answer: Tenant denies, based upon lack of knowledge and information to form a belief
as to, the allegation in Paragraph 29 of the Complaint with respect to Plaintiff’s ability to
re-let, and denies any allegations of damages owed to Plaintiff. Tenant denies any
allegation of liability to Plaintiff.
30. As a result of the foregoing Plaintiff has been damaged in the sum of
$1,880,019.88 plus interest, costs, disbursements and additional attorney's fees.
Answer: Tenant denies the allegations in Paragraph 30 of the Complaint.
AS AND FOR A THIRD CAUSE OF ACTION
31. Plaintiff repeats, reiterates and realleges each and every allegation set forth in
above as if fully set forth herein.
Answer: Tenant repeats and incorporates its responses to Paragraph 1-30 of the
Complaint.
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32. Defendant Gazzola executed a guaranty in connection with the Lease, personally
guaranteeing to Plaintiff full and faithful performance of all terms and conditions contained in
the Lease.
Answer: Tenant denies the allegations of Paragraph 32 of the Complaint. Paragraph 32 of
the Complaint references a purported Lease Guarantee attached to Complaint as its
Exhibit B, however, there is no Exhibit B attached to the Complaint. Accordingly, Tenant
cannot provide a full and complete response to Paragraph 32 of the Complaint and
therefore, denies the allegations contained therein as it lacks knowledge and information
to form a belief. Tenant denies any allegation of liability to Plaintiff.
33. Defendants defaulted on their obligations under the Lease.
Answer: Tenant denies the allegations in Paragraph 33 of the Complaint.
34. Defendant Gazzola is unconditionally liable for the amounts owed to the Plaintiff
by the Defendants.
Answer: Tenant denies, based upon lack of knowledge and information to form a belief
as to, the allegation in Paragraph 34 of the Complaint.
35. Defendant Gazzola is personally liable to Plaintiff for the sum of $91,285.94 for
all base rent and additional rent due up to the time of the Plaintiff's re-entry to the premises, plus
interest, costs, disbursements and additional attorney's fees.
Answer: Tenant denies the allegations in Paragraph 35 of the Complaint.
36. Defendant Gazzola is personally liable to Plaintiff for the sum of $1,880,019.88
for rents, other rents and fees that constitute liquidated damages for the time from Plaintiff
obtaining possession of the Premises to the present together with estimated costs of restoring the
premises to rentable condition, plus interest, costs, disbursements and additional attorney's fees.
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Answer: Tenant denies the allegations in Paragraph 36 of the Complaint.
37. As a result of the foregoing, Defendant Gazzola is personally liable to Plaintiff for
the sum of $1,971,305.82, plus interest, costs, disbursements and additional attorney's fees.
Answer: Tenant denies the allegations in Paragraph 37 of the Complaint.
AS AND FOR A FIFTH CAUSE OF ACTION
38. Plaintiff repeats, reiterates and realleges each and every allegation set forth in
above as if fully set forth herein.
Answer: Tenant repeats and incorporates its responses to Paragraph 1-37 of the
Complaint.
39. Defendant Coco executed a guaranty in connection with the Lease, personally
guaranteeing to Plaintiff full and faithful performance of all terms and conditions contained in
the Lease.
Answer: Tenant denies the allegations of Paragraph 39 of the Complaint. Paragraph 39 of
the Complaint references a purported Lease Guarantee attached to Complaint as its
Exhibit B, however, there is no Exhibit B attached to the Complaint. Accordingly, Tenant
cannot provide a full and complete response to Paragraph 39 of the Complaint and
therefore, denies the allegations contained therein as it lacks knowledge and information
to form a belief. Tenant denies any allegation of liability to Plaintiff.
40. Defendants defaulted on their obligations under the Lease.
Answer: Tenant denies the allegations in Paragraph 40 of the Complaint.
41. Defendant Coco is unconditionally liable for the amounts owed to the Plaintiff by
the Defendants.
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Answer: Tenant denies, based upon lack of knowledge and information to form a belief
as to, the allegation in Paragraph 41 of the Complaint.
42. Defendant Coco is personally liable to Plaintiff for the sum of $91,285.94 for all
base rent and additional rent due up to the time of the Plaintiff's re-entry to the premises, plus
interest, costs, disbursements and additional attorney's fees.
Answer: Tenant denies the allegations in Paragraph 42 of the Complaint.
43. Defendant Coco is personally liable to Plaintiff for the sum of $1,880,019.88 for
rents, other rents and fees that constitute liquidated damages for the time from Plaintiff obtaining
possession of the Premises to the present together with estimated costs of restoring the premises
to rentable condition, plus interest, costs, disbursements and additional attorney's fees. As a
result of the foregoing, Defendant Coco is personally liable to Plaintiff for the sum of
$1,971,305.82, plus interest, costs, disbursements and additional attorney's fees.
Answer: Tenant denies the allegations in Paragraph 43 of the Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
The Complaint is barred by the doctrines of waiver and/or estoppel.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
The Complaint is barred by Plaintiff’s failure to mitigate its damages.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
The Complaint is barred by the doctrine of unclean hands.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
Tenant is not in default on any purported lease with Plaintiff.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
The Complaint fails to state a cause of action upon which relief can be granted.
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AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
The Complaint fails to state a cause of action with particularity required by CPLR 3013.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
The Complaint is barred by the doctrine of accord and satisfaction.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
The Complaint is barred by documentary evidence.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
Plaintiff was in default in its obligations under the Lease, which constitute material
breaches of the lease.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
Plaintiff constructively evicted Tenant from the Premises thereby causing an abatement
event resulting in a limitation and/or full release of any potential liability on the part of Tenant.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
Plaintiff has failed to provide necessary and contractual predicate notices as a condition
precedent to any relief sought.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
Any purported damages incurred by Plaintiff are the result of its own culpable conduct
which absolves any liability on the part of Tenant.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by the doctrine of surrender and/or surrender by operation of
law.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by its own material breaches and other breaches.
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AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by its improper and ineffective termination of the lease
between it and Tenant.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by the applicable statute of limitations.
RESERVATION OF ADDITIONAL AFFIRMATIVE DEFENSES
Tenant reserves the right to assert and rely upon such other and further defenses as may
become available during pretrial proceedings in this action and hereby reserves all rights to
amend this Answer and all such defenses herein in accordance with CPLR 3025(b) or otherwise
under the applicable law.
COUNTERCLAIMS
Tenant, for its Counterclaim against Plaintiff, alleges as follows:
The Parties
1. Plaintiff, upon information and belief, was and still is a foreign limited
partnership created and existing under the laws of the State of Connecticut and registered in the
State of New York
2. Tenant was a domestic limited liability company created and existing under the
laws of the State of New York, which has ceased operation.
Facts and Background
3. In or around May 1, 2011, Plaintiff and Tenant entered into a lease agreement (the
“Lease”), whereby Plaintiff leased to Tenant approximately 8,100 square feet of ground floor
space and approximately 3,000 square feet of basement area at 147 Mamaroneck Avenue, White
Plains, New York (the “Premises”).
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4. The Lease was for a twenty-year term through April 30, 2031, unless earlier
terminated.
5. The Premises was previously a Federal Express/Kinkos.
6. Upon entering into the Lease, Tenant expended approximately $3,000,000 in
converting the Premises from a Federal Express/Kinkos into two separate restaurants and
taverns.
7. One of the restaurants and taverns served barbeque-inspired food and drinks
under the Brother Jimmy’s Franchising Inc. franchise system (“Brother Jimmy’s”).
8. The second restaurant did business under the name Lola’s Mexican Restaurant
serving Mexican style food and drink (“Lola’s”).
9. In 2018, Tenant determined in its business judgment that the restaurant operating
as Brother Jimmy’s would be more profitable if the franchise agreement was terminated and that
portion of the space could be converted to another tavern-like concept.
10. Tenant engaged in several months of negotiations with Plaintiff in efforts to
renovate, rebrand, and ultimately assign the Lease to a new related entity. Under these plans,
Lola’s would remain operating the same as usual.
11. In or around June 2019, Plaintiff informed Tenant it was suspending review of the
renovations.
12. Shortly after informing Tenant that Plaintiff had suspended review of the
renovations, Plaintiff further informed Tenant that it was investigating Tenant’s overall conduct,
intended to seek eviction, and offered a release of the guarantees if Tenant agreed to the
termination of the Lease, providing at 24-hour period to accept the offer.
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13. Ultimately, Plaintiff unreasonably withheld consent for any alterations or
assignment, in violation of the terms of the Lease.
14. Instead, in the midst of ongoing negotiations, notified Tenant, albeit defectively,
of its intention to terminate the Lease and attempted to serve, albeit improperly, a “3 Day Notice
of Termination” dated June 24, 2019.
15. There were no valid grounds for the “3 Day Notice of Termination.”
16. Plaintiff did not follow the proper procedure with respect to service of the “3 Day
Notice of Termination.”
17. Plaintiff failed to provide proper written notice of default and right to cure, as
required by the Lease, prior to the attempted service of the “3 Day Notice of Termination.”
18. The only purported notice of default provided by Plaintiff at all was an email from
November 2018, which did not comply with the notice provisions of the Lease.
19. The alleged grounds for termination in the “3 Day Notice of Termination” were:
(I) the purported failure to cure an alleged default from November, 2018 based upon subsequent
independent events of which no proper notice of cure was provided, in violation of the terms of
the Lease; and (ii) for alleged “Recurring Late Payments” as defined in the Lease, despite the
fact that Plaintiff has refused to detail the alleged Recurring Late Payments and that Plaintiff has
waived any claim to late payments by virtue of waiving same and entering into payment plans
that had been fully satisfied.
20. These acts not only harmed Tenant because it was thereby unable to rebrand the
restaurant, but the manner of delivery of the “3 Day Notice of Termination,” which was given to
an employee not authorized to accept service, resulted in a number of employees walking out of
the restaurant.
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21. Subsequent to the defective service of the “3 Day Notice of Termination,”
Plaintiff made clear to Tenant that it deemed the Lease terminated and that Tenant had to cease
doing business, close the restaurants, and vacate the Premises under the threat of the
commencement of landlord tenant proceedings to evict Tenant.
22. Upon information and belief, the Plaintiff’s true motives were to remove Tenant
from the leased Premises in the hopes of re-letting at a higher monthly rental price after Tenant
had already invested over $3,000,000 in the premises converting it from a Federal
Express/Kinkos to functioning, and previously profitable, taverns and restaurants.
23. By virtue of the harm caused by Plaintiff to Tenant’s business by the manner in
which Plaintiff served the purported “3 Day Notice of Termination,” Plaintiff unreasonably
withholding its consent to Tenant to rebrand the portion of the Premises operating as Brother
Jimmy’s, and Plaintiff’s demands that Tenant close and vacate the Premises under the threat of
litigation, Tenant was required to close down its business in or around July 2019.
24. If not for the conduct of Plaintiff, and if not for Plaintiff misleading Tenant into
believing Plaintiff would not unreasonably withhold its consent for Tenant to rebrand, Tenant
could have continued to operate the Brother Jimmy’s portion of the restaurant, in addition to
Lola’s.
25. Instead, Tenant was forced by Plaintiff to close down both businesses.
26. Plaintiff was aware that Tenant had ceased operations and was vacating the
subject premises.
27. Plaintiff accepted the tender of the keys no later than in the month of July 2019, if
not earlier, and conducted a walkthrough of the Premises in later July.
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28. During this time, Plaintiff claimed that Tenant was not current on rent; however,
Plaintiff could not provide a complete accounting of the amount due and owing each month.
29. Upon information and belief the monthly charges claimed due by Plaintiff are
inaccurate and are unsupported, resulting in excessive and inflated amounts not owed by Tenant.
30. Upon information and belief, prior monthly charges demanded by Plaintiff and
paid by Tenant were inaccurate and cannot be supported by Plaintiff, resulting in excessive and
inflated amounts not owed by Tenant.
FIRST COUNTERCLAIM
(Breach of Lease and of Covenant of Good Faith and Fair Dealing)
31. Tenant repeats and realleges the above paragraphs as is fully restated herein.
32. The parties, for valuable consideration, entered into the Lease.
33. Plaintiff breached the foregoing covenants by, among other things, (i) engaging in
conduct that prevented Tenant from the full use and enjoyment of the Premises, (ii) improperly
accusing Tenant of a default on the Lease, (iii) unreasonably withholding consent, (iv)
improperly seeking to terminate the Lease, and (v) failure to properly itemize and account
monthly rent and CAM charges.
34. Tenant has performed all obligations it has been required to perform under the
Lease, except for any obligations for which performance has been excused by Plaintiff’s
breaches.
35. As a proximate result of Plaintiff’s breaches of the Lease and of the covenant of
good faith and fair dealing, Tenant has been harmed and has suffered monetary damages in an
amount to be determined at trial.
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SECOND COUNTERCLAIM
(Constructive Eviction)
36. Tenant repeats and realleges the above paragraphs as if fully restated herein.
37. Plaintiff has failed to perform its obligations under the Lease and has interfered
with and prevented Tenant’s peaceful and quiet enjoyment of the Premises by improperly
attempting to terminate the Lease and improperly serving a Notice of Termination in such a
manner as to harm Tenant’s business, all of which has resulted in Plaintiff's constructive eviction
from the Premises.
38. Tenant has been constructively evicted from use of the Premises because Plaintiff
has breached the covenant of quiet enjoyment.
39. As a result of Plaintiff’s failures in this regard, Tenant is entitled to damages in an
amount to be determined at trial.
THIRD COUNTERCLAIM
(Breach of Covenant of Quiet Enjoyment)
40. Tenant repeats and realleges the above paragraphs as if fully restated herein.
41. Implicit in terms of the Lease is the covenant of quiet enjoyment.
42. Plaintiff has breached the covenant of quiet enjoyment because it has interfered
with and prevented Tenant’s peaceful and quiet enjoyment of the Premises by improperly
attempting to terminate the Lease and improperly serving a Notice of Termination in such a
manner as to harm Tenant’s business.
FOURTH COUNTERCLAIM
(Declaratory Judgment)
43. Tenant repeats and realleges the above paragraphs as if fully restated herein.
44. In or around July 2019, Tenant vacated and surrendered the Premises to Plaintiff
in broom-clean condition, which was accepted by Plaintiff without objection.
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45. Subsequently the parties conducted themselves as if the Lease had been
terminated.
46. As a result of the surrender, Tenant owed no further obligations under the Lease.
47. Plaintiff did not dispute Tenant’s surrender and accepted possession of the
Premises.
48. Tenant requires a declaration that it has surrendered the Premises to Plaintiff, or
that a surrender by operation of law has occurred, and Tenant owes no further obligations to
Plaintiff under the Lease.
WHEREFORE, Tenant respectfully requests:
i. Dismissal of the Complaint; and
ii. On the first through third counterclaims awarding Tenant monetary damages
in an amount to be determined at trial; and
iii. On the fourth counterclaim, a declaratory judgment of surrender or surrender
by operation of law and that Tenant has no financial obligations to Plaintiff as
of the date of the surrender; and
iv. Attorneys’ fees and costs; and
v. Such other and further relief as this Court deems just and proper.
Dated: New York, NY
March 5, 2024
OFFIT KURMAN P.A.
__________________
Stephen M. Forte
590 Madison Ave., 6th Fl.
New York, NY 10022
Tel: 929.476.0042
Stephen.Forte@OffitKurman.com
Attorneys for Defendant
Butterfield 8 WP LLC
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Verification
I am the attorney for defendant Butterfield 8 WP LLC in this action. I have read the annexed
Answer with Affirmative Defenses and Counterclaims, and its factual contents are true to my
personal knowledge, except as to the matters alleged on information and belief, and as to those
matters, I believe them to be true. The grounds for my belief as to all matters not stated upon my
personal knowledge are correspondence and other writings furnished to me by Butterfield 8 WP
LLC and discussion with Butterfield 8 WP LLC.
The reason why this verification is not made by Butterfield 8 WP LLC is that Butterfield
8 WP LLC is not in the county where I have my principal office.
Dated: March 5, 2024
New York, New York
_________________
Stephen M. Forte
4860-7528-7466, v. 4
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Preview
FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ---------------------------------------------------------------------x GROUP 5 LIMITED PARTNERSHIP, Index No. 55240/2024 Plaintiff, ANSWER WITH -against- AFFIRMATIVE DEFENSES AND COUNTERCLAIMS BUTTERFIELD 8 WP LLC, JOHN GAZZOLA, CHRIS COCO a/k/a CHRISTOPHER COCOZZIELLO, Defendants, ---------------------------------------------------------------------x Defendant Butterfield 8 WP LLC, (“Tenant”), by and through its undersigned attorneys, as and for its Answer to the Compliant of plaintiff Group 5 Limited Partnership (“Plaintiff”), states as follows: 1. That at all times hereinafter mentioned, Plaintiff, GROUP 5 LIMITED PARTNERSHIP (hereinafter “Plaintiff”) was and still is a foreign limited partnership created and existing under the laws of the State of Connecticut and registered in the State of New York. Answer: Tenant denies, based upon lack of knowledge and information to form a belief as to, the allegation in Paragraph 1 of the Complaint. 2. That at all times hereinafter mentioned, Defendant, BUTTERFIELD 8 WP LLC (hereinafter “Tenant”) was and still is a domestic limited liability company created and existing under the laws of the State of New York. Answer: With respect to the allegations in Paragraph 2 of the Complaint, Tenant admits that it was a domestic limited liability company created and existing in the State of New York; however, it is no longer in business operation. 3. Defendant JOHN GAZZOLA (hereinafter “Defendant Gazzola”), is a natural person residing in the State of Connecticut. 1 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 Answer: Tenant admits the allegations in Paragraph 3 of the Complaint. 4. That at all times hereinafter mentioned, Defendant Gazzola was a 50% owner of the Defendant Butterfield. Answer: Tenant denies the allegation in Paragraph 4 of the Complaint. 5. Defendant CHRIS COCO a/k/a CHRISTOPHER COCOZZIELLO (hereinafter "Defendant Coco") is a natural person residing in the State of New York. Answer: Tenant denies, based upon lack of knowledge and information to form a belief as to, the allegation in Paragraph 5 of the Complaint. 6. That at all times hereinafter mentioned, Defendant Coco was a 50% owner of the Defendant Butterfield. Answer: Tenant denies the allegation in Paragraph 6 of the Complaint. 7. Plaintiff is the owner of a commercial building complex located at 147 Mamaroneck Avenue, White Plains, New York, and also known as 169 East Post Road, White Plains, New York, located at the corner of Mamaroneck Avenue and East Post Road in White Plains, New York, which corner area consisting of approximately 8,000 square feet is hereinafter referred to as the “Premises.” Answer: Tenant denies, based upon lack of knowledge and information to form a belief as to, the allegation in Paragraph 7 of the Complaint. 8. On or about April 29, 2011, the Plaintiff and the Defendants entered into a commercial lease agreement, with annexed rider, (hereinafter the “Lease”) for the lease of the Premises for a term of twenty years commencing on May 1, 2011. A copy of the Lease is annexed hereto as Exhibit “A” and made part hereof. 2 2 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 Answer: Tenant denies the allegations in Paragraph 8 of the Complaint. Paragraph 8 of the Complaint states that “Defendants” entered into a commercial lease agreement. Tenant further denies the allegations of Paragraph 8 of the Complaint to the extent that it references a purported Lease attached to the Complaint as its Exhibit A, however, there is no Exhibit A attached to the Complaint. Accordingly, Tenant cannot provide a full and complete response to Paragraph 8 of the Complaint and therefore, denies the allegations contained therein as it lacks knowledge and information to form a belief. 9. On or about April 29, 2011, Defendants Gazzola and Coco executed a Lease Guarantee whereby they personally and unconditionally guaranteed the full and faithful performance of all terms and conditions of the Lease by the Tenant. A copy of the Lease Guarantee is annexed hereto as Exhibit "B" and made a part hereof. Answer: Tenant denies the allegations of Paragraph 8 of the Complaint. Paragraph 8 of the Complaint references a purported Lease Guarantee attached to the Complaint as its Exhibit B, however, there is no Exhibit B attached to the Complaint. Accordingly, Tenant cannot provide a full and complete response to Paragraph 9 of the Complaint and therefore, denies the allegations contained therein as it lacks knowledge and information to form a belief. 10. Pursuant to the terms of the Lease, Defendants deposited $50,000.00 with Plaintiff as a security for Defendants' faithful performance and observance of the terms, provisions and conditions of the lease. Answer: Tenant denies, based upon lack of knowledge and information to form a belief as to, the allegation in Paragraph 10 of the Complaint. Paragraph 10 of the Complaint references the “Lease,” which was not attached to the Complaint. Accordingly, Tenant 3 3 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 cannot provide a full and complete response to Paragraph 10 of the Complaint and therefore, denies the allegations contained therein as it lacks knowledge and information to form a belief. Tenant further denies any deposit made on the part of Defendant Gazzola or Defendant Coco, individually. 11. Defendants’ obligations pursuant to the Lease included, but were not limited to, the timely payment of the monthly base rent pursuant to the schedule included in the Lease together with a percentage of the Building’s monthly property taxes, insurance, and common area maintenance (“CAM”) expenses. Answer: Tenant denies, based upon lack of knowledge and information to form a belief as to, the allegation in Paragraph 11 of the Complaint. Paragraph 11 of the Complaint cannot be responded to as it references the “Lease,” which was not attached to the Complaint and because it references the defined term “Building,” which term is not defined in the Complaint. Accordingly, Tenant cannot provide a full and complete response to Paragraph 11 of the Complaint and therefore, denies the allegations contained therein as it lacks knowledge and information to form a belief. 12. Defendant’s obligations pursuant to the Lease included, but were not limited to, compliance with all laws, orders and regulations of all state, federal and local governments and the directions of any public officer pursuant to law. Answer: Tenant denies the allegations of Paragraph 12 of the Complaint. Paragraph 12 of the Complaint references the purported Lease attached to the Complaint as its Exhibit A, however, there is no Exhibit A attached to the Complaint. Accordingly, Tenant cannot provide a full and complete response to Paragraph 12 of the Complaint and therefore, 4 4 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 denies the allegations contained therein as it lacks knowledge and information to form a belief. 13. The schedule of the monthly base rent for the Premises started at $11,137.50 annually, beginning February 1, 2021, and increased 2% (two percent) per year for every year thereafter. Answer: Tenant denies, based upon lack of knowledge and information to form a belief as to, the allegation in Paragraph 13 of the Complaint. 14. The Lease states that if Defendants default in fulfilling their obligations under the Lease, Defendants shall pay all base rent and additional rent due up to the time of the Plaintiff's re-entry to the Premises, together with Plaintiff's legal expenses, reasonable attorney's fees, brokerage fees and/or expenses to prepare the Premises for re-rental. Answer: Tenant denies the allegations of Paragraph 14 of the Complaint. Paragraph 14 of the Complaint references the purported Lease attached to the Complaint as its Exhibit A, however, there is no Exhibit A attached to the Complaint. Accordingly, Tenant cannot provide a full and complete response to Paragraph 14 of the Complaint and therefore, denies the allegations contained therein as it lacks knowledge and information to form a belief. 15. The Lease states that if Defendants default in fulfilling their obligations under the Lease, Defendants shall pay Plaintiff the difference between the rent due under the lease and the net amount, if any, of rents collected by re-rental of the Premises as liquidated damages. Answer: Tenant denies the allegations of Paragraph 15 of the Complaint. Paragraph 15 of the Complaint references the purported Lease attached to the Complaint as its Exhibit A, however, there is no Exhibit A attached to the Complaint. Accordingly, Tenant cannot 5 5 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 provide a full and complete response to Paragraph 15 of the Complaint and therefore, denies the allegations contained therein as it lacks knowledge and information to form a belief. 16. Defendants defaulted on their obligations under the lease in that between June 1, 2017 and May 30, 2019, Defendants fell into two periods of recurring late payments. Answer: Tenant denies the allegations of Paragraph 16 of the Complaint. 17. Defendants defaulted their obligations under the lease in that Defendants were charged with more than twenty (20) violations of the New York State Alcoholic Beverage Control Law (the "ABC Law") and the Rules of the State Liquor Authority (the "SLA"), between May 22, 2016 and May 3, 2019 whereupon their liquor license was cancelled by the SLA on January 22, 2020. Answer: Tenant denies the allegations of Paragraph 17 of the Complaint. 18. Defendants failed to make timely payment of rent and other rents for June 2019. Answer: Defendant denies the allegations of Paragraph 18 of the Complaint. 19. On or about July 13, 2019, without notice to the Plaintiff, Defendants vacated the Premises in its entirety and ceased operation of the restaurant businesses at the Premises. Answer: Tenant denies the allegations of Paragraph 19 of the Complaint. In or around July 2019, Tenant ceased business operations; however, it had been in contact with Plaintiff and, at Plaintiff’s request, Tenant provided Plaintiff with the keys, which Plaintiff voluntarily accepted. 20. Plaintiff regained possession of the Premises on or about July 22, 2019. Answer: Tenant admits that Plaintiff obtained possession of the Premises from Tenant in or around July 22, 2019, denies knowledge and information to form a belief as to the 6 6 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 exact date as it may be in dispute, and denies any negative inferences that may flow therefrom. 21. Defendants have not made any payments for rent and other rents pursuant to the Lease at any time since on or about May 10, 2019. Answer: Tenant denies the allegations of Paragraph 21 of the Complaint and leave Plaintiff to its proofs. 22. To date, Plaintiff has not been able to re-let the Premises despite considerable expense and effort to market the Premises to a new tenant. Answer: Tenant denies, based upon lack of knowledge and information to form a belief as to, the allegation in Paragraph 22 of the Complaint. AS AND FOR A FIRST CAUSE OF ACTION 23. Plaintiff repeats, reiterates and realleges each and every allegation set forth in above as if fully set forth herein. Answer: Tenant repeats and incorporates its responses to Paragraph 1-22 of the Complaint. 24. All base rent and additional rent due up to the time of the Plaintiff's re-entry to the premises, was $91,285.94. Answer: Tenant denies the allegation in Paragraph 24 of the Complaint. 25. As a result Defendants’ defaults under the terms of the Lease of the foregoing, Plaintiff has been damaged in the sum of $91,285.94, plus interest, costs and additional attorney’s fees. Answer: Tenant denies the allegation in Paragraph 25 of the Complaint. 7 7 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 AS AND FOR A SECOND CAUSE OF ACTION 26. Plaintiff repeats, reiterates and realleges each and every allegation set forth in above as if fully set forth herein. Answer: Tenant repeats and incorporates its responses to Paragraph 1-25 of the Complaint. 27. Pursuant to the Lease, in the case of Defendants default thereunder, re-entry, and/or dispossess through summary proceedings or otherwise, Defendants remain liable for liquated damages which constitute the deficiency between the rent set forth in the Lease and the net amount, if any, of rents collected upon re-letting the Premises, for the balance of the term of the Lease, together with legal expenses, brokerage fees, advertising fees, and fees for keeping the premises in good order or for preparing the same for re-letting. Answer: Tenant denies the allegations of Paragraph 27 of the Complaint. Paragraph 27 of the Complaint references the purported Lease attached to the Complaint as its Exhibit A, however, there is no Exhibit A attached to the Complaint. Accordingly, Tenant cannot provide a full and complete response to Paragraph 27 of the Complaint and therefore, denies the allegations contained therein as it lacks knowledge and information to form a belief. Tenant denies any allegation of liability to Plaintiff. 28. Defendants vacated the Premises prior to the conclusion of the lease term set forth in the Lease. Answer: Tenant denies the allegations of Paragraph 28 of the Complaint. Paragraph 28 of the Complaint references a purported Lease attached to Complaint as its Exhibit A, however, there is no Exhibit A attached to the Complaint. Accordingly, Tenant cannot provide a full and complete response to Paragraph 28 of the Complaint and therefore, 8 8 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 denies the allegations contained therein as it lacks knowledge and information to form a belief. To the extent that Tenant had a lease agreement with Plaintiff for the Premises, Tenant denies vacating prior to the conclusion of the lease term because, among other reasons, Tenant’s vacating was caused by, requested by, and accepted by, Plaintiff. Tenant denies any allegation of liability to Plaintiff. 29. Plaintiff has been unable re-let the Premises to date and rents, other rents and fees that constitute damages for the time from Plaintiff obtaining possession of the Premises to the present total is $1,630,019.88 and the estimated cost to restore the premises to rentable condition is over $250,000.00. Answer: Tenant denies, based upon lack of knowledge and information to form a belief as to, the allegation in Paragraph 29 of the Complaint with respect to Plaintiff’s ability to re-let, and denies any allegations of damages owed to Plaintiff. Tenant denies any allegation of liability to Plaintiff. 30. As a result of the foregoing Plaintiff has been damaged in the sum of $1,880,019.88 plus interest, costs, disbursements and additional attorney's fees. Answer: Tenant denies the allegations in Paragraph 30 of the Complaint. AS AND FOR A THIRD CAUSE OF ACTION 31. Plaintiff repeats, reiterates and realleges each and every allegation set forth in above as if fully set forth herein. Answer: Tenant repeats and incorporates its responses to Paragraph 1-30 of the Complaint. 9 9 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 32. Defendant Gazzola executed a guaranty in connection with the Lease, personally guaranteeing to Plaintiff full and faithful performance of all terms and conditions contained in the Lease. Answer: Tenant denies the allegations of Paragraph 32 of the Complaint. Paragraph 32 of the Complaint references a purported Lease Guarantee attached to Complaint as its Exhibit B, however, there is no Exhibit B attached to the Complaint. Accordingly, Tenant cannot provide a full and complete response to Paragraph 32 of the Complaint and therefore, denies the allegations contained therein as it lacks knowledge and information to form a belief. Tenant denies any allegation of liability to Plaintiff. 33. Defendants defaulted on their obligations under the Lease. Answer: Tenant denies the allegations in Paragraph 33 of the Complaint. 34. Defendant Gazzola is unconditionally liable for the amounts owed to the Plaintiff by the Defendants. Answer: Tenant denies, based upon lack of knowledge and information to form a belief as to, the allegation in Paragraph 34 of the Complaint. 35. Defendant Gazzola is personally liable to Plaintiff for the sum of $91,285.94 for all base rent and additional rent due up to the time of the Plaintiff's re-entry to the premises, plus interest, costs, disbursements and additional attorney's fees. Answer: Tenant denies the allegations in Paragraph 35 of the Complaint. 36. Defendant Gazzola is personally liable to Plaintiff for the sum of $1,880,019.88 for rents, other rents and fees that constitute liquidated damages for the time from Plaintiff obtaining possession of the Premises to the present together with estimated costs of restoring the premises to rentable condition, plus interest, costs, disbursements and additional attorney's fees. 10 10 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 Answer: Tenant denies the allegations in Paragraph 36 of the Complaint. 37. As a result of the foregoing, Defendant Gazzola is personally liable to Plaintiff for the sum of $1,971,305.82, plus interest, costs, disbursements and additional attorney's fees. Answer: Tenant denies the allegations in Paragraph 37 of the Complaint. AS AND FOR A FIFTH CAUSE OF ACTION 38. Plaintiff repeats, reiterates and realleges each and every allegation set forth in above as if fully set forth herein. Answer: Tenant repeats and incorporates its responses to Paragraph 1-37 of the Complaint. 39. Defendant Coco executed a guaranty in connection with the Lease, personally guaranteeing to Plaintiff full and faithful performance of all terms and conditions contained in the Lease. Answer: Tenant denies the allegations of Paragraph 39 of the Complaint. Paragraph 39 of the Complaint references a purported Lease Guarantee attached to Complaint as its Exhibit B, however, there is no Exhibit B attached to the Complaint. Accordingly, Tenant cannot provide a full and complete response to Paragraph 39 of the Complaint and therefore, denies the allegations contained therein as it lacks knowledge and information to form a belief. Tenant denies any allegation of liability to Plaintiff. 40. Defendants defaulted on their obligations under the Lease. Answer: Tenant denies the allegations in Paragraph 40 of the Complaint. 41. Defendant Coco is unconditionally liable for the amounts owed to the Plaintiff by the Defendants. 11 11 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 Answer: Tenant denies, based upon lack of knowledge and information to form a belief as to, the allegation in Paragraph 41 of the Complaint. 42. Defendant Coco is personally liable to Plaintiff for the sum of $91,285.94 for all base rent and additional rent due up to the time of the Plaintiff's re-entry to the premises, plus interest, costs, disbursements and additional attorney's fees. Answer: Tenant denies the allegations in Paragraph 42 of the Complaint. 43. Defendant Coco is personally liable to Plaintiff for the sum of $1,880,019.88 for rents, other rents and fees that constitute liquidated damages for the time from Plaintiff obtaining possession of the Premises to the present together with estimated costs of restoring the premises to rentable condition, plus interest, costs, disbursements and additional attorney's fees. As a result of the foregoing, Defendant Coco is personally liable to Plaintiff for the sum of $1,971,305.82, plus interest, costs, disbursements and additional attorney's fees. Answer: Tenant denies the allegations in Paragraph 43 of the Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE The Complaint is barred by the doctrines of waiver and/or estoppel. AS AND FOR A SECOND AFFIRMATIVE DEFENSE The Complaint is barred by Plaintiff’s failure to mitigate its damages. AS AND FOR A THIRD AFFIRMATIVE DEFENSE The Complaint is barred by the doctrine of unclean hands. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE Tenant is not in default on any purported lease with Plaintiff. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE The Complaint fails to state a cause of action upon which relief can be granted. 12 12 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 AS AND FOR A SIXTH AFFIRMATIVE DEFENSE The Complaint fails to state a cause of action with particularity required by CPLR 3013. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE The Complaint is barred by the doctrine of accord and satisfaction. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE The Complaint is barred by documentary evidence. AS AND FOR A NINTH AFFIRMATIVE DEFENSE Plaintiff was in default in its obligations under the Lease, which constitute material breaches of the lease. AS AND FOR A TENTH AFFIRMATIVE DEFENSE Plaintiff constructively evicted Tenant from the Premises thereby causing an abatement event resulting in a limitation and/or full release of any potential liability on the part of Tenant. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE Plaintiff has failed to provide necessary and contractual predicate notices as a condition precedent to any relief sought. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE Any purported damages incurred by Plaintiff are the result of its own culpable conduct which absolves any liability on the part of Tenant. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by the doctrine of surrender and/or surrender by operation of law. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by its own material breaches and other breaches. 13 13 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by its improper and ineffective termination of the lease between it and Tenant. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by the applicable statute of limitations. RESERVATION OF ADDITIONAL AFFIRMATIVE DEFENSES Tenant reserves the right to assert and rely upon such other and further defenses as may become available during pretrial proceedings in this action and hereby reserves all rights to amend this Answer and all such defenses herein in accordance with CPLR 3025(b) or otherwise under the applicable law. COUNTERCLAIMS Tenant, for its Counterclaim against Plaintiff, alleges as follows: The Parties 1. Plaintiff, upon information and belief, was and still is a foreign limited partnership created and existing under the laws of the State of Connecticut and registered in the State of New York 2. Tenant was a domestic limited liability company created and existing under the laws of the State of New York, which has ceased operation. Facts and Background 3. In or around May 1, 2011, Plaintiff and Tenant entered into a lease agreement (the “Lease”), whereby Plaintiff leased to Tenant approximately 8,100 square feet of ground floor space and approximately 3,000 square feet of basement area at 147 Mamaroneck Avenue, White Plains, New York (the “Premises”). 14 14 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 4. The Lease was for a twenty-year term through April 30, 2031, unless earlier terminated. 5. The Premises was previously a Federal Express/Kinkos. 6. Upon entering into the Lease, Tenant expended approximately $3,000,000 in converting the Premises from a Federal Express/Kinkos into two separate restaurants and taverns. 7. One of the restaurants and taverns served barbeque-inspired food and drinks under the Brother Jimmy’s Franchising Inc. franchise system (“Brother Jimmy’s”). 8. The second restaurant did business under the name Lola’s Mexican Restaurant serving Mexican style food and drink (“Lola’s”). 9. In 2018, Tenant determined in its business judgment that the restaurant operating as Brother Jimmy’s would be more profitable if the franchise agreement was terminated and that portion of the space could be converted to another tavern-like concept. 10. Tenant engaged in several months of negotiations with Plaintiff in efforts to renovate, rebrand, and ultimately assign the Lease to a new related entity. Under these plans, Lola’s would remain operating the same as usual. 11. In or around June 2019, Plaintiff informed Tenant it was suspending review of the renovations. 12. Shortly after informing Tenant that Plaintiff had suspended review of the renovations, Plaintiff further informed Tenant that it was investigating Tenant’s overall conduct, intended to seek eviction, and offered a release of the guarantees if Tenant agreed to the termination of the Lease, providing at 24-hour period to accept the offer. 15 15 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 13. Ultimately, Plaintiff unreasonably withheld consent for any alterations or assignment, in violation of the terms of the Lease. 14. Instead, in the midst of ongoing negotiations, notified Tenant, albeit defectively, of its intention to terminate the Lease and attempted to serve, albeit improperly, a “3 Day Notice of Termination” dated June 24, 2019. 15. There were no valid grounds for the “3 Day Notice of Termination.” 16. Plaintiff did not follow the proper procedure with respect to service of the “3 Day Notice of Termination.” 17. Plaintiff failed to provide proper written notice of default and right to cure, as required by the Lease, prior to the attempted service of the “3 Day Notice of Termination.” 18. The only purported notice of default provided by Plaintiff at all was an email from November 2018, which did not comply with the notice provisions of the Lease. 19. The alleged grounds for termination in the “3 Day Notice of Termination” were: (I) the purported failure to cure an alleged default from November, 2018 based upon subsequent independent events of which no proper notice of cure was provided, in violation of the terms of the Lease; and (ii) for alleged “Recurring Late Payments” as defined in the Lease, despite the fact that Plaintiff has refused to detail the alleged Recurring Late Payments and that Plaintiff has waived any claim to late payments by virtue of waiving same and entering into payment plans that had been fully satisfied. 20. These acts not only harmed Tenant because it was thereby unable to rebrand the restaurant, but the manner of delivery of the “3 Day Notice of Termination,” which was given to an employee not authorized to accept service, resulted in a number of employees walking out of the restaurant. 16 16 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 21. Subsequent to the defective service of the “3 Day Notice of Termination,” Plaintiff made clear to Tenant that it deemed the Lease terminated and that Tenant had to cease doing business, close the restaurants, and vacate the Premises under the threat of the commencement of landlord tenant proceedings to evict Tenant. 22. Upon information and belief, the Plaintiff’s true motives were to remove Tenant from the leased Premises in the hopes of re-letting at a higher monthly rental price after Tenant had already invested over $3,000,000 in the premises converting it from a Federal Express/Kinkos to functioning, and previously profitable, taverns and restaurants. 23. By virtue of the harm caused by Plaintiff to Tenant’s business by the manner in which Plaintiff served the purported “3 Day Notice of Termination,” Plaintiff unreasonably withholding its consent to Tenant to rebrand the portion of the Premises operating as Brother Jimmy’s, and Plaintiff’s demands that Tenant close and vacate the Premises under the threat of litigation, Tenant was required to close down its business in or around July 2019. 24. If not for the conduct of Plaintiff, and if not for Plaintiff misleading Tenant into believing Plaintiff would not unreasonably withhold its consent for Tenant to rebrand, Tenant could have continued to operate the Brother Jimmy’s portion of the restaurant, in addition to Lola’s. 25. Instead, Tenant was forced by Plaintiff to close down both businesses. 26. Plaintiff was aware that Tenant had ceased operations and was vacating the subject premises. 27. Plaintiff accepted the tender of the keys no later than in the month of July 2019, if not earlier, and conducted a walkthrough of the Premises in later July. 17 17 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 28. During this time, Plaintiff claimed that Tenant was not current on rent; however, Plaintiff could not provide a complete accounting of the amount due and owing each month. 29. Upon information and belief the monthly charges claimed due by Plaintiff are inaccurate and are unsupported, resulting in excessive and inflated amounts not owed by Tenant. 30. Upon information and belief, prior monthly charges demanded by Plaintiff and paid by Tenant were inaccurate and cannot be supported by Plaintiff, resulting in excessive and inflated amounts not owed by Tenant. FIRST COUNTERCLAIM (Breach of Lease and of Covenant of Good Faith and Fair Dealing) 31. Tenant repeats and realleges the above paragraphs as is fully restated herein. 32. The parties, for valuable consideration, entered into the Lease. 33. Plaintiff breached the foregoing covenants by, among other things, (i) engaging in conduct that prevented Tenant from the full use and enjoyment of the Premises, (ii) improperly accusing Tenant of a default on the Lease, (iii) unreasonably withholding consent, (iv) improperly seeking to terminate the Lease, and (v) failure to properly itemize and account monthly rent and CAM charges. 34. Tenant has performed all obligations it has been required to perform under the Lease, except for any obligations for which performance has been excused by Plaintiff’s breaches. 35. As a proximate result of Plaintiff’s breaches of the Lease and of the covenant of good faith and fair dealing, Tenant has been harmed and has suffered monetary damages in an amount to be determined at trial. 18 18 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 SECOND COUNTERCLAIM (Constructive Eviction) 36. Tenant repeats and realleges the above paragraphs as if fully restated herein. 37. Plaintiff has failed to perform its obligations under the Lease and has interfered with and prevented Tenant’s peaceful and quiet enjoyment of the Premises by improperly attempting to terminate the Lease and improperly serving a Notice of Termination in such a manner as to harm Tenant’s business, all of which has resulted in Plaintiff's constructive eviction from the Premises. 38. Tenant has been constructively evicted from use of the Premises because Plaintiff has breached the covenant of quiet enjoyment. 39. As a result of Plaintiff’s failures in this regard, Tenant is entitled to damages in an amount to be determined at trial. THIRD COUNTERCLAIM (Breach of Covenant of Quiet Enjoyment) 40. Tenant repeats and realleges the above paragraphs as if fully restated herein. 41. Implicit in terms of the Lease is the covenant of quiet enjoyment. 42. Plaintiff has breached the covenant of quiet enjoyment because it has interfered with and prevented Tenant’s peaceful and quiet enjoyment of the Premises by improperly attempting to terminate the Lease and improperly serving a Notice of Termination in such a manner as to harm Tenant’s business. FOURTH COUNTERCLAIM (Declaratory Judgment) 43. Tenant repeats and realleges the above paragraphs as if fully restated herein. 44. In or around July 2019, Tenant vacated and surrendered the Premises to Plaintiff in broom-clean condition, which was accepted by Plaintiff without objection. 19 19 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 45. Subsequently the parties conducted themselves as if the Lease had been terminated. 46. As a result of the surrender, Tenant owed no further obligations under the Lease. 47. Plaintiff did not dispute Tenant’s surrender and accepted possession of the Premises. 48. Tenant requires a declaration that it has surrendered the Premises to Plaintiff, or that a surrender by operation of law has occurred, and Tenant owes no further obligations to Plaintiff under the Lease. WHEREFORE, Tenant respectfully requests: i. Dismissal of the Complaint; and ii. On the first through third counterclaims awarding Tenant monetary damages in an amount to be determined at trial; and iii. On the fourth counterclaim, a declaratory judgment of surrender or surrender by operation of law and that Tenant has no financial obligations to Plaintiff as of the date of the surrender; and iv. Attorneys’ fees and costs; and v. Such other and further relief as this Court deems just and proper. Dated: New York, NY March 5, 2024 OFFIT KURMAN P.A. __________________ Stephen M. Forte 590 Madison Ave., 6th Fl. New York, NY 10022 Tel: 929.476.0042 Stephen.Forte@OffitKurman.com Attorneys for Defendant Butterfield 8 WP LLC 20 20 of 21 FILED: WESTCHESTER COUNTY CLERK 03/05/2024 07:29 PM INDEX NO. 55240/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/05/2024 Verification I am the attorney for defendant Butterfield 8 WP LLC in this action. I have read the annexed Answer with Affirmative Defenses and Counterclaims, and its factual contents are true to my personal knowledge, except as to the matters alleged on information and belief, and as to those matters, I believe them to be true. The grounds for my belief as to all matters not stated upon my personal knowledge are correspondence and other writings furnished to me by Butterfield 8 WP LLC and discussion with Butterfield 8 WP LLC. The reason why this verification is not made by Butterfield 8 WP LLC is that Butterfield 8 WP LLC is not in the county where I have my principal office. Dated: March 5, 2024 New York, New York _________________ Stephen M. Forte 4860-7528-7466, v. 4 21 21 of 21