On June 27, 2016 a
Order to Show Cause
was filed
involving a dispute between
Cherry Hill Gourmet, Inc.,
and
Lundy'S Management Corp.,
for Real Property - Other (Yellowstone Injunction)
in the District Court of Kings County.
Preview
FILED: KINGS COUNTY CLERK 03/02/2018 01:17 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 03/02/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-..------------------------------------------------X X
CHERRY HILL GOURMET, INC., :
Plaintiff, : Index No.: 510844/2016
-against- :
: AFFIDAVIT
LUNDY'S MANAGEMENT CORP., : IN OPPOSITION
:
Defendant. :
---------------------------------------------------------·--------X
LUNDY'S MANAGEMENT CORP., :
Defendant and Third-Party Plaintiff,
-against- :
:
SHEEPSHEAD RESTAURANT ASSOCIATES, INC. :
:
Third-Party Defendants. :
---------------------------------------------------------X X
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I,Aleksendr Rabinovich, being duly sworn, depose and say:
1. I am a Principal at D.I.M.O. Engineering P.C. and have been working as a Building and Zoning
Consultant for approximately 30 years. I have extensive experience in Building, Zoning,
Architecture and Engineering. I also have a Bachelor Degree in Architecture.
2. For approximately the past 10 years, I have performed work for plaintiff Cherry Hill Gourmet,
(" Hill" "Premises"
Inc. ("Cherry Hill") in relation to the premises occupied by Cherry Hill (the "Premises") at the
"Building"
building located at 1901 Emmons Avenue, Brooklyn, NY (the ).
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NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 03/02/2018
3. I submit this affidavit in opposition to Lundy's claims that itcannot obtain a temporary certificate
of occupancy ("TCO") for the Building because of Cherry Hill.
4. This claim is not supported by any facts, and is simply untrue.
5. First,the Building did not have a TCO at thetime that Cherry Hill signed itslease for the Premises.
The most recent certificateof occupancy issued by theDepartment of Buildings for the Building
was a temporary certificate of occupancy, which expired in 2006. A copy of said temporary
certificate of occupancy is attached hereto as Exhibit F. Cherry Hill's initialSublease was not
signed until the summer of 2007 (See Exhibit D to Lundy's Order to Show Cause).
6. Second, Cherry Hill cannot obtain a sign-off for itsAlt-1 application until Lundy's and/or Lundy's
other subtenants firstcomplete work that Lundy's isrequired to perform.
7. Third, I have already submitted some of the paperwork required to close out the job applications
with respect to the plumbing sign-off for DOB Job No. 32126787, the flood zone compliance
certificate for DOB Job No. 321267847, the firesuppression system for DOB Job No. 321578903,
and for the grillfor DOB Job No. 321397859, and am in the process of submitting the remaining
paperwork. However, I cannot control how quickly the DOB processes the applications.
8. Fourth, even ifall of Cherry Hill's open applications were closed, Lundy's would stillnot be able
to obtain a TCO due to open applications and violations that remain on the record and which are
the sole responsibility of Lundy's and/or Lundy's other subtenants to correct.
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FILED: KINGS COUNTY CLERK 03/02/2018 01:17 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 03/02/2018
9. I have reviewed the open violations and applications on theDepartment of Buildings website in
relation to the Building, which violations are preventing the issuance of a certificate of occupancy
at the Building and which are preventing the sign-off of Cherry Hill's Alt-1 application.
10. These violations do not pertain to Cherry Hill and are not Cherry Hill's responsibility to correct.
11. A list of the current open ECB violations printed from the Department of Building's website is
attached hereto as Exhibit G, and a listof the current open DOB violations printed from the
Department of Building's website is attached hereto as Exhibit H.
12. As of today's date, there exists two open ECB violations, 35236388Y and 35176029K. ECB
Violation 35176029K has no relation to the part of the Building occupied by Cherry Hill, as it
was issued for a corner structure being utilized as a restaurant. ECB Violation 35236388Y
relates to Sheepshead Restaurant, a different subtenant of Lundy's.
13. As of today's date, there exists two open DOB violations, V 010317ACC107632 and V
102017E9028/613204. Both of these violations are elevator violations, which do not relate to
Cherry Hill's space at the Building and which are not maintained by Cherry Hill.
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FILED: KINGS COUNTY CLERK 03/02/2018 01:17 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 03/02/2018
14. The following items and/or applications need to be signed off or withdrawn by Lundy's (not
Cherry Hill) in order to obtain a temporary certificate of occupancy:
a. 320423181: PLUMBING AND MECHANICAL WORK IN CONJUNCTION
WITH APPLICATION #320152035
b. 310304060: MODIFTCATIONS TO EXISTING FIRE ALARM SYSTEM AS PER
PLANS FILED HEREWITH.
c. 302173813: LEGALlZE INSTALLATION OF (2) LOW PRESSURE GAS FIRED
BOILERS AND GAS PIPI
d. 300445123: INSTALL NEW FIRE ALARM SYSTEM AS PER PLA NS FILED
HEREWITH.
15. I have personally spoken with George Kazantzis of Lundy's on numerous occasions and advised
him that Lundy's must take action to have itsapplications signed off or withdrawn before a
temporary certificate of occupancy can be obtained for the Premises or Cheny Hill can have its
Alt-1 application signed off. Attached hereto as Exhibit I isa letter that I sent to Mr. Kazantzis
on December 27, 2016 detailing our meeting and listing the items that then remained open for
Lundy's to complete to obtain a certificate of occupancy for the Building.
16. However, to date, Lundy's has not done the required work and/or submitted the appropriate
paperwork to the Department of Buildings to allow Cherry Hill's existing Alt-1 application to be
closed or for a temporary certificateof occupancy to be issued for the Building.
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FILED: KINGS COUNTY CLERK 03/02/2018 01:17 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 03/02/2018
WHEREFORE, I respectfully request that Lundy's motion be denied.
/
t
a
Aleksendr Rabinovich
Sworn to before me this
1 day
, .
I';.u(-
, 018
W::
Public.''
Notary Public
SANIYA OMAROVA
Commissioner of Deeds City ofNew York
No. 2-13i37
Cert. Filed inKings County
ComrNssion Expires on 04-01-2018
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Document Filed Date
March 02, 2018
Case Filing Date
June 27, 2016
Category
Real Property - Other (Yellowstone Injunction)
Status
Disposed-Court Date/Application Pending
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FILED: KINGS COUNTY CLERK 03/02/2018 01:17 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 03/02/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -..------------------------------------------------X X CHERRY HILL GOURMET, INC., : Plaintiff, : Index No.: 510844/2016 -against- : : AFFIDAVIT LUNDY'S MANAGEMENT CORP., : IN OPPOSITION : Defendant. : ---------------------------------------------------------·--------X LUNDY'S MANAGEMENT CORP., : Defendant and Third-Party Plaintiff, -against- : : SHEEPSHEAD RESTAURANT ASSOCIATES, INC. : : Third-Party Defendants. : ---------------------------------------------------------X X STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) I,Aleksendr Rabinovich, being duly sworn, depose and say: 1. I am a Principal at D.I.M.O. Engineering P.C. and have been working as a Building and Zoning Consultant for approximately 30 years. I have extensive experience in Building, Zoning, Architecture and Engineering. I also have a Bachelor Degree in Architecture. 2. For approximately the past 10 years, I have performed work for plaintiff Cherry Hill Gourmet, (" Hill" "Premises" Inc. ("Cherry Hill") in relation to the premises occupied by Cherry Hill (the "Premises") at the "Building" building located at 1901 Emmons Avenue, Brooklyn, NY (the ). 1 1 of 5 FILED: KINGS COUNTY CLERK 03/02/2018 01:17 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 03/02/2018 3. I submit this affidavit in opposition to Lundy's claims that itcannot obtain a temporary certificate of occupancy ("TCO") for the Building because of Cherry Hill. 4. This claim is not supported by any facts, and is simply untrue. 5. First,the Building did not have a TCO at thetime that Cherry Hill signed itslease for the Premises. The most recent certificateof occupancy issued by theDepartment of Buildings for the Building was a temporary certificate of occupancy, which expired in 2006. A copy of said temporary certificate of occupancy is attached hereto as Exhibit F. Cherry Hill's initialSublease was not signed until the summer of 2007 (See Exhibit D to Lundy's Order to Show Cause). 6. Second, Cherry Hill cannot obtain a sign-off for itsAlt-1 application until Lundy's and/or Lundy's other subtenants firstcomplete work that Lundy's isrequired to perform. 7. Third, I have already submitted some of the paperwork required to close out the job applications with respect to the plumbing sign-off for DOB Job No. 32126787, the flood zone compliance certificate for DOB Job No. 321267847, the firesuppression system for DOB Job No. 321578903, and for the grillfor DOB Job No. 321397859, and am in the process of submitting the remaining paperwork. However, I cannot control how quickly the DOB processes the applications. 8. Fourth, even ifall of Cherry Hill's open applications were closed, Lundy's would stillnot be able to obtain a TCO due to open applications and violations that remain on the record and which are the sole responsibility of Lundy's and/or Lundy's other subtenants to correct. 2 2 of 5 FILED: KINGS COUNTY CLERK 03/02/2018 01:17 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 03/02/2018 9. I have reviewed the open violations and applications on theDepartment of Buildings website in relation to the Building, which violations are preventing the issuance of a certificate of occupancy at the Building and which are preventing the sign-off of Cherry Hill's Alt-1 application. 10. These violations do not pertain to Cherry Hill and are not Cherry Hill's responsibility to correct. 11. A list of the current open ECB violations printed from the Department of Building's website is attached hereto as Exhibit G, and a listof the current open DOB violations printed from the Department of Building's website is attached hereto as Exhibit H. 12. As of today's date, there exists two open ECB violations, 35236388Y and 35176029K. ECB Violation 35176029K has no relation to the part of the Building occupied by Cherry Hill, as it was issued for a corner structure being utilized as a restaurant. ECB Violation 35236388Y relates to Sheepshead Restaurant, a different subtenant of Lundy's. 13. As of today's date, there exists two open DOB violations, V 010317ACC107632 and V 102017E9028/613204. Both of these violations are elevator violations, which do not relate to Cherry Hill's space at the Building and which are not maintained by Cherry Hill. 3 3 of 5 FILED: KINGS COUNTY CLERK 03/02/2018 01:17 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 03/02/2018 14. The following items and/or applications need to be signed off or withdrawn by Lundy's (not Cherry Hill) in order to obtain a temporary certificate of occupancy: a. 320423181: PLUMBING AND MECHANICAL WORK IN CONJUNCTION WITH APPLICATION #320152035 b. 310304060: MODIFTCATIONS TO EXISTING FIRE ALARM SYSTEM AS PER PLANS FILED HEREWITH. c. 302173813: LEGALlZE INSTALLATION OF (2) LOW PRESSURE GAS FIRED BOILERS AND GAS PIPI d. 300445123: INSTALL NEW FIRE ALARM SYSTEM AS PER PLA NS FILED HEREWITH. 15. I have personally spoken with George Kazantzis of Lundy's on numerous occasions and advised him that Lundy's must take action to have itsapplications signed off or withdrawn before a temporary certificate of occupancy can be obtained for the Premises or Cheny Hill can have its Alt-1 application signed off. Attached hereto as Exhibit I isa letter that I sent to Mr. Kazantzis on December 27, 2016 detailing our meeting and listing the items that then remained open for Lundy's to complete to obtain a certificate of occupancy for the Building. 16. However, to date, Lundy's has not done the required work and/or submitted the appropriate paperwork to the Department of Buildings to allow Cherry Hill's existing Alt-1 application to be closed or for a temporary certificateof occupancy to be issued for the Building. 4 4 of 5 FILED: KINGS COUNTY CLERK 03/02/2018 01:17 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 03/02/2018 WHEREFORE, I respectfully request that Lundy's motion be denied. / t a Aleksendr Rabinovich Sworn to before me this 1 day , . I';.u(- , 018 W:: Public.'' Notary Public SANIYA OMAROVA Commissioner of Deeds City ofNew York No. 2-13i37 Cert. Filed inKings County ComrNssion Expires on 04-01-2018 5 5 of 5