Preview
FILED: WESTCHESTER INDEX NO. 51573/2015
COUNTY CLERK 05/06/2015 04:56 PM
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/11/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER INDEX NO.51573-2015
a mone manne aan-==-, ---X
CDC Development Properties Inc
Plaintiff,
-against-
NOTICE OF MOTION
AMERICAN INDEPENDENT PAPER MILLS
SUPPLY CO., INC and Hudson Harbor Homes, Inc.
Defendants.
ones: aan anne: wana xX
PLEASE TAKE NOTICE, that upon the annexed Affirmation of Mark E. Constantine, Esq.
AIP’s attorney of record dated the 6 of May 2015 and the exhibits annexed thereto will move
this Court at an IAS Part. ; to be held in and for the County of Westchester, at the
Courthouse, 111 Dr. Martin Luther King, Jr, Boulevard, White Plains, New York, on the 224
day of May 2015, or as soon thereafter as counsel can be heard, for an Order pursuant to CPLR
§3215, for a Default Judgment in accordance with the relief requested in the duly filed and
served Answer with Affirmative Defenses and Counterclaims and for summary judgment
dismissing the Summons and Complaint based upon the plaintiff's failure to answer or otherwise
reply to the AIP’s Answer with Affirmative Defenses and Counterclaims after the time to do so
pursuant to the CPLR has long expired, the expiration of the statute of limitations and based
upon the plaintiffs execution of an estoppel and for such other relief as may be deemed just and
proper.
Dated: Irvington, New York
May 6, 2015
‘onstantine, Esq.
106 North Broadway
Irvington, New York 10533
914-631-0410
To: Howard P. Klar, Esq.
Attorney for CDC
90 Broad Street, 3° Fir.
New York, New York 10004
(212) 683-7100
REQUEST FOR JUDICIAL INTERVENTION ~ For Court Clerk Use Only:
UCs-840 (7/2012) TAS Entry Date
Supreme COURT, COUNTY OF.
Judge Assigned
Index No: 51573-2015 Date Index Issued: 2-5-15
plete Gas Rar Date
tach
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ICDC DEVELOPMENT PROPERTIES, INC.
Plaintiff(s)/Petitioner(s)
~against-
AMERICAN INDEPENDENT PAPER MILLS SUPPLY, INC, ET AL
Defendant(s)Respondent(s)
[NATURE OF ACTION iN ce= a KO box only and sf where d
MATRIMONIAL. COMMERCIAL
© Contested © Business Entity (including corporations, partnerships, LLCs, etc.)
NOTE: For all Matrimonial actions where the parties have children under © contract
the age of 18, complete and attach the MATRIMONIAL RJl Addendum. © Insurance (where insurer is a party, except arbitration)
For Uncontested Matrimonial actions, use RJI form UD-13. © UCC (including sales, negotiable instruments)
TORTS O other Commercial:
O Asbestos (Gpecity)
© Breast Implant NOTE: For Commercial Division assignment requests [22 NYCRR §
© Environmental: 202.70(d)], complete and attach the COMMERCIAL DIV RJI Addendum.
(Gpecity) REAL PROPERTY: How many properties does the application include?
© Medical, Dental, or Podiatric Malpractice © Condemnation
© Motor Vehicle © Mortgage Foreclosure (speaty): O Residential © commercial
© Products Liability: Property Address:
(specify) Street Address: iy State Zip
© other Negligence: NOTE: For Mortgage Foreclosure actions involving a one- to four-family,
(Gpecify) owner-occupied, residential property, or an owner-occupied
O other Professional Malpractice: condominium, complete and attach the FORECLOSURE RJI Addendum.
(specify) © Tax Certiorari - Section: Block: Lot:
O other Tort: © Tax Foreclosure
(specify) ©other Real Property:LANDLORD TENANT.
OTHER MATTERS (specify)
© Certificate of Incorporation/Dissolution [see NOTE under Commercial] SPECIAL PROCEEDINGS
© Emergency Medical Treatment © CPLR Article 75 (Arbitration) [see NOTE under Commercial]
O Habeas Corpus © CPLR Article 78 (Body or Officer)
O Local Court Appeal © Election Law
O Mechanic's Lien © MUI Article 9.60 (Kendra's Law)
Ov Name Change © MHL Article 10 (Sex Offender Confinement-Initial)
© Pistol Permit Revocation Hearing © MHL Article 10 (Sex Offender Confinement-Review)
O Sale or Finance of Religious/Not-for-Profit Property © MHL Article 81 (Guardianship)
O otter. © other Mental Hygiene:
(specify) (weal)
© other Special Proceeding:
(speait
STATUS OF ACTION OR PROCEEDING: Ansi rE RY. terat formation: io
YES | NO_
Has a summons and complaint or summons winotice been filed? © 0 Ifyes, date filed: 2 15
Has a summons and complaint or summons winotice been served? ® 0 Ityes, date served: 2-20-15
Is this action/proceeding being filed postjudgment? o © Ifyes, judgment dat
a
[NATURE OF JUDICIAL INTERVENTION: 10x Only ation where ind
© Infant's Compromise
© Note of Issue and/or Certificate of Readiness
© Notice of Medical, Dental, or Podiatric Malpractice Date Issue Joined:
© Notice of Motion Relief Sought: Judament- Default Cad Retum Date: 5-22-15
© Notice of Petition Relief Sought: Return Date:
© order to Show Cause Relief Sought Return Date:
© other x Parte Application Relief Sought
© Poor Person Application
© Request for Preliminary Conference
© Residential Mortgage Foreclosure Settlement Conference
© Writ of Habeas Corpus
o Other (specify):
iny related actions. For Matr ie an} ited criminal ee
RELATED CASES: If additional space is requirec e RJ dum. |
Case Title Index/Case No. Court_ Judge (if assigned) Relationship to Instant Case
ornare MO attorney, check "Un-Rep” box AND é1 ran ided.
PARTIES: uired, complete and attach the R i se
Parties: Attorneys and/or Unrepresented Litigaants:
Issue
Un- List parties in caption order and Provide attorney name, firm name, business address, phone number and e-mail Joined
Insurance
Rep |indicate party role(s) (e.g. defendant; address of all attorneys that have eppeared in the case. For unrepresented (YIN): Carrier(s):
3rd-party plaintiff). litigants, provide address, phone number and e-mail address.
(CDC DEVELOPMENT PROPERTIES, INC KLAR HOWARD
Last Name Last Name First Name
yes
First Name Firm Name
O Primary Role: BROAD STREET, 3RD FLR. NEW YORK New Yook{] 10004
Plaintiff
Secondary Role (if any):
Gl Street Address, city State Zip Kno
\2126837100 2126835555
Phone Fax e-mail
AMERICAN INDEPENDENT PAPER MILLS -ONSTANTINE: MARK
Last Name Last Name First Name (yes
‘SUPPLY, INC.
First Name Firm Name
Primary Role: }106 NORTH BROADWAY IRVINGTON New York] 10599
Defendant a Street Address. city State
(no
Secondary Role (if any):
Phone Fax ermatt
HUDSON HARBOR HOMES, INC.
Last Name Last Name First Name (ves
First Name Firm Name
Primary Role:
Defendant
‘Secondary Role (if any):
El Street Address. City State Zip (no
Phone Fax e-mail
Last Name Last Name First Name
(ves
O First Name
Primary Role:
Firm Name
Street Address city State zip (Ono
‘Secondary Role (if any):
Phone Fax e-mail
1 AFFIRM UNDER THE PENALTY OF PERJURY THAT, TO MY KNOWLEDGE, OTHER THAN AS NOTED ABOVE, THERE ARE AND HAVE
BEEN NO RELATED ACTIONS OR PROCEEDINGS, NOR HAS A REQUEST FOR IAL INTERVENTION PREVIOUSLY BEEN FILED IN
THIS ACTION OR PROCEEDING. - Z
ve ae
ES
—S
Dated: MAY 11, 2015 “# La
NATURE
MARK E. CONSTANTINE, ESQ.
ATTORNEY REGISTRATION NUMBER PRINT OR TYPE NAME
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER INDEX NO.51573-2015
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CDC Development Properties Inc
Plaintiff,
-against-
ATTORNEY AFFIRMATION
AMERICAN INDEPENDENT PAPER MILLS
SUPPLY CO., INC and Hudson Harbor Homes, Inc.
Defendants.
ween enna nnn nnn nnn ene ene een n enn e nen nne,
Mark E. Constantine, Esq., an attorney duly admitted to practice in the State of
New York affirms the following facts in accordance with rule 2106 of the CPLR and
under the penalty of perjury.
I am the attorney of record for AMERICAN INDEPENDENT PAPER MILLS
SUPPLY CO., INC (hereinafter “AIP”), the defendant in the above captioned
proceeding.
As such I am familiar with the facts and circumstances that make up the claims
and the prosecution of the instant action. My familiarity is based on the file
maintained in my office.
I make this Affirmation in support of AIP’s Motion for Default Judgment
pursuant to section 3215 (a) of the CPLR, directing the entry of judgment in the
favor of AIP and against CDC (hereinafter “CDC”) for the relief demanded in the
Answer with Affirmative Defenses and Counterclaims on the ground that CDC
has failed to answer or otherwise move with regard to same.
The law also requires that the Court grant summary judgment dismissing the
complaint on the basis of the expiration of the statute of limitations. Furthermore,
the complaint must be dismissed on the basis of documentary evidence as the
plaintiff executed an estoppel wherein he certified that the landlord was in
compliance with the terms of the lease that the tenant had no claims against
landlord.
A DEFAULT JUDGMENT IS NECESSARY WHEN A PARTY IN AN ACTION
FAILS TO ANSWER OR OTHERWISE APPEAR IN THE CASE
5 CDC commenced this action on February 5, 2015 by filing the Summons and
Complaint in the Westchester County Clerk’s office. (copy attached as exhibit
“A’),
On February 26, 2015 the parties executed a stipulation extending the defendant’s
time to answer. (exhibit “B”)
On March 20, 2015 AIP served and filed by electronic filing the Answer with
Affirmative Defenses and Counterclaims. (exhibit “C”).
According to rule 320 of the CPLR the time for CDC to answer expired on or
about April 20, 2015.
As of the date of this affirmation, CDC has yet to answer, move or otherwise
appear in response to the duly served Answer with Affirmative Defenses and
Counterclaims.
10. As of the date of this Affirmation, CDC has not requested and there has been no
extension of CDC’s time to serve and file an Answer to the Answer with
Affirmative Defenses and Counterclaims.
11 According to section 3215 of the CPLR, CDC has defaulted such that the Court
must grant a Judgment of Default against CDC and in favor of AIP for the relief
requested in the Answer with Affirmative Defenses and Counterclaims.
12 The facts that form the basis of the counterclaim are as stated in the annexed
verified Answer with Affirmative Defenses and Counterclaims.
THE PLAINTIFF’S CLAIMS MUST BE DISMISSED AS A MATTER OF LAW
AS THEY ARE TIME BARRED BY SECTION 213 OF THE CPLR
13 In Paragraph 20 of the complaint CDC alleges that the September 18, 2008 Order
of the Hon. John R. LaCava, JSC gave rise to claims in favor of CDC for alleged
damages of $380,000.00 based upon a “Breach of Lease” cause of action.
14, The Court will take notice that a Breach of Lease cause of action is an action
based upon a contract.
15. The Court will further take notice that section 213 of the CPLR requires that an
action based upon a breach of contract must be commenced within six (6) years of
the date of the breach.
16. Accordingly, CDC’s alleged cause of action for breach of lease must have been
commenced on or before September 18, 2014 in order to comply with the statute
of limitations.
17. The Court will also take notice that the instant action was undeniably commenced
on February 5, 2015.
18. This is four and a half (4.5) months after the limitations period expired.
THE COURT MUST DISMISS THE COMPLAINT ON THE BASIS OF
DOCUMENTARY EVIDENCE AS THE PLAINTIFF EXECUTED AN
ESTOPPEL CERTIFICATE
19. Moreover, it is also undeniable that the Plaintiff and/or his counsel were aware of
their alleged claims as they acknowledged same in the cover letter and duly
executed estoppel dated September 17, 2014 (exhibit “D”).
20 The Court will take further notice that paragraph 7 of said Tenant Estoppel
Certificate states that there is no breach of lease by the landlord (AIP) and that the
tenant has no claims against or offsets against rents that are due or will become
due under the Lease.
21 This makes it clear that the plaintiff knew or should have known about their
alleged claims for breach of contract no later than September 17, 2014.
22 However, instead of commencing a cause of action they executed an Estoppel
certifying that there was no such breach and that they had no such claims.
23 While section 213 of the CPLR does not require and is not conditioned upon the
plaintiff's knowledge this fact serves to further support the conclusion that the
plaintiffs purported claims for breach of contract must be dismissed as untimely.
20. The law is clear that a cause of action commenced after the limitations period has
expired must be dismissed as untimely.
IN ADDITION TO ANY DAMAGES THE COURT MUST AWARD AIP THE
COSTS OF THIS SUIT INCLUDING BUT NOT LIMITED TO
REASONABLE ATTORNEY’S FEES
21 Annexed as exhibit “E” is the parties’ Lease dated November 2006 (hereinafter
“Lease”)
22 The Lease contains at least three (3) provisions that require the Court to award
AIP, in addition to damages, the costs of this suit including but not limited to
reasonable attorney’s fees.
23. The Court will take notice that Pars. 18 and 19 of the Lease and Par. 54 of Rider
“A” to the Lease all provide for AIP to recover its costs of suit including but not
limited to reasonable attorney’s fees.
24 Upon granting AIP’s motion the Court must require CDC to reimburse AIP for
said costs in addition to any damage award.
WHEREFORE, AIP demands judgment against CDC for the relief requested in the
Answer with Affirmative Defenses and Counterclaims and for summary judgment
dismissing CDC’s claims sounding in breach of lease as untimely in violation of section
213 of the CPLR, or, in the alternative as barred by documentary evidence, together with
pre and post-judgment interest, attorney’s fees pursuant to the parties’ lease and cost of
suit, and such other relief as the court deems appropriate.
Dated: Irvington, New York
May 6, 2015
Mark E. ‘onstantine, E:
106 North Broadway
Irvington, New York 10533
914-631-0410
EXHIBIT “A”
02:44 PM) 51573/2015
WESTCH
(FILED: EST
COUNTY ER 5
CLERK 02/05/201 INDEX NO.
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
i ete nis
CDC DEVELOPMENT PROPERTIES, INC, Index No.:
Date Purchased:
Plaintiff,
Plaintiff designates
- against - ‘WESTCHESTER COUNTY
for the place of trial
AMERICAN INDEPENDENT PAPER MILLS
SUPPLY CO., INC. and HUDSON HARBOR SUMMONS
HOMES, INC.,
Basis of Venue
Defendants. Plaintiff s Address:
serene ken eet ee X 191 Old White Plains Road
Tarrytown, New York 10691
TO THE ABOVE NAMED DEFENDANT(S):
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve
a copy of your answer on plaintiff's attorney: (a) if this Summons is served by its delivery
personally within the State of New York, you must appear and answer within TWENTY (20)
days after such service; or (b) if this Summons is served by delivery to any person other than you
personally, or is served outside the State of New York, or by publication, or by any means other
than personal delivery to you within the State of New York, you are allowed THIRTY (30) days
after such service; and in case of your failure to appear, judgment will be taken against you by
default for the relief demanded herein.
Dated: New York, New York
February 5, 2015
ours, etc.,
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Fgt the Firm
1.0 VITUCCI KLAR LLP
Attorneys for Plaintiff
CDC DEVELOPMENT PROPERTIES, INC.
90 Broad Street, 3! Floor
New York, New York 10004
(212) 683-7100
TO:
Via Secretary of State and Personal Service
AMERICAN INDEPENDENT PAPER MILLS SUPPLY CO., INC.
15 South Depot Plaza
Tarrytown, New York 10591
Via Secretary of State and Personal Service
HUDSON HARBOR HOMES, INC.
485 West Putnam Avenue
Greenwich, CT 06830
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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CDC DEVELOPMENT PROPERTIES, INC., Index No.
Plaintiff, ERIFIED COMPLAIN’
~ against -
AMERICAN INDEPENDENT PAPER MILLS
SUPPLY CO., INC, and HUDSON HARBOR
HOMES, INC
Defendants
sees a tian ie cine mi ea
Plaintiff CDC DEVELOPMENT PROPERTIES, INC. (hereinafter referred to as
“Plaintiff” and/or “CDC”) by their attorneys, Gallo Vitucci Klar LLP, alleges as and for their
verified complaint (the “Complaint”) against the defendants American Independent Paper Mills
Supply Co., Inc. (‘AIP’) and Hudson Harbor Station, LLC. (“HHS”).as follows:
1 Plaintiff is a New York corporation duly organized and existing under the law of
the State of New York with a business address at 191 Old White Plains Road, Tarrytown, NY
10691
2. Upon information and belief, AIP is a New York corporation duly organized and
existing under the law of the State of New York with a business address at 15 South Depot Plaza,
Tarrytown, New York 10591
3 Upon information and belief, HHS is a limited liability company with a principal
place of business at 485 West Putnam Avenue, Greenwich, CT 06830.
4. Upon information and belief, at all times hereinafter mentioned, Defendant AIP
transacted and conducted business within the State of New York.
5 Upon information and belief, at all times hereinafter mentioned, Defendant HHS
transacted and conducted business within the State of New York.
{00504624.DOC;1 }
6. Upon information and belief, at all times hereinafter mentioned, Defendants AIP
regularly did and/or do or solicit business, or engage in other persistent courses of conduct or
derives substantial revenue from goods used or consumed in the State of New York.
7. Upon information and belief, at all times hereinafter mentioned, Defendants HHS
regularly did and/or do or solicit business, or engage in other persistent courses of conduct or
derives substantial revenue from goods used or consumed in the State of New York.
8 Upon information and belief, at all times hereinafter mentioned, Defendant AIP
expected or should reasonably have expected their acts to have consequences in the State of New
York, and they derived substantial revenue from interstate or international commerce.
9. Upon information and belief, at all times hereinafter mentioned, Defendant HHS
expected or should reasonably have expected their acts to have consequences in the State of New
York, and they derived substantial revenue from interstate or international commerce.
STATEMENT OF FACTS
10. Plaintiff CDC and Defendant AIP entered into a Commercial Lease (hereinafter
referred to as “the Lease”) in or about November 2006, wherein, AIP agreed to lease to CDC the
premises described as the North Warehouse, consisting of approximately 26,400 square feet of
office and warehouse space located at South Depot Plaza (Village of Tarrytown tax lot 1.70-29-
38) in Tarrytown, New York (“subject premises”). A copy of the Lease is annexed hereto and is
hereby incorporated into this Complaint.
11. Plaintiff occupied subject premises to conduct their business of providing a sports
complex for the general public.
12, Upon information and belief, Defendant AIP leased the subject premises for
commercial use to the Plaintiff for said purpose.
13, AIP agreed to lease the subject premises to Plaintiff for a term of ten (10) years
commencing on December 1, 2006 and ending on November 30, 2016.
14, Pursuant to the Lease, Paragraph 35, CDC agreed to pay to AIP base year rent,
which included base year taxes, as further detailed in said paragraph.
15. Pursuant to the Lease, Paragraph 37, CDC also agreed to pay AIP as additional
rental income, any increase in Town, School and/or Village real estate taxes which may have
become due during the term of the Lease subsequent to the 2007 Town of Greenburgh Real
Estate Taxes, the 2006/07 School District Real Estate Taxes and the 2006/07 Village Real Estate
Taxes for the subject premises.
16. It was further agreed by the parties in the Lease that in the event that there was a
decrease in Town, School and/or Village real estate taxes for the subject premises, that Plaintiff's
monthly and yearly rent would be reduced by its proportionate share.
A, CDC’s Rights Under the Lease With Respect to Obtaining a Reimbursement of
Taxes Paid to AIP
17, Furthermore, pursuant to the Lease Paragraph 37, the second paragraph, which
reads in pertinent part:
Landlord reserves the right through available legal remedies, to contest the
validity of any taxes, or the amount of the assessed valuation of the realty or any
part thereof for any fiscal tax year. If the Landlord shall receive any tax refund.
remission or abatement_with respect to the contested taxes, the Landlord {AIP}
hall_reimburse Tenant (CDC) for its proportionate share. thereof...Emphasis
added.
18. Upon information and belief, AIP did exercise its right to contest the validity of
the property tax assessments for the subject premises made by the Assessor of the Town of
Greenburgh for each and every year commencing in 1999 and ending in 2007.
B Certiorari Event Granting AIP a Reduction in Assessed Value for the Subject
Premises
19. Upon information and belief, the first year that AIP’s Petition and Notice to
review the property tax assessment upon the subject premises was successful was in 2008 when
the court issued an Order reducing the assessed value of said subject premises.
20. Specifically, on or about September 18, 2008, Hon. John R. Lacava in the
Supreme Court of the State of New York, County of Westchester issued an Order stating that the
assessment of the subject property was thereby reduced, corrected and fixed for the years
commencing in 1999 and ending in 2007 (“Order”).
21, As a result of the reduction of the assessment value for the above years, the taxes
for the subject premises were thereby reduced for the subsequent years commencing in the tax
year 2000 and ending in 2008 and as such, AIP was awarded a tax refund for said years,
22. Upon information and belief, AIP never provided notice to the Plaintiff of the
issuance of said Order or of the tax refund that was obtained by AIP.
23. In or about 2014, Plaintiff's became aware of said Order and its findings
through their own due diligence and investigation of the Court’s and Town of Greenburgh’s
records through their attorneys, Gallo Vitucci Klar LLP.
C. Certiorari Event Granting AIP a Tax Refund for the tax years 2000 through
2008
24, In light of the Order which reduced the assessed value of the subject
premises for the years 1999 to 2007, AIP was awarded a tax refund for taxes paid retroactively
for the tax years 2000 through 2008 in the total amount of $369,954.00.
25. Upon. information and belief, since the Plaintiff was a tenant in the subject
premises since November 2006 and therefore paid its proportionate share of the taxes included in
their monthly rent for a portion of the 2006 tax year, the entire 2007 and 2008 tax years, pursuant
to said Order and Lease, the Plaintiff was entitled to a tax refund for its proportionate share of
taxes paid in those years.
D. The Effect That the Certiorari Event Had on AIP and Plaintiff’s Past Rent
Payments
26. Upon information and belief, AIP never provided Plaintiff with its proportionate
share of the tax refund awarded to AIP, as agreed to in the Lease, for a portion of the year 2006
and as such, Plaintiff overpaid their rent in the amount of Four Thousand Three Hundred Eighty-
Four Dollars and Sixty-Six Cents ($4,384.66).
27. Upon information and belief, AIP never provided Plaintiff with its proportionate
share of the tax refund awarded to AIP, as agreed to in the Lease, for a portion of the year 2007
and as such, Plaintiff overpaid their rent in the amount of Thirty-Two Thousand Two
Hundred and Eighty One Dollars and Sixty Two Cents ($32,281.62).
28. Upon information and belief, AIP never provided Plaintiff with its proportionate
share of the tax refund awarded to AIP, as agreed to in the Lease, for the tax year 2008 and
as such, Plaintiff overpaid their rent in the amount of Thirty-Four Thousand Three Hundred and
Sixty Two Dollars and Five Cents ($34,362.05).
29. Upon information and belief, pursuant to said Order, Plaintiff is owed a tax refund
for the years 2007 and 2008 in the total amount of Seventy-One Thousand Twenty-Eight Dollars
and Thirty-Three Cents ($71,028.33).
E, The Effect That the Certiorari Event Had on Plaintiff’s Future Rent Payments
30. Upon information and belief, as a result of the court’s Order, in 2009 AIP’s taxes
were reduced in the amount of Fifty-One Thousand Seven Hundred and Forty-Three Dollars and
twenty-one cents ($51,743.21) which thereby created a new tax basis for subsequent years.
31. However, upon information and belief, AIP continued to issue rent bills to the
Plaintiff reflecting the old tax basis without any reduction being awarded towards rent
whatsoever to the Plaintiff, causing the Plaintiff to continue overpaying its rent from 2009 to the
present.
32. Upon information and belief, in 2009 Plaintiff overpaid their rent in the amount of
Fifty- One Thousand Seven Hundred and Forty-Three Dollars and Twenty-One Cents
($51,743.21) and as such Plaintiff is entitled to a rent refund in said amount.
33. Upon information and belief, in 2010 Plaintiff overpaid their rent in the amount of
Fifty- One Thousand Seven Hundred and Forty-Three Dollars and Twenty-One Cents
($51,743.21) and as such Plaintiff is entitled to a rent refund in said amount.
34, Upon information and belief, in 2011 Plaintiff overpaid their rent in the amount of
Fifty- One Thousand Seven Hundred and Forty-Three Dollars and Twenty-One Cents
($51,743.21) and as such Plaintiff is entitled to a rent refund in said amount.
35. Upon information and belief, in 2012 Plaintiff overpaid their rent in the amount of
Fifty- One Thousand Seven Hundred and Forty-Three Dollars and Twenty-One Cents
($51,743.21) and as such Plaintiff is entitled to a rent refund in said amount.
36. Upon information and belief, in 2013 Plaintiff overpaid their rent in the amount of
Fifty. One Thousand Seven Hundred and Forty-Three Dollars and Twenty-One Cents
($51,743.21) and as such Plaintiff
is entitled to a rent refund in said amount.
37. Upon information and belief, in 2014 Plaintiff overpaid their rent in the amount of
Fifty- One Thousand Seven Hundred and Forty-Three Dollars and Twenty-One Cents
($51,743.21) for the years 2014 and as such Plaintiff is entitled to a rent refund in said amount.
38. Upon information and belief, the total amount of rent overpaid by the Plaintiffs
from 2006 to 2014 is in the amount of approximately Three Hundred Eighty-Five Thousand
Dollars ($385,000.00).
39. As such, Plaintiff is owed a refund for the overpayment in rent in the amount of
approximately Three Hundred Eighty- Five Thousand Dollars ($385,000.00).
40. Upon information and belief, since to date AIP has not provided any refunds
to Plaintiff due to said overpayment in rent, as agreed to in the Lease, Plaintiff will be owed
additional refunds from June 2014 and continuing.
F. AIP’s Obligation Pursuant to the Lease to Conduct Roof Repairs
41. Furthermore, pursuant to the Lease, Paragraph 52 of the Rider, which reads in
pertinent part:
Except as otherwise provided herein, it is understood and agreed that all maintenance and
repairs to the demised premises except structural repairs, shall be done by Tenant at its
own cost and expense...lt is agreed that, maintenance and repair of the roof shall_be
deemed a structural repair. Emphasis Added.
42. For over a year, Plaintiff has notified AIP orally and in writing through their
attorneys, that there were various leaks which emanated from the roof of the subject premises.
43. Plaintiff further advised AIP that said leaks in the roof caused water to
accumulate in various areas of the subject premises thereby affecting Plaintiff's business.
44. Upon information and belief, AIP continued to allege that repairs were made to
the subject roof, however said repairs were never properly made.
45. As a result of AIP’s failure to repair the roof, Plaintiff is unable to fully use the
subject premises as an indoor sports facility.
46. As a result of AIP’s failure to repair the roof, the subject premises are not fit for
Plaintiff’s use as intended as an indoor sports facility as referenced in the Lease.
47. Plaintiff has made repeated attempts to address said breach to AIP and invite AIP
to cure said breach.
48. To date, AIP has not yet cured said breach with regard to the roof repair as all of
Plaintiff's attempts were ignored by AIP.
G. CDC’s Notification of the Sale of the Subject Premises By AIP to HHS
49. On or about June 3, 2014, AIP advised Plaintiff in writing that the subject
premises was in contract to be sold to HHS with no contingencies and that such closing shall
take place within 90 to 120 days.
50. It is upon information and belief that a contract of sale was executed by and
between AIP and HHS for the sale and subsequent purchase of the subject premises.
31. Since the Plaintiff is not a party to said contract of sale, upon information and
belief, said premises may have already been sold to HHS and as such, HHS has a property
interest in the subject premises.
52. Since the Plaintiff is not a party to said contract of sale, upon information and
belief, the subject premises will be sold in the near future to HHS and as such, HHS has a
property interest in the subject premises.
53. Pursuant to the Lease, since HHS is a “successor” to AIP, HHS is also in breach
of said Lease provisions as stated above.
34, Pursuant to the Lease, since HHS is an “assignee” of AIP, HHS is also in breach
of said Lease provisions as stated above.
FIRST CAUSE OF ACTION
(Breach of Lease against AIP)
35. Plaintiff repeats and re-alleges paragraphs 1 through 54 of this Complaint as if
fully alleged herein.
36. AIP has materially breached the Lease by not providing Plaintiff with a tax refund
as per the court’s Order and as per the terms of the Lease for Plaintiff's overpayment in rent for
the years 2006 to 2007 in the amount of $32,281.62.
37. AIP has materially breached the Lease by not providing Plaintiff with a tax refund
as per the Court’s Order and as per the terms of the Lease for Plaintiff's overpayment in rent for
the years 2007 to 2008 in the amount of $34,362.05.
58. AIP has materially breached the Lease by not providing Plaintiff with a tax refund
as per the Court’s Order and as per the terms of the Lease for Plaintiff's overpayment in rent for
the years 2008 to 2009 in the amount of $51,743.21.
59. AIP has materially breached the Lease by not providing Plaintiff with a tax refund
as per the Court’s Order and as per the terms of the Lease for Plaintiff's overpayment in rent for
the years 2009 to 2010 in the amount of $51,743.21.
60. AIP has materially breached the Lease by not providing Plaintiff with a tax refund
as per the Court’s Order and as per the terms of the Lease for Plaintiff's overpayment in rent for
the years 2010 to 2011 in the amount of $51,743.21.
61. AIP has materially breached the Lease by not providing Plaintiff with a tax refund
as per the Court’s Order and as per the terms of the Lease for Plaintiffs overpayment in rent for
the years 2011 to 2012 in the amount of $51,743.21.
62. AIP has materially breached the Lease by not providing Plaintiff with a tax refund
as per the Court’s Order and as per the terms of the Lease for Plaintiff's overpayment in rent for
the years 2012 to 2013 in the amount of $51,743.21.
63. AIP has materially breached the Lease by not providing Plaintiff with a tax refund
as per the Court’s Order and as per the terms of the Lease for Plaintiff's overpayment in rent for
the years 2013 to 2014 in the amount of $51,743.21.
64. AIP has materially breached the Lease by not providing Plaintiff with a tax refund
as per the Court’s Order and as per the terms of the Lease for Plaintiff's overpayment in rent
from 2006 to the present day.
65. By reason of the foregoing, Plaintiff has suffered damages in the amount of
approximately $380,000.00, as per the terms of the Lease.
SECOND CAUSE OF ACTION
(Breach of Lease against HHS)
66. Plaintiff repeats and re-alleges paragraphs 1 through 65 of this Complaint as if
fully alleged herein.
67. HHS has materially breached the Lease by not providing Plaintiff with a tax
refund as per the Court’s Order and as per the terms of the Lease for Plaintiff's overpayment in
rent from 2006 to the present in the total amount of approximately $380,000.00.
68. By reason of the foregoing, Plaintiff has suffered damages in the amount of
approximately $380,000.00, as per the terms of the Lease.
THIRD CAUSE OF ACTION
(Constructive Eviction)
69. Plaintiff repeats and re-alleges paragraphs 1 through 68 of this Complaint as if
fully alleged herein.
70. Upon information and belief, AIP permitted the roof of the subject premises to
remain in disrepair causing the roof to leak water onto Plaintiff's indoor sports field and office
spaces located inside the subject premises.
10
TL. By reason of the foregoing acts and omissions, Plaintiff has been unable to use the
subject premises for the use as intended and as prescribed for in the Lease.
72. By reason of the foregoing acts and omissions, Plaintiff has been constructively
evicted from the subject premises as the indoor sports field and office spaces have been
extensively damaged and resulted in disrepair.
73. By reason of the foregoing, Plaintiff is entitled to a judgment, ordering and
compelling AIP to repair and restore the roof of the subject premises to its prior condition and
compensating Plaintiff for any and all expenses incurred in repairing the indoor sports field and
office areas resulting from water emanating from the roof.
74. Plaintiff is also entitled to damages against AIP for loss in revenue sustained by
Plaintiff in an amount to be determined at trial.
75. Plaintiff in the alternative is entitled to a refund in rent paid during the time that
roof was leaking and in disrepair in an amount to be determined at trial.
FOURTH CAUSE OF ACTION
(Declaratory Judgment against Defendants)
Preview
FILED: WESTCHESTER INDEX NO. 51573/2015 COUNTY CLERK 05/06/2015 04:56 PM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/11/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER INDEX NO.51573-2015 a mone manne aan-==-, ---X CDC Development Properties Inc Plaintiff, -against- NOTICE OF MOTION AMERICAN INDEPENDENT PAPER MILLS SUPPLY CO., INC and Hudson Harbor Homes, Inc. Defendants. ones: aan anne: wana xX PLEASE TAKE NOTICE, that upon the annexed Affirmation of Mark E. Constantine, Esq. AIP’s attorney of record dated the 6 of May 2015 and the exhibits annexed thereto will move this Court at an IAS Part. ; to be held in and for the County of Westchester, at the Courthouse, 111 Dr. Martin Luther King, Jr, Boulevard, White Plains, New York, on the 224 day of May 2015, or as soon thereafter as counsel can be heard, for an Order pursuant to CPLR §3215, for a Default Judgment in accordance with the relief requested in the duly filed and served Answer with Affirmative Defenses and Counterclaims and for summary judgment dismissing the Summons and Complaint based upon the plaintiff's failure to answer or otherwise reply to the AIP’s Answer with Affirmative Defenses and Counterclaims after the time to do so pursuant to the CPLR has long expired, the expiration of the statute of limitations and based upon the plaintiffs execution of an estoppel and for such other relief as may be deemed just and proper. Dated: Irvington, New York May 6, 2015 ‘onstantine, Esq. 106 North Broadway Irvington, New York 10533 914-631-0410 To: Howard P. Klar, Esq. Attorney for CDC 90 Broad Street, 3° Fir. New York, New York 10004 (212) 683-7100 REQUEST FOR JUDICIAL INTERVENTION ~ For Court Clerk Use Only: UCs-840 (7/2012) TAS Entry Date Supreme COURT, COUNTY OF. Judge Assigned Index No: 51573-2015 Date Index Issued: 2-5-15 plete Gas Rar Date tach 2 cay = ICDC DEVELOPMENT PROPERTIES, INC. Plaintiff(s)/Petitioner(s) ~against- AMERICAN INDEPENDENT PAPER MILLS SUPPLY, INC, ET AL Defendant(s)Respondent(s) [NATURE OF ACTION iN ce= a KO box only and sf where d MATRIMONIAL. COMMERCIAL © Contested © Business Entity (including corporations, partnerships, LLCs, etc.) NOTE: For all Matrimonial actions where the parties have children under © contract the age of 18, complete and attach the MATRIMONIAL RJl Addendum. © Insurance (where insurer is a party, except arbitration) For Uncontested Matrimonial actions, use RJI form UD-13. © UCC (including sales, negotiable instruments) TORTS O other Commercial: O Asbestos (Gpecity) © Breast Implant NOTE: For Commercial Division assignment requests [22 NYCRR § © Environmental: 202.70(d)], complete and attach the COMMERCIAL DIV RJI Addendum. (Gpecity) REAL PROPERTY: How many properties does the application include? © Medical, Dental, or Podiatric Malpractice © Condemnation © Motor Vehicle © Mortgage Foreclosure (speaty): O Residential © commercial © Products Liability: Property Address: (specify) Street Address: iy State Zip © other Negligence: NOTE: For Mortgage Foreclosure actions involving a one- to four-family, (Gpecify) owner-occupied, residential property, or an owner-occupied O other Professional Malpractice: condominium, complete and attach the FORECLOSURE RJI Addendum. (specify) © Tax Certiorari - Section: Block: Lot: O other Tort: © Tax Foreclosure (specify) ©other Real Property:LANDLORD TENANT. OTHER MATTERS (specify) © Certificate of Incorporation/Dissolution [see NOTE under Commercial] SPECIAL PROCEEDINGS © Emergency Medical Treatment © CPLR Article 75 (Arbitration) [see NOTE under Commercial] O Habeas Corpus © CPLR Article 78 (Body or Officer) O Local Court Appeal © Election Law O Mechanic's Lien © MUI Article 9.60 (Kendra's Law) Ov Name Change © MHL Article 10 (Sex Offender Confinement-Initial) © Pistol Permit Revocation Hearing © MHL Article 10 (Sex Offender Confinement-Review) O Sale or Finance of Religious/Not-for-Profit Property © MHL Article 81 (Guardianship) O otter. © other Mental Hygiene: (specify) (weal) © other Special Proceeding: (speait STATUS OF ACTION OR PROCEEDING: Ansi rE RY. terat formation: io YES | NO_ Has a summons and complaint or summons winotice been filed? © 0 Ifyes, date filed: 2 15 Has a summons and complaint or summons winotice been served? ® 0 Ityes, date served: 2-20-15 Is this action/proceeding being filed postjudgment? o © Ifyes, judgment dat a [NATURE OF JUDICIAL INTERVENTION: 10x Only ation where ind © Infant's Compromise © Note of Issue and/or Certificate of Readiness © Notice of Medical, Dental, or Podiatric Malpractice Date Issue Joined: © Notice of Motion Relief Sought: Judament- Default Cad Retum Date: 5-22-15 © Notice of Petition Relief Sought: Return Date: © order to Show Cause Relief Sought Return Date: © other x Parte Application Relief Sought © Poor Person Application © Request for Preliminary Conference © Residential Mortgage Foreclosure Settlement Conference © Writ of Habeas Corpus o Other (specify): iny related actions. For Matr ie an} ited criminal ee RELATED CASES: If additional space is requirec e RJ dum. | Case Title Index/Case No. Court_ Judge (if assigned) Relationship to Instant Case ornare MO attorney, check "Un-Rep” box AND é1 ran ided. PARTIES: uired, complete and attach the R i se Parties: Attorneys and/or Unrepresented Litigaants: Issue Un- List parties in caption order and Provide attorney name, firm name, business address, phone number and e-mail Joined Insurance Rep |indicate party role(s) (e.g. defendant; address of all attorneys that have eppeared in the case. For unrepresented (YIN): Carrier(s): 3rd-party plaintiff). litigants, provide address, phone number and e-mail address. (CDC DEVELOPMENT PROPERTIES, INC KLAR HOWARD Last Name Last Name First Name yes First Name Firm Name O Primary Role: BROAD STREET, 3RD FLR. NEW YORK New Yook{] 10004 Plaintiff Secondary Role (if any): Gl Street Address, city State Zip Kno \2126837100 2126835555 Phone Fax e-mail AMERICAN INDEPENDENT PAPER MILLS -ONSTANTINE: MARK Last Name Last Name First Name (yes ‘SUPPLY, INC. First Name Firm Name Primary Role: }106 NORTH BROADWAY IRVINGTON New York] 10599 Defendant a Street Address. city State (no Secondary Role (if any): Phone Fax ermatt HUDSON HARBOR HOMES, INC. Last Name Last Name First Name (ves First Name Firm Name Primary Role: Defendant ‘Secondary Role (if any): El Street Address. City State Zip (no Phone Fax e-mail Last Name Last Name First Name (ves O First Name Primary Role: Firm Name Street Address city State zip (Ono ‘Secondary Role (if any): Phone Fax e-mail 1 AFFIRM UNDER THE PENALTY OF PERJURY THAT, TO MY KNOWLEDGE, OTHER THAN AS NOTED ABOVE, THERE ARE AND HAVE BEEN NO RELATED ACTIONS OR PROCEEDINGS, NOR HAS A REQUEST FOR IAL INTERVENTION PREVIOUSLY BEEN FILED IN THIS ACTION OR PROCEEDING. - Z ve ae ES —S Dated: MAY 11, 2015 “# La NATURE MARK E. CONSTANTINE, ESQ. ATTORNEY REGISTRATION NUMBER PRINT OR TYPE NAME SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER INDEX NO.51573-2015 wen een en nen nn nnn nanan nnn nanan nnn n nan n ene enna ennnnee, CDC Development Properties Inc Plaintiff, -against- ATTORNEY AFFIRMATION AMERICAN INDEPENDENT PAPER MILLS SUPPLY CO., INC and Hudson Harbor Homes, Inc. Defendants. ween enna nnn nnn nnn ene ene een n enn e nen nne, Mark E. Constantine, Esq., an attorney duly admitted to practice in the State of New York affirms the following facts in accordance with rule 2106 of the CPLR and under the penalty of perjury. I am the attorney of record for AMERICAN INDEPENDENT PAPER MILLS SUPPLY CO., INC (hereinafter “AIP”), the defendant in the above captioned proceeding. As such I am familiar with the facts and circumstances that make up the claims and the prosecution of the instant action. My familiarity is based on the file maintained in my office. I make this Affirmation in support of AIP’s Motion for Default Judgment pursuant to section 3215 (a) of the CPLR, directing the entry of judgment in the favor of AIP and against CDC (hereinafter “CDC”) for the relief demanded in the Answer with Affirmative Defenses and Counterclaims on the ground that CDC has failed to answer or otherwise move with regard to same. The law also requires that the Court grant summary judgment dismissing the complaint on the basis of the expiration of the statute of limitations. Furthermore, the complaint must be dismissed on the basis of documentary evidence as the plaintiff executed an estoppel wherein he certified that the landlord was in compliance with the terms of the lease that the tenant had no claims against landlord. A DEFAULT JUDGMENT IS NECESSARY WHEN A PARTY IN AN ACTION FAILS TO ANSWER OR OTHERWISE APPEAR IN THE CASE 5 CDC commenced this action on February 5, 2015 by filing the Summons and Complaint in the Westchester County Clerk’s office. (copy attached as exhibit “A’), On February 26, 2015 the parties executed a stipulation extending the defendant’s time to answer. (exhibit “B”) On March 20, 2015 AIP served and filed by electronic filing the Answer with Affirmative Defenses and Counterclaims. (exhibit “C”). According to rule 320 of the CPLR the time for CDC to answer expired on or about April 20, 2015. As of the date of this affirmation, CDC has yet to answer, move or otherwise appear in response to the duly served Answer with Affirmative Defenses and Counterclaims. 10. As of the date of this Affirmation, CDC has not requested and there has been no extension of CDC’s time to serve and file an Answer to the Answer with Affirmative Defenses and Counterclaims. 11 According to section 3215 of the CPLR, CDC has defaulted such that the Court must grant a Judgment of Default against CDC and in favor of AIP for the relief requested in the Answer with Affirmative Defenses and Counterclaims. 12 The facts that form the basis of the counterclaim are as stated in the annexed verified Answer with Affirmative Defenses and Counterclaims. THE PLAINTIFF’S CLAIMS MUST BE DISMISSED AS A MATTER OF LAW AS THEY ARE TIME BARRED BY SECTION 213 OF THE CPLR 13 In Paragraph 20 of the complaint CDC alleges that the September 18, 2008 Order of the Hon. John R. LaCava, JSC gave rise to claims in favor of CDC for alleged damages of $380,000.00 based upon a “Breach of Lease” cause of action. 14, The Court will take notice that a Breach of Lease cause of action is an action based upon a contract. 15. The Court will further take notice that section 213 of the CPLR requires that an action based upon a breach of contract must be commenced within six (6) years of the date of the breach. 16. Accordingly, CDC’s alleged cause of action for breach of lease must have been commenced on or before September 18, 2014 in order to comply with the statute of limitations. 17. The Court will also take notice that the instant action was undeniably commenced on February 5, 2015. 18. This is four and a half (4.5) months after the limitations period expired. THE COURT MUST DISMISS THE COMPLAINT ON THE BASIS OF DOCUMENTARY EVIDENCE AS THE PLAINTIFF EXECUTED AN ESTOPPEL CERTIFICATE 19. Moreover, it is also undeniable that the Plaintiff and/or his counsel were aware of their alleged claims as they acknowledged same in the cover letter and duly executed estoppel dated September 17, 2014 (exhibit “D”). 20 The Court will take further notice that paragraph 7 of said Tenant Estoppel Certificate states that there is no breach of lease by the landlord (AIP) and that the tenant has no claims against or offsets against rents that are due or will become due under the Lease. 21 This makes it clear that the plaintiff knew or should have known about their alleged claims for breach of contract no later than September 17, 2014. 22 However, instead of commencing a cause of action they executed an Estoppel certifying that there was no such breach and that they had no such claims. 23 While section 213 of the CPLR does not require and is not conditioned upon the plaintiff's knowledge this fact serves to further support the conclusion that the plaintiffs purported claims for breach of contract must be dismissed as untimely. 20. The law is clear that a cause of action commenced after the limitations period has expired must be dismissed as untimely. IN ADDITION TO ANY DAMAGES THE COURT MUST AWARD AIP THE COSTS OF THIS SUIT INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEY’S FEES 21 Annexed as exhibit “E” is the parties’ Lease dated November 2006 (hereinafter “Lease”) 22 The Lease contains at least three (3) provisions that require the Court to award AIP, in addition to damages, the costs of this suit including but not limited to reasonable attorney’s fees. 23. The Court will take notice that Pars. 18 and 19 of the Lease and Par. 54 of Rider “A” to the Lease all provide for AIP to recover its costs of suit including but not limited to reasonable attorney’s fees. 24 Upon granting AIP’s motion the Court must require CDC to reimburse AIP for said costs in addition to any damage award. WHEREFORE, AIP demands judgment against CDC for the relief requested in the Answer with Affirmative Defenses and Counterclaims and for summary judgment dismissing CDC’s claims sounding in breach of lease as untimely in violation of section 213 of the CPLR, or, in the alternative as barred by documentary evidence, together with pre and post-judgment interest, attorney’s fees pursuant to the parties’ lease and cost of suit, and such other relief as the court deems appropriate. Dated: Irvington, New York May 6, 2015 Mark E. ‘onstantine, E: 106 North Broadway Irvington, New York 10533 914-631-0410 EXHIBIT “A” 02:44 PM) 51573/2015 WESTCH (FILED: EST COUNTY ER 5 CLERK 02/05/201 INDEX NO. NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER i ete nis CDC DEVELOPMENT PROPERTIES, INC, Index No.: Date Purchased: Plaintiff, Plaintiff designates - against - ‘WESTCHESTER COUNTY for the place of trial AMERICAN INDEPENDENT PAPER MILLS SUPPLY CO., INC. and HUDSON HARBOR SUMMONS HOMES, INC., Basis of Venue Defendants. Plaintiff s Address: serene ken eet ee X 191 Old White Plains Road Tarrytown, New York 10691 TO THE ABOVE NAMED DEFENDANT(S): YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer on plaintiff's attorney: (a) if this Summons is served by its delivery personally within the State of New York, you must appear and answer within TWENTY (20) days after such service; or (b) if this Summons is served by delivery to any person other than you personally, or is served outside the State of New York, or by publication, or by any means other than personal delivery to you within the State of New York, you are allowed THIRTY (30) days after such service; and in case of your failure to appear, judgment will be taken against you by default for the relief demanded herein. Dated: New York, New York February 5, 2015 ours, etc., = 0 65 ae HO. Fgt the Firm 1.0 VITUCCI KLAR LLP Attorneys for Plaintiff CDC DEVELOPMENT PROPERTIES, INC. 90 Broad Street, 3! Floor New York, New York 10004 (212) 683-7100 TO: Via Secretary of State and Personal Service AMERICAN INDEPENDENT PAPER MILLS SUPPLY CO., INC. 15 South Depot Plaza Tarrytown, New York 10591 Via Secretary of State and Personal Service HUDSON HARBOR HOMES, INC. 485 West Putnam Avenue Greenwich, CT 06830 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER antincnnc nei ntnninkna enlace nila omental nmin ie CDC DEVELOPMENT PROPERTIES, INC., Index No. Plaintiff, ERIFIED COMPLAIN’ ~ against - AMERICAN INDEPENDENT PAPER MILLS SUPPLY CO., INC, and HUDSON HARBOR HOMES, INC Defendants sees a tian ie cine mi ea Plaintiff CDC DEVELOPMENT PROPERTIES, INC. (hereinafter referred to as “Plaintiff” and/or “CDC”) by their attorneys, Gallo Vitucci Klar LLP, alleges as and for their verified complaint (the “Complaint”) against the defendants American Independent Paper Mills Supply Co., Inc. (‘AIP’) and Hudson Harbor Station, LLC. (“HHS”).as follows: 1 Plaintiff is a New York corporation duly organized and existing under the law of the State of New York with a business address at 191 Old White Plains Road, Tarrytown, NY 10691 2. Upon information and belief, AIP is a New York corporation duly organized and existing under the law of the State of New York with a business address at 15 South Depot Plaza, Tarrytown, New York 10591 3 Upon information and belief, HHS is a limited liability company with a principal place of business at 485 West Putnam Avenue, Greenwich, CT 06830. 4. Upon information and belief, at all times hereinafter mentioned, Defendant AIP transacted and conducted business within the State of New York. 5 Upon information and belief, at all times hereinafter mentioned, Defendant HHS transacted and conducted business within the State of New York. {00504624.DOC;1 } 6. Upon information and belief, at all times hereinafter mentioned, Defendants AIP regularly did and/or do or solicit business, or engage in other persistent courses of conduct or derives substantial revenue from goods used or consumed in the State of New York. 7. Upon information and belief, at all times hereinafter mentioned, Defendants HHS regularly did and/or do or solicit business, or engage in other persistent courses of conduct or derives substantial revenue from goods used or consumed in the State of New York. 8 Upon information and belief, at all times hereinafter mentioned, Defendant AIP expected or should reasonably have expected their acts to have consequences in the State of New York, and they derived substantial revenue from interstate or international commerce. 9. Upon information and belief, at all times hereinafter mentioned, Defendant HHS expected or should reasonably have expected their acts to have consequences in the State of New York, and they derived substantial revenue from interstate or international commerce. STATEMENT OF FACTS 10. Plaintiff CDC and Defendant AIP entered into a Commercial Lease (hereinafter referred to as “the Lease”) in or about November 2006, wherein, AIP agreed to lease to CDC the premises described as the North Warehouse, consisting of approximately 26,400 square feet of office and warehouse space located at South Depot Plaza (Village of Tarrytown tax lot 1.70-29- 38) in Tarrytown, New York (“subject premises”). A copy of the Lease is annexed hereto and is hereby incorporated into this Complaint. 11. Plaintiff occupied subject premises to conduct their business of providing a sports complex for the general public. 12, Upon information and belief, Defendant AIP leased the subject premises for commercial use to the Plaintiff for said purpose. 13, AIP agreed to lease the subject premises to Plaintiff for a term of ten (10) years commencing on December 1, 2006 and ending on November 30, 2016. 14, Pursuant to the Lease, Paragraph 35, CDC agreed to pay to AIP base year rent, which included base year taxes, as further detailed in said paragraph. 15. Pursuant to the Lease, Paragraph 37, CDC also agreed to pay AIP as additional rental income, any increase in Town, School and/or Village real estate taxes which may have become due during the term of the Lease subsequent to the 2007 Town of Greenburgh Real Estate Taxes, the 2006/07 School District Real Estate Taxes and the 2006/07 Village Real Estate Taxes for the subject premises. 16. It was further agreed by the parties in the Lease that in the event that there was a decrease in Town, School and/or Village real estate taxes for the subject premises, that Plaintiff's monthly and yearly rent would be reduced by its proportionate share. A, CDC’s Rights Under the Lease With Respect to Obtaining a Reimbursement of Taxes Paid to AIP 17, Furthermore, pursuant to the Lease Paragraph 37, the second paragraph, which reads in pertinent part: Landlord reserves the right through available legal remedies, to contest the validity of any taxes, or the amount of the assessed valuation of the realty or any part thereof for any fiscal tax year. If the Landlord shall receive any tax refund. remission or abatement_with respect to the contested taxes, the Landlord {AIP} hall_reimburse Tenant (CDC) for its proportionate share. thereof...Emphasis added. 18. Upon information and belief, AIP did exercise its right to contest the validity of the property tax assessments for the subject premises made by the Assessor of the Town of Greenburgh for each and every year commencing in 1999 and ending in 2007. B Certiorari Event Granting AIP a Reduction in Assessed Value for the Subject Premises 19. Upon information and belief, the first year that AIP’s Petition and Notice to review the property tax assessment upon the subject premises was successful was in 2008 when the court issued an Order reducing the assessed value of said subject premises. 20. Specifically, on or about September 18, 2008, Hon. John R. Lacava in the Supreme Court of the State of New York, County of Westchester issued an Order stating that the assessment of the subject property was thereby reduced, corrected and fixed for the years commencing in 1999 and ending in 2007 (“Order”). 21, As a result of the reduction of the assessment value for the above years, the taxes for the subject premises were thereby reduced for the subsequent years commencing in the tax year 2000 and ending in 2008 and as such, AIP was awarded a tax refund for said years, 22. Upon information and belief, AIP never provided notice to the Plaintiff of the issuance of said Order or of the tax refund that was obtained by AIP. 23. In or about 2014, Plaintiff's became aware of said Order and its findings through their own due diligence and investigation of the Court’s and Town of Greenburgh’s records through their attorneys, Gallo Vitucci Klar LLP. C. Certiorari Event Granting AIP a Tax Refund for the tax years 2000 through 2008 24, In light of the Order which reduced the assessed value of the subject premises for the years 1999 to 2007, AIP was awarded a tax refund for taxes paid retroactively for the tax years 2000 through 2008 in the total amount of $369,954.00. 25. Upon. information and belief, since the Plaintiff was a tenant in the subject premises since November 2006 and therefore paid its proportionate share of the taxes included in their monthly rent for a portion of the 2006 tax year, the entire 2007 and 2008 tax years, pursuant to said Order and Lease, the Plaintiff was entitled to a tax refund for its proportionate share of taxes paid in those years. D. The Effect That the Certiorari Event Had on AIP and Plaintiff’s Past Rent Payments 26. Upon information and belief, AIP never provided Plaintiff with its proportionate share of the tax refund awarded to AIP, as agreed to in the Lease, for a portion of the year 2006 and as such, Plaintiff overpaid their rent in the amount of Four Thousand Three Hundred Eighty- Four Dollars and Sixty-Six Cents ($4,384.66). 27. Upon information and belief, AIP never provided Plaintiff with its proportionate share of the tax refund awarded to AIP, as agreed to in the Lease, for a portion of the year 2007 and as such, Plaintiff overpaid their rent in the amount of Thirty-Two Thousand Two Hundred and Eighty One Dollars and Sixty Two Cents ($32,281.62). 28. Upon information and belief, AIP never provided Plaintiff with its proportionate share of the tax refund awarded to AIP, as agreed to in the Lease, for the tax year 2008 and as such, Plaintiff overpaid their rent in the amount of Thirty-Four Thousand Three Hundred and Sixty Two Dollars and Five Cents ($34,362.05). 29. Upon information and belief, pursuant to said Order, Plaintiff is owed a tax refund for the years 2007 and 2008 in the total amount of Seventy-One Thousand Twenty-Eight Dollars and Thirty-Three Cents ($71,028.33). E, The Effect That the Certiorari Event Had on Plaintiff’s Future Rent Payments 30. Upon information and belief, as a result of the court’s Order, in 2009 AIP’s taxes were reduced in the amount of Fifty-One Thousand Seven Hundred and Forty-Three Dollars and twenty-one cents ($51,743.21) which thereby created a new tax basis for subsequent years. 31. However, upon information and belief, AIP continued to issue rent bills to the Plaintiff reflecting the old tax basis without any reduction being awarded towards rent whatsoever to the Plaintiff, causing the Plaintiff to continue overpaying its rent from 2009 to the present. 32. Upon information and belief, in 2009 Plaintiff overpaid their rent in the amount of Fifty- One Thousand Seven Hundred and Forty-Three Dollars and Twenty-One Cents ($51,743.21) and as such Plaintiff is entitled to a rent refund in said amount. 33. Upon information and belief, in 2010 Plaintiff overpaid their rent in the amount of Fifty- One Thousand Seven Hundred and Forty-Three Dollars and Twenty-One Cents ($51,743.21) and as such Plaintiff is entitled to a rent refund in said amount. 34, Upon information and belief, in 2011 Plaintiff overpaid their rent in the amount of Fifty- One Thousand Seven Hundred and Forty-Three Dollars and Twenty-One Cents ($51,743.21) and as such Plaintiff is entitled to a rent refund in said amount. 35. Upon information and belief, in 2012 Plaintiff overpaid their rent in the amount of Fifty- One Thousand Seven Hundred and Forty-Three Dollars and Twenty-One Cents ($51,743.21) and as such Plaintiff is entitled to a rent refund in said amount. 36. Upon information and belief, in 2013 Plaintiff overpaid their rent in the amount of Fifty. One Thousand Seven Hundred and Forty-Three Dollars and Twenty-One Cents ($51,743.21) and as such Plaintiff is entitled to a rent refund in said amount. 37. Upon information and belief, in 2014 Plaintiff overpaid their rent in the amount of Fifty- One Thousand Seven Hundred and Forty-Three Dollars and Twenty-One Cents ($51,743.21) for the years 2014 and as such Plaintiff is entitled to a rent refund in said amount. 38. Upon information and belief, the total amount of rent overpaid by the Plaintiffs from 2006 to 2014 is in the amount of approximately Three Hundred Eighty-Five Thousand Dollars ($385,000.00). 39. As such, Plaintiff is owed a refund for the overpayment in rent in the amount of approximately Three Hundred Eighty- Five Thousand Dollars ($385,000.00). 40. Upon information and belief, since to date AIP has not provided any refunds to Plaintiff due to said overpayment in rent, as agreed to in the Lease, Plaintiff will be owed additional refunds from June 2014 and continuing. F. AIP’s Obligation Pursuant to the Lease to Conduct Roof Repairs 41. Furthermore, pursuant to the Lease, Paragraph 52 of the Rider, which reads in pertinent part: Except as otherwise provided herein, it is understood and agreed that all maintenance and repairs to the demised premises except structural repairs, shall be done by Tenant at its own cost and expense...lt is agreed that, maintenance and repair of the roof shall_be deemed a structural repair. Emphasis Added. 42. For over a year, Plaintiff has notified AIP orally and in writing through their attorneys, that there were various leaks which emanated from the roof of the subject premises. 43. Plaintiff further advised AIP that said leaks in the roof caused water to accumulate in various areas of the subject premises thereby affecting Plaintiff's business. 44. Upon information and belief, AIP continued to allege that repairs were made to the subject roof, however said repairs were never properly made. 45. As a result of AIP’s failure to repair the roof, Plaintiff is unable to fully use the subject premises as an indoor sports facility. 46. As a result of AIP’s failure to repair the roof, the subject premises are not fit for Plaintiff’s use as intended as an indoor sports facility as referenced in the Lease. 47. Plaintiff has made repeated attempts to address said breach to AIP and invite AIP to cure said breach. 48. To date, AIP has not yet cured said breach with regard to the roof repair as all of Plaintiff's attempts were ignored by AIP. G. CDC’s Notification of the Sale of the Subject Premises By AIP to HHS 49. On or about June 3, 2014, AIP advised Plaintiff in writing that the subject premises was in contract to be sold to HHS with no contingencies and that such closing shall take place within 90 to 120 days. 50. It is upon information and belief that a contract of sale was executed by and between AIP and HHS for the sale and subsequent purchase of the subject premises. 31. Since the Plaintiff is not a party to said contract of sale, upon information and belief, said premises may have already been sold to HHS and as such, HHS has a property interest in the subject premises. 52. Since the Plaintiff is not a party to said contract of sale, upon information and belief, the subject premises will be sold in the near future to HHS and as such, HHS has a property interest in the subject premises. 53. Pursuant to the Lease, since HHS is a “successor” to AIP, HHS is also in breach of said Lease provisions as stated above. 34, Pursuant to the Lease, since HHS is an “assignee” of AIP, HHS is also in breach of said Lease provisions as stated above. FIRST CAUSE OF ACTION (Breach of Lease against AIP) 35. Plaintiff repeats and re-alleges paragraphs 1 through 54 of this Complaint as if fully alleged herein. 36. AIP has materially breached the Lease by not providing Plaintiff with a tax refund as per the court’s Order and as per the terms of the Lease for Plaintiff's overpayment in rent for the years 2006 to 2007 in the amount of $32,281.62. 37. AIP has materially breached the Lease by not providing Plaintiff with a tax refund as per the Court’s Order and as per the terms of the Lease for Plaintiff's overpayment in rent for the years 2007 to 2008 in the amount of $34,362.05. 58. AIP has materially breached the Lease by not providing Plaintiff with a tax refund as per the Court’s Order and as per the terms of the Lease for Plaintiff's overpayment in rent for the years 2008 to 2009 in the amount of $51,743.21. 59. AIP has materially breached the Lease by not providing Plaintiff with a tax refund as per the Court’s Order and as per the terms of the Lease for Plaintiff's overpayment in rent for the years 2009 to 2010 in the amount of $51,743.21. 60. AIP has materially breached the Lease by not providing Plaintiff with a tax refund as per the Court’s Order and as per the terms of the Lease for Plaintiff's overpayment in rent for the years 2010 to 2011 in the amount of $51,743.21. 61. AIP has materially breached the Lease by not providing Plaintiff with a tax refund as per the Court’s Order and as per the terms of the Lease for Plaintiffs overpayment in rent for the years 2011 to 2012 in the amount of $51,743.21. 62. AIP has materially breached the Lease by not providing Plaintiff with a tax refund as per the Court’s Order and as per the terms of the Lease for Plaintiff's overpayment in rent for the years 2012 to 2013 in the amount of $51,743.21. 63. AIP has materially breached the Lease by not providing Plaintiff with a tax refund as per the Court’s Order and as per the terms of the Lease for Plaintiff's overpayment in rent for the years 2013 to 2014 in the amount of $51,743.21. 64. AIP has materially breached the Lease by not providing Plaintiff with a tax refund as per the Court’s Order and as per the terms of the Lease for Plaintiff's overpayment in rent from 2006 to the present day. 65. By reason of the foregoing, Plaintiff has suffered damages in the amount of approximately $380,000.00, as per the terms of the Lease. SECOND CAUSE OF ACTION (Breach of Lease against HHS) 66. Plaintiff repeats and re-alleges paragraphs 1 through 65 of this Complaint as if fully alleged herein. 67. HHS has materially breached the Lease by not providing Plaintiff with a tax refund as per the Court’s Order and as per the terms of the Lease for Plaintiff's overpayment in rent from 2006 to the present in the total amount of approximately $380,000.00. 68. By reason of the foregoing, Plaintiff has suffered damages in the amount of approximately $380,000.00, as per the terms of the Lease. THIRD CAUSE OF ACTION (Constructive Eviction) 69. Plaintiff repeats and re-alleges paragraphs 1 through 68 of this Complaint as if fully alleged herein. 70. Upon information and belief, AIP permitted the roof of the subject premises to remain in disrepair causing the roof to leak water onto Plaintiff's indoor sports field and office spaces located inside the subject premises. 10 TL. By reason of the foregoing acts and omissions, Plaintiff has been unable to use the subject premises for the use as intended and as prescribed for in the Lease. 72. By reason of the foregoing acts and omissions, Plaintiff has been constructively evicted from the subject premises as the indoor sports field and office spaces have been extensively damaged and resulted in disrepair. 73. By reason of the foregoing, Plaintiff is entitled to a judgment, ordering and compelling AIP to repair and restore the roof of the subject premises to its prior condition and compensating Plaintiff for any and all expenses incurred in repairing the indoor sports field and office areas resulting from water emanating from the roof. 74. Plaintiff is also entitled to damages against AIP for loss in revenue sustained by Plaintiff in an amount to be determined at trial. 75. Plaintiff in the alternative is entitled to a refund in rent paid during the time that roof was leaking and in disrepair in an amount to be determined at trial. FOURTH CAUSE OF ACTION (Declaratory Judgment against Defendants)