Preview
FILED: NEW YORK COUNTY CLERK 12/01/2014 06:57 PM INDEX NO. 151330/2014
NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 12/01/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DAVID L. ABRAMSON, M.D. and Index No. 151330/14
SCOT BRADLEY GLASBERG, M.D.,
PRE-ARGUMENT
Plaintiffs, STATEMENT
PURSUANT TO RULE 600.17
V.
74TH LLC and BEN HELLER,
Defendants.
Plaintiffs-appellants David L. Abramson, M.D. and Scot Bradley Glasberg, M.D.
("Plaintiffs"), by their attorneys Pryor Cashman LLP, for their Pre-Argument Statement
submitted pursuant to Rule 600.17 of the Rules of the Supreme Court of the State of New York,
Appellate Division, First Department, state as follows:
1. The title of this action is stated in the caption set forth above.
2. The full names of the original parties are set forth in the caption above.
3. Counsel for Plaintiffs-Appellants is:
Pryor Cashman LLP
Attn.: Eric D. Sherman, Esq.
Cecilia M. Orlando Stighetti, Esq.
7 Times Square
New York, New York 10036-6569
(212) 421-4100
4. Counsel for Defendants-Respondents is:
Smith, Buss & Jacobs, LLP
Attn.: Jennifer Stewart, Esq.
733 Yonkers Avenue
Yonkers, New York 10704
(914) 476-0600
5. Appeal is taken from a Decision and Order of Supreme Court of the State of New
York, County of New York (Mendez, J.) dated November 25, 2014, and entered in the Office of
the Clerk of New York County on November 26, 2014 (the "Order," a true and correct copy of
which is attached hereto as Exhibit "A" with notice of entry), and from each and every part
thereof.
6. The Nature and Object of the Action Below
This action arises from Defendants' breach of the lease agreement dated November 18,
1999 (the "Lease") entered into between Defendants (as "Landlord") and Plaintiffs (as
"Tenants") for use of the ground floor and a portion of the basement (the "Premises") in a
brownstone building known as and located at 42 East 74th Street, New York, New York. At the
Premises, Tenants operate a medical practice specializing in plastic surgery.
On or about November 27, 2013, Landlord desired to sell the Building. Pursuant to the
Lease, Landlord delivered to Tenants an official 30 day "Offer Notice" by which Tenants were
given a 30-day right of first refusal to purchase the Building.
Because Tenants ultimately decided not to acquire the Building, they permitted the Offer
Notice to expire. Thereafter, and also in accordance with the Lease, Landlord served Tenants
with a "Notice of Termination" dated March 5, 2014 by which Landlord exercised its right to
terminate the Lease on six months' notice in exchange for payment of nine months' base rent,
which was to be paid to Tenants on the date of vacatur, which according to the Notice of
Termination, would be September 10, 2014.
Tenants relied on the Notice of Termination and acted upon it. With the Notice of
Termination of the Lease indicating that the lease would terminate on September 10, 2014,
Tenants engaged a broker and began their search to lease new medical office space in Manhattan.
2
On or about March 26, 2014, three weeks after serving its Notice of Termination,
Landlord improperly served Tenants with a "Withdrawal of Notice of Termination of Lease"
dated March 26, 2014, by which Landlord purported to withdraw the Notice of Termination.
On or about May 1 1, 2014, and due to Landlord's improper attempt to withdraw the
Notice of Termination, Tenants amended and served the First Amended Verified Complaint (the
"Complaint"), by which, in pertinent part to this appeal, they amended the first cause of action
for declaratory judgment, seeking a declaration that the Withdrawal of Termination of Lease is
defective, null and void.
7. The Result Reached in the Court Below
On or about October 23, 2014, Plaintiffs moved by order to show cause, pursuant to
CPLR 3212, for an order: (i) granting Plaintiffs partial summary judgment on their first cause of
action for a declaratory judgment adjudging that Plaintiffs are entitled to a declaration that (a) the
Notice of Termination of Lease dated March 5, 2014 remains in full force and effect; (b)
Defendants must pay Plaintiffs nine times the monthly Base Rent as set forth in Article 61(C) of
the Lease upon Plaintiffs' vacatur of the Premises on December 31, 2014; (c) the Withdrawal of
Notice of Termination of Lease dated March 26, 2014 is null and void; and (d) Plaintiffs are not
in default of their obligations under the Lease.
The lower court incorrectly denied Plaintiffs' motion, determining that Plaintiffs had
failed "to make a prima facie showing of entitlement to judgment as a matter of law" and that the
"Termination Notice is null and void, and the March 26, 2014 withdrawal of the Termination
Notice is valid and remains in full force and effect."
In particular, the Court determined that
Tenants did not vacate the Property prior to the September 10, 2014 Termination
Date. The Lease was in effect at the time Landlord withdrew his Termination
3
Notice on March 26, 2014. Nothing in the Lease prohibits Landlord form
withdrawing the Termination Notice prior to the termination date set forth in the
Termination Notice. Further, the nine (9) month termination payment is only
triggered after Landlord provides the Termination Notice and six (6) months have
elapsed since the Termination Notice was served, and Landlord is required to pay
the termination payment on the date Tenants vacate the Property.
8. Grounds for Reversal
The lower court improperly denied Plaintiffs' motion first by concluding that because the
Lease "does not prohibit" Landlord from withdrawing the Termination Notice, Landlord was
free to do so. But the Lease does not have to expressly prohibit the withdrawal of the
Termination Notice for it to be contractually improper, Rather, Defendants' withdrawal of the
Notice of Termination is improper as pursuant to the Lease, fundamental contractual principles
and applicable case law, that Landlord is not allowed to unilaterally withdraw the Notice of
Termination once it makes the explicit election to terminate the Lease. In fact, when the parties
contemplated that Landlord would be permitted to withdraw a notice, the Lease expressly stated
so, as Section 61(B) of the Lease expressly permits Landlord to withdraw its decision to sell the
building prior to service of the Notice of Termination. The lower Court did not consider in its
decision the fact that the Lease does not expressly allow the withdrawal of the Termination
Notice.
Finally, the lower court improperly considered that the Lease terminated on September
10, 2014, instead of December 31, 2014, a date later stipulated by the parties and referenced in
the papers below.
9. There are no related actions between Plaintiffs-Appellants and Defendants-
Respondents.
4
10. No other appeal is pending in this action.
Dated: New York, New York
December 1, 2014
PRYOASHMAN LLP
B
Erie D. Sherman
Cecilia M. Orlando Stighetti
7 Times Square
New York, New York 10036
(212) 421-4100
Attorneys for PlaintiffS-Appellants
TO: Jennifer Stewart, Esq.
Smith, Buss & Jacobs, LLP
733 Yonkers Avenue
Yonkers, New York 10704
(914) 476-0600
Attorneys for Defendants- Respondents
5
Preview
FILED: NEW YORK COUNTY CLERK 12/01/2014 06:57 PM INDEX NO. 151330/2014 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 12/01/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DAVID L. ABRAMSON, M.D. and Index No. 151330/14 SCOT BRADLEY GLASBERG, M.D., PRE-ARGUMENT Plaintiffs, STATEMENT PURSUANT TO RULE 600.17 V. 74TH LLC and BEN HELLER, Defendants. Plaintiffs-appellants David L. Abramson, M.D. and Scot Bradley Glasberg, M.D. ("Plaintiffs"), by their attorneys Pryor Cashman LLP, for their Pre-Argument Statement submitted pursuant to Rule 600.17 of the Rules of the Supreme Court of the State of New York, Appellate Division, First Department, state as follows: 1. The title of this action is stated in the caption set forth above. 2. The full names of the original parties are set forth in the caption above. 3. Counsel for Plaintiffs-Appellants is: Pryor Cashman LLP Attn.: Eric D. Sherman, Esq. Cecilia M. Orlando Stighetti, Esq. 7 Times Square New York, New York 10036-6569 (212) 421-4100 4. Counsel for Defendants-Respondents is: Smith, Buss & Jacobs, LLP Attn.: Jennifer Stewart, Esq. 733 Yonkers Avenue Yonkers, New York 10704 (914) 476-0600 5. Appeal is taken from a Decision and Order of Supreme Court of the State of New York, County of New York (Mendez, J.) dated November 25, 2014, and entered in the Office of the Clerk of New York County on November 26, 2014 (the "Order," a true and correct copy of which is attached hereto as Exhibit "A" with notice of entry), and from each and every part thereof. 6. The Nature and Object of the Action Below This action arises from Defendants' breach of the lease agreement dated November 18, 1999 (the "Lease") entered into between Defendants (as "Landlord") and Plaintiffs (as "Tenants") for use of the ground floor and a portion of the basement (the "Premises") in a brownstone building known as and located at 42 East 74th Street, New York, New York. At the Premises, Tenants operate a medical practice specializing in plastic surgery. On or about November 27, 2013, Landlord desired to sell the Building. Pursuant to the Lease, Landlord delivered to Tenants an official 30 day "Offer Notice" by which Tenants were given a 30-day right of first refusal to purchase the Building. Because Tenants ultimately decided not to acquire the Building, they permitted the Offer Notice to expire. Thereafter, and also in accordance with the Lease, Landlord served Tenants with a "Notice of Termination" dated March 5, 2014 by which Landlord exercised its right to terminate the Lease on six months' notice in exchange for payment of nine months' base rent, which was to be paid to Tenants on the date of vacatur, which according to the Notice of Termination, would be September 10, 2014. Tenants relied on the Notice of Termination and acted upon it. With the Notice of Termination of the Lease indicating that the lease would terminate on September 10, 2014, Tenants engaged a broker and began their search to lease new medical office space in Manhattan. 2 On or about March 26, 2014, three weeks after serving its Notice of Termination, Landlord improperly served Tenants with a "Withdrawal of Notice of Termination of Lease" dated March 26, 2014, by which Landlord purported to withdraw the Notice of Termination. On or about May 1 1, 2014, and due to Landlord's improper attempt to withdraw the Notice of Termination, Tenants amended and served the First Amended Verified Complaint (the "Complaint"), by which, in pertinent part to this appeal, they amended the first cause of action for declaratory judgment, seeking a declaration that the Withdrawal of Termination of Lease is defective, null and void. 7. The Result Reached in the Court Below On or about October 23, 2014, Plaintiffs moved by order to show cause, pursuant to CPLR 3212, for an order: (i) granting Plaintiffs partial summary judgment on their first cause of action for a declaratory judgment adjudging that Plaintiffs are entitled to a declaration that (a) the Notice of Termination of Lease dated March 5, 2014 remains in full force and effect; (b) Defendants must pay Plaintiffs nine times the monthly Base Rent as set forth in Article 61(C) of the Lease upon Plaintiffs' vacatur of the Premises on December 31, 2014; (c) the Withdrawal of Notice of Termination of Lease dated March 26, 2014 is null and void; and (d) Plaintiffs are not in default of their obligations under the Lease. The lower court incorrectly denied Plaintiffs' motion, determining that Plaintiffs had failed "to make a prima facie showing of entitlement to judgment as a matter of law" and that the "Termination Notice is null and void, and the March 26, 2014 withdrawal of the Termination Notice is valid and remains in full force and effect." In particular, the Court determined that Tenants did not vacate the Property prior to the September 10, 2014 Termination Date. The Lease was in effect at the time Landlord withdrew his Termination 3 Notice on March 26, 2014. Nothing in the Lease prohibits Landlord form withdrawing the Termination Notice prior to the termination date set forth in the Termination Notice. Further, the nine (9) month termination payment is only triggered after Landlord provides the Termination Notice and six (6) months have elapsed since the Termination Notice was served, and Landlord is required to pay the termination payment on the date Tenants vacate the Property. 8. Grounds for Reversal The lower court improperly denied Plaintiffs' motion first by concluding that because the Lease "does not prohibit" Landlord from withdrawing the Termination Notice, Landlord was free to do so. But the Lease does not have to expressly prohibit the withdrawal of the Termination Notice for it to be contractually improper, Rather, Defendants' withdrawal of the Notice of Termination is improper as pursuant to the Lease, fundamental contractual principles and applicable case law, that Landlord is not allowed to unilaterally withdraw the Notice of Termination once it makes the explicit election to terminate the Lease. In fact, when the parties contemplated that Landlord would be permitted to withdraw a notice, the Lease expressly stated so, as Section 61(B) of the Lease expressly permits Landlord to withdraw its decision to sell the building prior to service of the Notice of Termination. The lower Court did not consider in its decision the fact that the Lease does not expressly allow the withdrawal of the Termination Notice. Finally, the lower court improperly considered that the Lease terminated on September 10, 2014, instead of December 31, 2014, a date later stipulated by the parties and referenced in the papers below. 9. There are no related actions between Plaintiffs-Appellants and Defendants- Respondents. 4 10. No other appeal is pending in this action. Dated: New York, New York December 1, 2014 PRYOASHMAN LLP B Erie D. Sherman Cecilia M. Orlando Stighetti 7 Times Square New York, New York 10036 (212) 421-4100 Attorneys for PlaintiffS-Appellants TO: Jennifer Stewart, Esq. Smith, Buss & Jacobs, LLP 733 Yonkers Avenue Yonkers, New York 10704 (914) 476-0600 Attorneys for Defendants- Respondents 5