Preview
(FILED:
NEW_YORK_COUNTY_CLERK_1170372014
06:16 PM INDEX NO. 151330/2014
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/03/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DAVID L. ABRAMSON, M.D. and SCOT Index No. 151330/14
BRADLEY GLASBERG, M.D.,
Plaintiffs, AFFIRMATION IN OPPOSITION
- against - TO MOTION FOR PARTIAL
SUMMARY JUDGMENT
74" LLC and BEN HELLER,
Defendants.
JENNIFER L. STEWART, an attorney admitted to practice before this Court, affirms
subject to penalties for perjury as follows:
1 I am associated with the firm of Smith, Buss & Jacobs, LLP, attorneys for
Defendants in this action. I am fully familiar with the facts and circumstances of this matter.
2 I submit this affirmation in opposition to Plaintiffs’ motion for partial summary
judgment. This is a commercial real estate dispute in which the Plaintiffs, Tenants under the
Lease at issue here, have successfully thwarted Defendant Landlord’s efforts to sell the property,
but wish to prevent Defendant from withdrawing notices relating to the sale. The Lease simply
does not permit Plaintiffs to do so.
3 Further, Plaintiffs’ motion cannot be granted because there are material issues of
fact in dispute and Plaintiffs have failed to provide complete discovery necessary to defend this
motion. This motion and the withholding of discovery is purely tactical, as Plaintiffs are well
aware that Defendants are unable to provide affidavit evidence regarding many of the false and
exaggerated claims in the Glasberg Affidavit because the only individual with personal
knowledge of all of the facts, Defendant Ben Heller, recently suffered a stroke and is medically
incapacitated.
4 Plaintiffs rely on a notice given by Defendant 74" LLC on March 5, 2014, and
withdrawn on March 26, 2014, terminating the Lease effective in September 2014 in connection
with a sale that was contemplated in October 2014. Defendants withdrew that notice on March
26, 2014, after Plaintiffs prevented the sale by their action. Plaintiffs ask this Court, contrary to
the Lease, the conduct and history between the parties, and well-established law, to declare the
notice irrevocable. But the Lease does not say that notices are irrevocable, and in fact permits
such withdrawal, as demonstrated by the fact that the Plaintiffs accepted Defendants’ withdrawal
of a similar Notice of Termination shortly before they refused to accept the present one.
5 The Court should deny the motion. As a preliminary matter, it is premature, as
significant discovery from Plaintiffs relating to the motion remains outstanding. Defendants have
made full disclosure of all matters relating to this action, and Plaintiffs have used that production
in the present motion. See Motion Exhibit F. Plaintiffs, however, have refused to produce
documents directly relevant to the allegations in the Complaint and the issues in this motion. And
the Plaintiffs’ limited production is riddled with unexplained redactions without a privilege log.
While Defendants agreed to the expedited briefing schedule requested by Plaintiffs for this
motion, they did not agree to waive outstanding discovery or discovery relevant to this motion.
In fact, during the conference at which the briefing schedule was set, the undersigned specifically
advised Plaintiffs’ counsel that its discovery was incomplete and that the outstanding discovery
would provide a defense to the present motion if it were not supplemented. But Plaintiffs have
not provided the outstanding discovery or explained their redactions or provided a privilege log.
6. Even with the incomplete discovery that has been provided, it is clear that there
are disputed issues of material fact that preclude a grant of even partial summary judgment.
However, Defendants are unable to counter all of the misleading and inaccurate factual claims in
Plaintiff Glasberg’s Affidavit. 74°" LLC is a single member real estate holding company. Its
single member is Ben Heller. As Plaintiffs are well aware, Mr. Heller suffered a stroke in August
2014. Although he has been receiving rehabilitation therapy since that time, at present he
remains unable to meaningfully participate in the defense of this case. See Physician’s Letter,
attached as Exhibit A. Even without an affidavit from Mr. Heller, the documentary evidence and
gaps in Plaintiffs’ production are sufficient to demonstrate material facts in dispute that preclude
summary judgment.
7 Additionally, this opposition is supported by the affidavit of Thomas W. Smith,
an attorney involved with the issuance and withdrawal of the notices at issue here, who has
personal knowledge of matters relevant to this motion. See Smith Affidavit.
8 Nor can Plaintiffs demonstrate that they are entitled to judgment as a matter of
law. Plaintiffs’ papers are devoid of any authority that would require the Court to hold the notice
irrevocable in the absence of detrimental reliance by the Plaintiffs. Plaintiffs’ position is contrary
to the language of the Lease and the course of conduct between and among the parties.
9 Plaintiffs’ limited discovery demonstrates that, contrary to the claim made in the
Glasberg Affidavit, Plaintiffs did not rely to their detriment on the March 5, 2014 notice before it
was revoked. Plaintiffs did nothing for months after the notice was revoked.
10. The Lease simply does not provide that the March 4, 2014 notice was irrevocable.
11. The parties have historically permitted the revocation of notices under the Lease,
even under Lease provisions that do not specifically permit revocation. In fact, Plaintiffs
accepted revocation of a February 2014 Notice of Termination just weeks before they refused to
accept the revocation of the March 5, 2014 notice. Neither of the relevant Lease provisions
provided that notices given were irrevocable.
12. Accordingly, the Court should deny the Plaintiffs’ motion for partial summary
judgment.
SUMMARY OF MATERIAL FACTS IN DISPUTE
13. Plaintiffs have leased ground floor medical office space from Defendants since
1999, and signed a five-year lease renewal in 2009. That renewal expires and the Lease will
terminate by its terms at the end of March 2015.
14. In an effort to garner the sympathy of the Court, Plaintiffs exaggerate the
circumstances of the relationship between the parties beyond recognition, claiming complete
“victimization” by the Defendants. This is nonsense. According to Plaintiffs, Defendants have
always been impossible to deal with or get ahold of, and have refused to perform basic
maintenance. If it were really so terrible, Plaintiffs would not have stayed so long, and would not
have renewed their lease in 2009. Plaintiffs also claim to operate “‘one of the tri-state area’s most
successful plastic surgery practices” in the space, both in the present motion and in their
Complaint (although they have refused to provide any discovery relevant to this claim). Glasberg
Aff. at para. 38. Their claim to have been “victimized” by an elderly man attempting to put his
affairs in order who is now incapacitated by a stroke is improbable, to say the least.
15. The Glasberg Affidavit contains a one-sided and inaccurate characterization of the
historical relationship between the parties, made to mislead the Court in full knowledge that the
other side is presently unable to present the complete picture. That history is squarely in dispute,
and was placed in issue by Plaintiffs in paragraphs 4-12 of the Glasberg Affidavit.
16. In fact, the temperature issues Plaintiffs complain about are their own
responsibility, not the Defendants’. Articles 56 and 56A of the Lease squarely place
responsibility for heating and ventilation after taking possession of the space on Plaintiffs. The
entirely new allegations in the Glasberg Affidavit regarding unspecified, unsupported failures to
clear snow and buckets of water from the property are found nowhere in the Complaint and are
supported by nothing in the limited and incomplete discovery produced by Plaintiffs. These
factual allegations are in dispute.
17. The specific factual allegation that Landlord “transferred the heating system and
certain concomitant elements of the ventilation system to a different area of the basement,” is
also disputed. Glasberg Aff at 9. Plaintiffs allege that Defendants moved the heating system, but
as Defendants indicated in response to discovery demands before Mr. Heller became
incapacitated, it never happened. Defendants explained in their April 2014 response (more than
six months before Plaintiffs responded to any discovery), that “Defendants have no responsive
documents relating to any decision to move portions of the systems into or within the basement
of the Building, as Landlord never made such a decision or took such an action.” Defendants’
Response to Plaintiffs’ First Demand for Discovery and Inspection, Response to Demand 7,
attached as Exhibit B.
18. During late 2013, Defendant Ben Heller, the sole member of 74‘ LLC,
determined to put some of his affairs in order. To that end, he decided to explore the possibility
of selling the property located at 42A East 74" Street.
19. On November 11, 2013, Mr. Heller, acting on behalf of 74 LLC, sent
correspondence to Plaintiffs requesting payment of additional rent due attributable to water and
real estate taxes, and advising that he wished to sell the building and was giving Plaintiffs the
notice required under the Lease:
Separately, note that the lease requires me to give you notice if I wish
to sell the building. This is to advise that I have just given the Edward
L. Cave division of Brown, Harris Stevens the listing to sell the
building at a sale price of $17,600,000.00 Should you desire to buy the
building and have the financial capacity to do so, please advise.
Glasberg Aff. Exhibit D, page two (upside down). In their factual discussion, Plaintiffs entirely
ignore this letter and attempt to suggest that subsequent correspondence on this issue was
retaliation for Plaintiffs’ complaints. See Glasberg Aff. at paragraph 12-20. Defendants’ alleged
bad faith, as alleged and placed in issue by Plaintiffs, is a material factual issue in dispute.
20. On November 18, 2013, Plaintiffs responded with a letter complaining about a
heating issue and stating both that “we are more than happy to pay the tax balance due,” and that
they would “withhold the tax payment due.” Glasberg Aff Exhibit B.
21. On November 27, 2013, Defendants served a second, more formal “Notice of
First Opportunity to Acquire 42 East 74" Street (“Offer Notice”)” and suggested a meeting to
resolve the disputes between Plaintiffs and Defendants.
22. Upon information from Mr. Heller prior to his illness, and belief, after numerous
telephone calls and visits, a meeting was scheduled. At the appointed time, Mr. Heller travelled
from Connecticut to New York specifically to meet with Plaintiffs, and was told only upon
arrival that the meeting had been cancelled, without further explanation. To this date, Plaintiffs
have provided no explanation for their cancellation of the meeting, nor have they made any effort
to reschedule.
23. Plaintiffs initially took the position that the November 11 and 27, 2013 notices
were insufficient to satisfy Article 61(B) of the Lease. See Verified Complaint (without exhibits)
4146-52, 76-79, attached as Exhibit C. However, they have since reversed position and now
agree that the November notices were proper. See Amended Complaint {ff 54-57, attached to
Glasberg Aff as Exhibit A. In any event, Plaintiffs did not exercise their opportunity to purchase
the building conferred by the November notices as provided in Article 61(B) of the Lease.
24. On January 22, 2014, after Plaintiffs still had not paid the outstanding additional
rent due for water charges and real estate taxes, Defendants served through counsel a Notice and
statement of outstanding water charges and real estate taxes. See Affidavit of Thomas W. Smith.
That notice was followed up with a Notice to Tenant of Termination of Lease dated February 4,
2014. Although additional rent attributable to water and real estate taxes was outstanding at this
time, the figures in the notices had been calculated by counsel using information from an
incorrect address. Plaintiffs claim that these notices were “entirely pretextual and in bad faith”;
however, that allegation is starkly disputed. As Plaintiffs are well aware, the figures in the
notices were the result of an error on the part of counsel. Plaintiffs were advised of the error and
that the notices were being withdrawn by telephone in February 2014, prior to the date Plaintiffs
filed the Verified Complaint in this action, and again in correspondence dated March 4, 2014,
when the notices were formally withdrawn, see Letter from Thomas Smith to Eric Sherman,
dated March 4, 2014. Notwithstanding the facts, Plaintiffs continue to allege bad faith on the part
of Defendants.
25. Plaintiffs did in fact owe additional rent attributable to water and real estate taxes
at the time. There is also no dispute that the amounts stated in the January 22, 2014 and February
4, 2014 notices were incorrect. The reason for the notices, however, which Plaintiffs have elected
to put in issue, is sharply disputed. Plaintiffs claim it was a bad faith “scheme” to evict, while
Defendants have repeatedly explained that it was an error by counsel. Glasberg Aff at 22-23.
And, contrary to Plaintiffs’ position, there is nothing remarkable in a landlord planning to evict
tenants who have not paid additional rent due under the Lease, particularly where it wishes to
sell the building.
26. Contrary to the factual assertion in the Glasberg Affidavit, Mr. Smith advised
Plaintiffs that Defendants were withdrawing the January 22, 2014 and February 4, 2014 notices
before the Plaintiffs filed their Complaint. See Smith Affidavit. This fact, which Plaintiffs have
placed in issue, is in dispute. Glasberg Aff. at 27.
27. The January and February notices were formally withdrawn on March 5, 2014,
after Plaintiffs filed their Complaint taking the position that the notices were still in effect despite
counsel’s advice that they were being withdrawn. See Exhibit C. With that correspondence,
Defendants provided a statement of additional rent due totaling $12,169.82, and served a “Notice
of Termination of Lease pursuant to Lease Article 61(C).”
28. Defendants explained that the March 5, 2014 notice was served without prejudice
to Defendants’ rights under the Lease:
Enclosed is a six-month termination of the Lease which will be
delivered to Tenant to preserve Owner’s options. This letter is neither a
waiver or admission of any kind on the part of Owner, nor of any rights
Owner may have with regard to the Lease, including any right to
enforce any obligation of Tenant under the Lease.
See Correspondence dated March 5, 2014, attached as Exhibit D.
29. When the March 5, 2014 notice was served, Defendants had a purchaser for the
property who was prepared to close in October 2014. However, shortly thereafter, when that
purchaser learned of the Plaintiffs’ position that the November notices were insufficient under
the lease, the deal fell through. Accordingly, on March 26, 2014, Defendants retracted the notice
and withdrew the property from the market.
30. Article 61(C) of the Lease provides for termination effective six months following
notice to the tenant, and says nothing about whether such notice may be revoked prior to the
effective termination date. It also provides that the termination is not effective and no payment is
due until “the date that Tenant shall vacate the Premises.” Lease Article 61(C). To date, Plaintiffs
have not vacated the premises.
31. Accordingly, when the deal fell through, and Tenants having waived their right to
purchase, Defendants withdrew the building from the market as permitted by Article 61.
Plaintiffs claim that this withdrawal, like all of the Defendants’ other actions, was done in bad
faith. In fact, however, it was the direct result of the Plaintiffs filing the present action and
frustrating the sale. The facts surrounding the withdrawal are material issues in dispute.
32. Notably, Plaintiffs did not include their initial Complaint as an attachment to their
motion; it is therefore annexed hereto. See Exhibit C. In their initial Complaint, Plaintiffs sought
a declaration that the initial notices that the Defendants wished to sell the building, delivered in
November 2013, were improper. In the Amended Complaint, they reverse course, accept the
notices, and instead seek to enforce the subsequently withdrawn March 5, 2014 notice. See
Glasberg Aff. Exhibit A.
33. It is disputed whether Defendants did anything in reliance on the March 5, 2014
notice before March 26, 2014. Certainly nothing in Plaintiffs’ production supports the allegation
in the Glasberg Affidavit that “Tenants relied on the Notice of Termination and acted upon it”
during that period. Glasberg Aff. at para. 30. Like the others, this material dispute of fact
precludes the Court from granting the present motion for summary judgment.
ARGUMENT
The Motion Must be Denied Because Material Issues of Fact Are In Dispute
34. “Since summary judgment is the procedural equivalent ofa trial, if there is any
doubt as to the existence of a triable issue or where the material issue of fact is ‘arguable,’
summary judgment must be denied.” Museums at Stony Brook v Vil. of Patchogue Fire Dept.,
146 AD2d 572, 573 [2d Dept 1989]. Here, Plaintiffs motion, particularly the Glasberg Affidavit,
raises numerous disputed issues of fact that preclude granting its motion.
35. As discussed in detail in the fact section above, Plaintiffs have placed in issue the
history between the parties to the Lease, Defendants’ reasons for serving various notices
including the ones at issue in this action, Defendants’ good faith, an alleged change in the
heating equipment in the basement of the building, and whether Plaintiffs relied on the
withdrawn March 5, 2014 notice to their detriment before it was withdrawn. As discussed in
detail above in the discussion of material facts in dispute, these are all material disputed issues of
fact. And they all preclude a grant of summary judgment.
36. An ambiguity in a commercial lease will preclude summary judgment in a
declaratory judgment action based on the ambiguous provision. Brooklyn Pennsylvania CVS,
Inc. v. Starrett City Associates, 294 A.D.2d 108, 108-09 (1* Dept 2002) (“On this record, the
motion court also correctly found an ambiguity, and therefore an issue of fact, as to the date from
which the escalation clause was to be measured, since, among other reasons, “commencement
date” as set forth in the 1986 lease was not a defined term to be necessarily carried over into
subsequent agreements for all purposes, but simply a statement as to the starting date of the 1986
lease term.”). An ambiguity exists where the terms of a contract could suggest “more than one
meaning when viewed objectively by a reasonably intelligent person who has examined the
context of the entire integrated agreement and who is cognizant of the customs, practices, usages
and terminology as generally understood in the particular trade or business.” Lightfoot v. Union
Carbide Corp., 110 F.3d 898, 906 (2d Cir.1997).
37. Defendants do not read the Lease as ambiguous and understand that Notices of
Termination may be withdrawn prior to the termination date absent detrimental reliance, since
the Lease says nothing about notices being irrevocable. This understanding is consistent with the
prior practice of the parties. Plaintiffs however, at least for purposes of the present motion, take a
different view, assigning a very specific interpretation to an absence of controlling language.
Where a contract is susceptible to multiple divergent interpretations, it is ambiguous as a matter
of law, creating a disputed issue of fact that precludes summary judgment or a declaratory
judgment. Brooklyn Pennsylvania CVS, Inc. v. Starrett City Associates, 294 A.D.2d 108, 108-
09, 742 N.Y.S.2d 8, 10 (1 Dept. 2002).
38. Accordingly, summary judgment must be denied.
The Motion Must Be Denied Because Plaintiffs Cannot
Demonstrate Entitlement to Judgment as a Matter of Law
39. It is uncontroversial that Notices of Termination generally may be withdrawn
even after an action has been filed. See Eve & Mike Pharmacy, Inc. v. Greenwich Pooh. LLC,
107 A.D.3d 505, 505 (1* Dept 2013) (withdrawal of notice of termination mooted declaratory
judgment action). In fact, it has happened without objection in this case. See Exhibit D.
40. Plaintiffs’ position to the contrary is unsupported by the Lease.
Al. Plaintiffs accepted withdrawal of a prior Notice of Termination that had been
issued pursuant to Article 42 of the Lease. Like Article 61, Article 42 neither provides for
revocable or irrevocable notices; it is entirely silent on the issue. Nonetheless, Plaintiffs accepted
that the Notice issued under Article 42 could be withdrawn. But its argument in the present
motion would prohibit withdrawal of that notice as well.
42. Plaintiffs also argue that the March 5, 2014 notice was irrevocable because
Article 61(C) does not specifically permit Landlord to withdraw the property from the market,
where Article 61(B) does. But Plaintiffs’ argument is comparing apples to oranges, and for the
doctrine of “expression unius” to apply, the provisions must be similar. Here, they are not.
43. Article 61(B) of the Lease gives Tenant a first opportunity to purchase the
property if the Landlord wishes to sell. The Landlord issues an Offer Notice, and the Tenant may
exercise its option by sending Landlord a 10% down payment and giving written notice to
Landlord within 30 days. The Tenant and Landlord must then sign a contract within 15 days and
close in 60. If Tenant fully complies with the provisions of this Section, Landlord would be
required to sell to Tenant. However, the provision clarifies that if Tenant waives its rights by
failing to respond to the notice, sign a contract, or timely close, the Landlord is free to withdraw
the property from the market or sell to someone else:
TIME SHALL BE OF THE ESSENCE with respect to Tenant’s
election to purchase the building and a failure by Tenant to deliver
written notice of its election to purchase the building and the
Downpayment within thirty (30) days after receipt of the Offer Notice
or to purchase the building within sixty (60) days of Tenant’s election,
as the case may be, shall be deemed, in either case, an irrevocable
waiver to Tenant’s rights under this Section and the same shall be of no
further force and effect, it being expressly understood that the
foregoing option to purchase the Building shall be a “one-time” option
and that if Tenant shall waive its rights as aforesaid, Owner shall be
free to withdraw the building from the market or to sell the building on
any terms Owner sees fit.
44. Lease Section 61(C), however, deals with the entirely different issue of how
Landlord may terminate the lease if it wishes to sell for a third party. It contains nothing that
would bind the Landlord to sell to that third party, so there is no need for language like that in
Article 61(C) explaining Landlord’s right not to sell to that party. It would make no sense for
Section 61(C) to contain language permitting the Landlord to withdraw the property from the
market, since Section 61(C) contains nothing that would limit that right.
45. Quite simply, the provisions are not similar, and the doctrine of “expressio unius
est exclusion alterius” is therefore misplaced. Section 61 (C) is the orange to Section 61(B)’s
apple.
46. Nothing in the Lease limits the Defendants’ right to withdraw a Notice of
Termination before its effective date. Nor do Plaintiffs cite a single case or statute that would
require that result. Their motion for summary judgment must therefore be denied.
The Motion Must be Denied Because Discovery is Outstanding from Plaintiffs
47. Rule 3212(f) of the Civil Practice Law and Rules provides that a court may deny a
motion for summary judgment, “[s]hould it appear from affidavits submitted in opposition to the
motion that facts essential to justify opposition may exist but cannot then be stated.” “This is
especially so when the opposing party has not had a reasonable opportunity for disclosure prior
to the making of the motion” Jones v Am. Commerce Ins. Co., 92 AD3d 844, 845 [2d Dept
2012] (quoting James v. Aircraft Serv. Intl. Group, 84 A.D.3d 1026,1027 [2d Dept 2011] and
Baron_v. Incorporated Vil. of Freeport, 143 A.D.2d 792, 793 [2d Dept. 1988]. The Second
Department routinely requires that motions for summary judgment be denied where the opposing
party has not had a meaningful opportunity to conduct discovery. See Jones v Am. Commerce
Ins. Co., 92 AD3d at 845 (reversing grant of summary judgment); James v. Aircraft Serv. Intl.
Group, 84 A.D.3d at 1027 (affirming denial of summary judgment).
48. Plaintiffs filed the present motion before Defendants had a meaningful
opportunity to conduct discovery, and Plaintiffs have deliberately withheld key categories of
information and inexplicably redacted much of what they did produce.
49. Despite the fact that Defendants served document demands in June 2014, and
served responses to Plaintiffs’ discovery demands in April 2014, Plaintiffs delayed their response
until October 2014, less than two weeks before filing the present motion on an expedited
schedule by Order to Show Cause.
50. This late production is woefully incomplete. The delayed production, coupled
with the expedited schedule on this motion, have deprived Defendants of a meaningful
opportunity to conduct discovery.
51. Although Plaintiffs failed to correlate their document production to Defendants’
requests as required by CPLR §3122(a), a review suggests that, other than the lease and certain
records relating to payment of rent, the documents are responsive primarily to Demands 31
through 34, targeting Plaintiffs’ claimed detrimental reliance on the notice. These documents are
redacted without explanation or privilege log. See Plaintiffs’ Response to Defendants’ First
Demand for Discovery and Inspection, attached as Exhibit E; Excerpts from Production, attached
as Exhibit F. These documents do demonstrate a disputed issue of material fact as to whether
Plaintiffs relied to their detriment on the March 5, 2014 notice before it was withdrawn. In his
affidavit, Dr. Glasberg claims that Plaintiffs did rely to their detriment on the March 5, 2014
notice. But the discovery demonstrates that they did nothing until weeks after the notice was
withdrawn. See Exhibit F. The entire reliance claim appears to be based on Defendant
Glasberg’s receipt of a single email from a broker regarding available medical office space. See
Motion Exhibit J. That a broker sent an email does not demonstrate that Plaintiffs did anything
in reliance on the notice before it was revoked, and the most they did afterwards was exchange
emails with brokers. If the Plaintiffs did anything else, it was excluded from or redacted in their
document production.
52. Plaintiffs indicated that numerous documents “would be provided,” but they have
not yet done so. These include documents “upon which you base the allegation in paragraph 63
that Landlord may not withdraw a Notice of Termination of the Lease.” Request and Response
29. Additionally, they include documents relevant to many of the issues placed in issue by the
Glasberg Affidavit, including the temperature issue (Requests and Responses 3, 6, 7, 9, 14, 21,
22, 24), the claim that Defendants moved the heating system in 2011 (Request and Response 23),
the condition of the premises, (Request and Response 5), notice to Defendants of the alleged
heating or ventilation issues (Requests and Responses 25, 30), and the alleged harm to Plaintiffs’
practice or patients from the heating issue (Request and Response 11, 12, 13, 14, 16, 17, 26 ).
53. Plaintiffs entirely refused to provide documents responsive to several of
Plaintiffs key requests relating directly to the allegations in the Complaint and at issue in this
motion. See Exhibit E. These include documents relating to the claim that Plaintiffs operate one
of the tri-state’s most successful plastic surgery practices, specifically alleged in the Complaint
and in the Glasberg Affidavit (Request and Response 10), documents relating to the Plaintiffs’
claim that the alleged temperature issue harmed their practice or drove patients away (Request
and Response 27, 28) and documents relevant to Plaintiffs’ financial condition, directly relevant
to their ability to exercise their right to purchase the property pursuant to the November 2013
notices. The ability to purchase is relevant because Defendants believe that Plaintiffs never had
the ability to purchase the property, and their intention from their first objection to the November
notices was simply to thwart and frustrate Defendants’ right to sell under the Lease. (Request and
Response 35, 36, 37, 38).
54. Plaintiffs’ dilatory conduct with respect to discovery, and their incomplete
production, precludes granting their motion for summary judgment. This is particularly so where
Plaintiffs have used Defendants’ complete discovery in connection with their motion, but seek to
avoid having to provide their own responses.
55. The present expedited motion for summary judgment is a clear tactical effort to
avoid discovery and take advantage of Mr. Heller’s stroke and resulting incapacity to gain
advantage under a commercial lease. It is clearly not Plaintiffs who have suffered
“victimization” here.
CONCLUSION
56. Because the present motion is prematurely made before Defendants have had a
meaningful opportunity to conduct discovery, because the Plaintiffs have failed to demonstrate
prima facie entitlement to judgment as a matter of law, and because there are material facts in
dispute, Defendants respectfully submit that the present motion must be denied. Accordingly,
Defendants respectfully request an order denying the present motion and setting forth deadlines
for the completion of discovery and the taking of Plaintiffs’ depositions.
Dated: November 3, 2014
Yonkers, New York
SMITH, BUSS & JAC S, LLP
By:
teow:
oma’ W, Smith
‘eys for Defendants
733 Yonkers Ave., Suite 200
Yonkers, New York 10704
(914) 476-0600
Preview
(FILED: NEW_YORK_COUNTY_CLERK_1170372014 06:16 PM INDEX NO. 151330/2014 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/03/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DAVID L. ABRAMSON, M.D. and SCOT Index No. 151330/14 BRADLEY GLASBERG, M.D., Plaintiffs, AFFIRMATION IN OPPOSITION - against - TO MOTION FOR PARTIAL SUMMARY JUDGMENT 74" LLC and BEN HELLER, Defendants. JENNIFER L. STEWART, an attorney admitted to practice before this Court, affirms subject to penalties for perjury as follows: 1 I am associated with the firm of Smith, Buss & Jacobs, LLP, attorneys for Defendants in this action. I am fully familiar with the facts and circumstances of this matter. 2 I submit this affirmation in opposition to Plaintiffs’ motion for partial summary judgment. This is a commercial real estate dispute in which the Plaintiffs, Tenants under the Lease at issue here, have successfully thwarted Defendant Landlord’s efforts to sell the property, but wish to prevent Defendant from withdrawing notices relating to the sale. The Lease simply does not permit Plaintiffs to do so. 3 Further, Plaintiffs’ motion cannot be granted because there are material issues of fact in dispute and Plaintiffs have failed to provide complete discovery necessary to defend this motion. This motion and the withholding of discovery is purely tactical, as Plaintiffs are well aware that Defendants are unable to provide affidavit evidence regarding many of the false and exaggerated claims in the Glasberg Affidavit because the only individual with personal knowledge of all of the facts, Defendant Ben Heller, recently suffered a stroke and is medically incapacitated. 4 Plaintiffs rely on a notice given by Defendant 74" LLC on March 5, 2014, and withdrawn on March 26, 2014, terminating the Lease effective in September 2014 in connection with a sale that was contemplated in October 2014. Defendants withdrew that notice on March 26, 2014, after Plaintiffs prevented the sale by their action. Plaintiffs ask this Court, contrary to the Lease, the conduct and history between the parties, and well-established law, to declare the notice irrevocable. But the Lease does not say that notices are irrevocable, and in fact permits such withdrawal, as demonstrated by the fact that the Plaintiffs accepted Defendants’ withdrawal of a similar Notice of Termination shortly before they refused to accept the present one. 5 The Court should deny the motion. As a preliminary matter, it is premature, as significant discovery from Plaintiffs relating to the motion remains outstanding. Defendants have made full disclosure of all matters relating to this action, and Plaintiffs have used that production in the present motion. See Motion Exhibit F. Plaintiffs, however, have refused to produce documents directly relevant to the allegations in the Complaint and the issues in this motion. And the Plaintiffs’ limited production is riddled with unexplained redactions without a privilege log. While Defendants agreed to the expedited briefing schedule requested by Plaintiffs for this motion, they did not agree to waive outstanding discovery or discovery relevant to this motion. In fact, during the conference at which the briefing schedule was set, the undersigned specifically advised Plaintiffs’ counsel that its discovery was incomplete and that the outstanding discovery would provide a defense to the present motion if it were not supplemented. But Plaintiffs have not provided the outstanding discovery or explained their redactions or provided a privilege log. 6. Even with the incomplete discovery that has been provided, it is clear that there are disputed issues of material fact that preclude a grant of even partial summary judgment. However, Defendants are unable to counter all of the misleading and inaccurate factual claims in Plaintiff Glasberg’s Affidavit. 74°" LLC is a single member real estate holding company. Its single member is Ben Heller. As Plaintiffs are well aware, Mr. Heller suffered a stroke in August 2014. Although he has been receiving rehabilitation therapy since that time, at present he remains unable to meaningfully participate in the defense of this case. See Physician’s Letter, attached as Exhibit A. Even without an affidavit from Mr. Heller, the documentary evidence and gaps in Plaintiffs’ production are sufficient to demonstrate material facts in dispute that preclude summary judgment. 7 Additionally, this opposition is supported by the affidavit of Thomas W. Smith, an attorney involved with the issuance and withdrawal of the notices at issue here, who has personal knowledge of matters relevant to this motion. See Smith Affidavit. 8 Nor can Plaintiffs demonstrate that they are entitled to judgment as a matter of law. Plaintiffs’ papers are devoid of any authority that would require the Court to hold the notice irrevocable in the absence of detrimental reliance by the Plaintiffs. Plaintiffs’ position is contrary to the language of the Lease and the course of conduct between and among the parties. 9 Plaintiffs’ limited discovery demonstrates that, contrary to the claim made in the Glasberg Affidavit, Plaintiffs did not rely to their detriment on the March 5, 2014 notice before it was revoked. Plaintiffs did nothing for months after the notice was revoked. 10. The Lease simply does not provide that the March 4, 2014 notice was irrevocable. 11. The parties have historically permitted the revocation of notices under the Lease, even under Lease provisions that do not specifically permit revocation. In fact, Plaintiffs accepted revocation of a February 2014 Notice of Termination just weeks before they refused to accept the revocation of the March 5, 2014 notice. Neither of the relevant Lease provisions provided that notices given were irrevocable. 12. Accordingly, the Court should deny the Plaintiffs’ motion for partial summary judgment. SUMMARY OF MATERIAL FACTS IN DISPUTE 13. Plaintiffs have leased ground floor medical office space from Defendants since 1999, and signed a five-year lease renewal in 2009. That renewal expires and the Lease will terminate by its terms at the end of March 2015. 14. In an effort to garner the sympathy of the Court, Plaintiffs exaggerate the circumstances of the relationship between the parties beyond recognition, claiming complete “victimization” by the Defendants. This is nonsense. According to Plaintiffs, Defendants have always been impossible to deal with or get ahold of, and have refused to perform basic maintenance. If it were really so terrible, Plaintiffs would not have stayed so long, and would not have renewed their lease in 2009. Plaintiffs also claim to operate “‘one of the tri-state area’s most successful plastic surgery practices” in the space, both in the present motion and in their Complaint (although they have refused to provide any discovery relevant to this claim). Glasberg Aff. at para. 38. Their claim to have been “victimized” by an elderly man attempting to put his affairs in order who is now incapacitated by a stroke is improbable, to say the least. 15. The Glasberg Affidavit contains a one-sided and inaccurate characterization of the historical relationship between the parties, made to mislead the Court in full knowledge that the other side is presently unable to present the complete picture. That history is squarely in dispute, and was placed in issue by Plaintiffs in paragraphs 4-12 of the Glasberg Affidavit. 16. In fact, the temperature issues Plaintiffs complain about are their own responsibility, not the Defendants’. Articles 56 and 56A of the Lease squarely place responsibility for heating and ventilation after taking possession of the space on Plaintiffs. The entirely new allegations in the Glasberg Affidavit regarding unspecified, unsupported failures to clear snow and buckets of water from the property are found nowhere in the Complaint and are supported by nothing in the limited and incomplete discovery produced by Plaintiffs. These factual allegations are in dispute. 17. The specific factual allegation that Landlord “transferred the heating system and certain concomitant elements of the ventilation system to a different area of the basement,” is also disputed. Glasberg Aff at 9. Plaintiffs allege that Defendants moved the heating system, but as Defendants indicated in response to discovery demands before Mr. Heller became incapacitated, it never happened. Defendants explained in their April 2014 response (more than six months before Plaintiffs responded to any discovery), that “Defendants have no responsive documents relating to any decision to move portions of the systems into or within the basement of the Building, as Landlord never made such a decision or took such an action.” Defendants’ Response to Plaintiffs’ First Demand for Discovery and Inspection, Response to Demand 7, attached as Exhibit B. 18. During late 2013, Defendant Ben Heller, the sole member of 74‘ LLC, determined to put some of his affairs in order. To that end, he decided to explore the possibility of selling the property located at 42A East 74" Street. 19. On November 11, 2013, Mr. Heller, acting on behalf of 74 LLC, sent correspondence to Plaintiffs requesting payment of additional rent due attributable to water and real estate taxes, and advising that he wished to sell the building and was giving Plaintiffs the notice required under the Lease: Separately, note that the lease requires me to give you notice if I wish to sell the building. This is to advise that I have just given the Edward L. Cave division of Brown, Harris Stevens the listing to sell the building at a sale price of $17,600,000.00 Should you desire to buy the building and have the financial capacity to do so, please advise. Glasberg Aff. Exhibit D, page two (upside down). In their factual discussion, Plaintiffs entirely ignore this letter and attempt to suggest that subsequent correspondence on this issue was retaliation for Plaintiffs’ complaints. See Glasberg Aff. at paragraph 12-20. Defendants’ alleged bad faith, as alleged and placed in issue by Plaintiffs, is a material factual issue in dispute. 20. On November 18, 2013, Plaintiffs responded with a letter complaining about a heating issue and stating both that “we are more than happy to pay the tax balance due,” and that they would “withhold the tax payment due.” Glasberg Aff Exhibit B. 21. On November 27, 2013, Defendants served a second, more formal “Notice of First Opportunity to Acquire 42 East 74" Street (“Offer Notice”)” and suggested a meeting to resolve the disputes between Plaintiffs and Defendants. 22. Upon information from Mr. Heller prior to his illness, and belief, after numerous telephone calls and visits, a meeting was scheduled. At the appointed time, Mr. Heller travelled from Connecticut to New York specifically to meet with Plaintiffs, and was told only upon arrival that the meeting had been cancelled, without further explanation. To this date, Plaintiffs have provided no explanation for their cancellation of the meeting, nor have they made any effort to reschedule. 23. Plaintiffs initially took the position that the November 11 and 27, 2013 notices were insufficient to satisfy Article 61(B) of the Lease. See Verified Complaint (without exhibits) 4146-52, 76-79, attached as Exhibit C. However, they have since reversed position and now agree that the November notices were proper. See Amended Complaint {ff 54-57, attached to Glasberg Aff as Exhibit A. In any event, Plaintiffs did not exercise their opportunity to purchase the building conferred by the November notices as provided in Article 61(B) of the Lease. 24. On January 22, 2014, after Plaintiffs still had not paid the outstanding additional rent due for water charges and real estate taxes, Defendants served through counsel a Notice and statement of outstanding water charges and real estate taxes. See Affidavit of Thomas W. Smith. That notice was followed up with a Notice to Tenant of Termination of Lease dated February 4, 2014. Although additional rent attributable to water and real estate taxes was outstanding at this time, the figures in the notices had been calculated by counsel using information from an incorrect address. Plaintiffs claim that these notices were “entirely pretextual and in bad faith”; however, that allegation is starkly disputed. As Plaintiffs are well aware, the figures in the notices were the result of an error on the part of counsel. Plaintiffs were advised of the error and that the notices were being withdrawn by telephone in February 2014, prior to the date Plaintiffs filed the Verified Complaint in this action, and again in correspondence dated March 4, 2014, when the notices were formally withdrawn, see Letter from Thomas Smith to Eric Sherman, dated March 4, 2014. Notwithstanding the facts, Plaintiffs continue to allege bad faith on the part of Defendants. 25. Plaintiffs did in fact owe additional rent attributable to water and real estate taxes at the time. There is also no dispute that the amounts stated in the January 22, 2014 and February 4, 2014 notices were incorrect. The reason for the notices, however, which Plaintiffs have elected to put in issue, is sharply disputed. Plaintiffs claim it was a bad faith “scheme” to evict, while Defendants have repeatedly explained that it was an error by counsel. Glasberg Aff at 22-23. And, contrary to Plaintiffs’ position, there is nothing remarkable in a landlord planning to evict tenants who have not paid additional rent due under the Lease, particularly where it wishes to sell the building. 26. Contrary to the factual assertion in the Glasberg Affidavit, Mr. Smith advised Plaintiffs that Defendants were withdrawing the January 22, 2014 and February 4, 2014 notices before the Plaintiffs filed their Complaint. See Smith Affidavit. This fact, which Plaintiffs have placed in issue, is in dispute. Glasberg Aff. at 27. 27. The January and February notices were formally withdrawn on March 5, 2014, after Plaintiffs filed their Complaint taking the position that the notices were still in effect despite counsel’s advice that they were being withdrawn. See Exhibit C. With that correspondence, Defendants provided a statement of additional rent due totaling $12,169.82, and served a “Notice of Termination of Lease pursuant to Lease Article 61(C).” 28. Defendants explained that the March 5, 2014 notice was served without prejudice to Defendants’ rights under the Lease: Enclosed is a six-month termination of the Lease which will be delivered to Tenant to preserve Owner’s options. This letter is neither a waiver or admission of any kind on the part of Owner, nor of any rights Owner may have with regard to the Lease, including any right to enforce any obligation of Tenant under the Lease. See Correspondence dated March 5, 2014, attached as Exhibit D. 29. When the March 5, 2014 notice was served, Defendants had a purchaser for the property who was prepared to close in October 2014. However, shortly thereafter, when that purchaser learned of the Plaintiffs’ position that the November notices were insufficient under the lease, the deal fell through. Accordingly, on March 26, 2014, Defendants retracted the notice and withdrew the property from the market. 30. Article 61(C) of the Lease provides for termination effective six months following notice to the tenant, and says nothing about whether such notice may be revoked prior to the effective termination date. It also provides that the termination is not effective and no payment is due until “the date that Tenant shall vacate the Premises.” Lease Article 61(C). To date, Plaintiffs have not vacated the premises. 31. Accordingly, when the deal fell through, and Tenants having waived their right to purchase, Defendants withdrew the building from the market as permitted by Article 61. Plaintiffs claim that this withdrawal, like all of the Defendants’ other actions, was done in bad faith. In fact, however, it was the direct result of the Plaintiffs filing the present action and frustrating the sale. The facts surrounding the withdrawal are material issues in dispute. 32. Notably, Plaintiffs did not include their initial Complaint as an attachment to their motion; it is therefore annexed hereto. See Exhibit C. In their initial Complaint, Plaintiffs sought a declaration that the initial notices that the Defendants wished to sell the building, delivered in November 2013, were improper. In the Amended Complaint, they reverse course, accept the notices, and instead seek to enforce the subsequently withdrawn March 5, 2014 notice. See Glasberg Aff. Exhibit A. 33. It is disputed whether Defendants did anything in reliance on the March 5, 2014 notice before March 26, 2014. Certainly nothing in Plaintiffs’ production supports the allegation in the Glasberg Affidavit that “Tenants relied on the Notice of Termination and acted upon it” during that period. Glasberg Aff. at para. 30. Like the others, this material dispute of fact precludes the Court from granting the present motion for summary judgment. ARGUMENT The Motion Must be Denied Because Material Issues of Fact Are In Dispute 34. “Since summary judgment is the procedural equivalent ofa trial, if there is any doubt as to the existence of a triable issue or where the material issue of fact is ‘arguable,’ summary judgment must be denied.” Museums at Stony Brook v Vil. of Patchogue Fire Dept., 146 AD2d 572, 573 [2d Dept 1989]. Here, Plaintiffs motion, particularly the Glasberg Affidavit, raises numerous disputed issues of fact that preclude granting its motion. 35. As discussed in detail in the fact section above, Plaintiffs have placed in issue the history between the parties to the Lease, Defendants’ reasons for serving various notices including the ones at issue in this action, Defendants’ good faith, an alleged change in the heating equipment in the basement of the building, and whether Plaintiffs relied on the withdrawn March 5, 2014 notice to their detriment before it was withdrawn. As discussed in detail above in the discussion of material facts in dispute, these are all material disputed issues of fact. And they all preclude a grant of summary judgment. 36. An ambiguity in a commercial lease will preclude summary judgment in a declaratory judgment action based on the ambiguous provision. Brooklyn Pennsylvania CVS, Inc. v. Starrett City Associates, 294 A.D.2d 108, 108-09 (1* Dept 2002) (“On this record, the motion court also correctly found an ambiguity, and therefore an issue of fact, as to the date from which the escalation clause was to be measured, since, among other reasons, “commencement date” as set forth in the 1986 lease was not a defined term to be necessarily carried over into subsequent agreements for all purposes, but simply a statement as to the starting date of the 1986 lease term.”). An ambiguity exists where the terms of a contract could suggest “more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.” Lightfoot v. Union Carbide Corp., 110 F.3d 898, 906 (2d Cir.1997). 37. Defendants do not read the Lease as ambiguous and understand that Notices of Termination may be withdrawn prior to the termination date absent detrimental reliance, since the Lease says nothing about notices being irrevocable. This understanding is consistent with the prior practice of the parties. Plaintiffs however, at least for purposes of the present motion, take a different view, assigning a very specific interpretation to an absence of controlling language. Where a contract is susceptible to multiple divergent interpretations, it is ambiguous as a matter of law, creating a disputed issue of fact that precludes summary judgment or a declaratory judgment. Brooklyn Pennsylvania CVS, Inc. v. Starrett City Associates, 294 A.D.2d 108, 108- 09, 742 N.Y.S.2d 8, 10 (1 Dept. 2002). 38. Accordingly, summary judgment must be denied. The Motion Must Be Denied Because Plaintiffs Cannot Demonstrate Entitlement to Judgment as a Matter of Law 39. It is uncontroversial that Notices of Termination generally may be withdrawn even after an action has been filed. See Eve & Mike Pharmacy, Inc. v. Greenwich Pooh. LLC, 107 A.D.3d 505, 505 (1* Dept 2013) (withdrawal of notice of termination mooted declaratory judgment action). In fact, it has happened without objection in this case. See Exhibit D. 40. Plaintiffs’ position to the contrary is unsupported by the Lease. Al. Plaintiffs accepted withdrawal of a prior Notice of Termination that had been issued pursuant to Article 42 of the Lease. Like Article 61, Article 42 neither provides for revocable or irrevocable notices; it is entirely silent on the issue. Nonetheless, Plaintiffs accepted that the Notice issued under Article 42 could be withdrawn. But its argument in the present motion would prohibit withdrawal of that notice as well. 42. Plaintiffs also argue that the March 5, 2014 notice was irrevocable because Article 61(C) does not specifically permit Landlord to withdraw the property from the market, where Article 61(B) does. But Plaintiffs’ argument is comparing apples to oranges, and for the doctrine of “expression unius” to apply, the provisions must be similar. Here, they are not. 43. Article 61(B) of the Lease gives Tenant a first opportunity to purchase the property if the Landlord wishes to sell. The Landlord issues an Offer Notice, and the Tenant may exercise its option by sending Landlord a 10% down payment and giving written notice to Landlord within 30 days. The Tenant and Landlord must then sign a contract within 15 days and close in 60. If Tenant fully complies with the provisions of this Section, Landlord would be required to sell to Tenant. However, the provision clarifies that if Tenant waives its rights by failing to respond to the notice, sign a contract, or timely close, the Landlord is free to withdraw the property from the market or sell to someone else: TIME SHALL BE OF THE ESSENCE with respect to Tenant’s election to purchase the building and a failure by Tenant to deliver written notice of its election to purchase the building and the Downpayment within thirty (30) days after receipt of the Offer Notice or to purchase the building within sixty (60) days of Tenant’s election, as the case may be, shall be deemed, in either case, an irrevocable waiver to Tenant’s rights under this Section and the same shall be of no further force and effect, it being expressly understood that the foregoing option to purchase the Building shall be a “one-time” option and that if Tenant shall waive its rights as aforesaid, Owner shall be free to withdraw the building from the market or to sell the building on any terms Owner sees fit. 44. Lease Section 61(C), however, deals with the entirely different issue of how Landlord may terminate the lease if it wishes to sell for a third party. It contains nothing that would bind the Landlord to sell to that third party, so there is no need for language like that in Article 61(C) explaining Landlord’s right not to sell to that party. It would make no sense for Section 61(C) to contain language permitting the Landlord to withdraw the property from the market, since Section 61(C) contains nothing that would limit that right. 45. Quite simply, the provisions are not similar, and the doctrine of “expressio unius est exclusion alterius” is therefore misplaced. Section 61 (C) is the orange to Section 61(B)’s apple. 46. Nothing in the Lease limits the Defendants’ right to withdraw a Notice of Termination before its effective date. Nor do Plaintiffs cite a single case or statute that would require that result. Their motion for summary judgment must therefore be denied. The Motion Must be Denied Because Discovery is Outstanding from Plaintiffs 47. Rule 3212(f) of the Civil Practice Law and Rules provides that a court may deny a motion for summary judgment, “[s]hould it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated.” “This is especially so when the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion” Jones v Am. Commerce Ins. Co., 92 AD3d 844, 845 [2d Dept 2012] (quoting James v. Aircraft Serv. Intl. Group, 84 A.D.3d 1026,1027 [2d Dept 2011] and Baron_v. Incorporated Vil. of Freeport, 143 A.D.2d 792, 793 [2d Dept. 1988]. The Second Department routinely requires that motions for summary judgment be denied where the opposing party has not had a meaningful opportunity to conduct discovery. See Jones v Am. Commerce Ins. Co., 92 AD3d at 845 (reversing grant of summary judgment); James v. Aircraft Serv. Intl. Group, 84 A.D.3d at 1027 (affirming denial of summary judgment). 48. Plaintiffs filed the present motion before Defendants had a meaningful opportunity to conduct discovery, and Plaintiffs have deliberately withheld key categories of information and inexplicably redacted much of what they did produce. 49. Despite the fact that Defendants served document demands in June 2014, and served responses to Plaintiffs’ discovery demands in April 2014, Plaintiffs delayed their response until October 2014, less than two weeks before filing the present motion on an expedited schedule by Order to Show Cause. 50. This late production is woefully incomplete. The delayed production, coupled with the expedited schedule on this motion, have deprived Defendants of a meaningful opportunity to conduct discovery. 51. Although Plaintiffs failed to correlate their document production to Defendants’ requests as required by CPLR §3122(a), a review suggests that, other than the lease and certain records relating to payment of rent, the documents are responsive primarily to Demands 31 through 34, targeting Plaintiffs’ claimed detrimental reliance on the notice. These documents are redacted without explanation or privilege log. See Plaintiffs’ Response to Defendants’ First Demand for Discovery and Inspection, attached as Exhibit E; Excerpts from Production, attached as Exhibit F. These documents do demonstrate a disputed issue of material fact as to whether Plaintiffs relied to their detriment on the March 5, 2014 notice before it was withdrawn. In his affidavit, Dr. Glasberg claims that Plaintiffs did rely to their detriment on the March 5, 2014 notice. But the discovery demonstrates that they did nothing until weeks after the notice was withdrawn. See Exhibit F. The entire reliance claim appears to be based on Defendant Glasberg’s receipt of a single email from a broker regarding available medical office space. See Motion Exhibit J. That a broker sent an email does not demonstrate that Plaintiffs did anything in reliance on the notice before it was revoked, and the most they did afterwards was exchange emails with brokers. If the Plaintiffs did anything else, it was excluded from or redacted in their document production. 52. Plaintiffs indicated that numerous documents “would be provided,” but they have not yet done so. These include documents “upon which you base the allegation in paragraph 63 that Landlord may not withdraw a Notice of Termination of the Lease.” Request and Response 29. Additionally, they include documents relevant to many of the issues placed in issue by the Glasberg Affidavit, including the temperature issue (Requests and Responses 3, 6, 7, 9, 14, 21, 22, 24), the claim that Defendants moved the heating system in 2011 (Request and Response 23), the condition of the premises, (Request and Response 5), notice to Defendants of the alleged heating or ventilation issues (Requests and Responses 25, 30), and the alleged harm to Plaintiffs’ practice or patients from the heating issue (Request and Response 11, 12, 13, 14, 16, 17, 26 ). 53. Plaintiffs entirely refused to provide documents responsive to several of Plaintiffs key requests relating directly to the allegations in the Complaint and at issue in this motion. See Exhibit E. These include documents relating to the claim that Plaintiffs operate one of the tri-state’s most successful plastic surgery practices, specifically alleged in the Complaint and in the Glasberg Affidavit (Request and Response 10), documents relating to the Plaintiffs’ claim that the alleged temperature issue harmed their practice or drove patients away (Request and Response 27, 28) and documents relevant to Plaintiffs’ financial condition, directly relevant to their ability to exercise their right to purchase the property pursuant to the November 2013 notices. The ability to purchase is relevant because Defendants believe that Plaintiffs never had the ability to purchase the property, and their intention from their first objection to the November notices was simply to thwart and frustrate Defendants’ right to sell under the Lease. (Request and Response 35, 36, 37, 38). 54. Plaintiffs’ dilatory conduct with respect to discovery, and their incomplete production, precludes granting their motion for summary judgment. This is particularly so where Plaintiffs have used Defendants’ complete discovery in connection with their motion, but seek to avoid having to provide their own responses. 55. The present expedited motion for summary judgment is a clear tactical effort to avoid discovery and take advantage of Mr. Heller’s stroke and resulting incapacity to gain advantage under a commercial lease. It is clearly not Plaintiffs who have suffered “victimization” here. CONCLUSION 56. Because the present motion is prematurely made before Defendants have had a meaningful opportunity to conduct discovery, because the Plaintiffs have failed to demonstrate prima facie entitlement to judgment as a matter of law, and because there are material facts in dispute, Defendants respectfully submit that the present motion must be denied. Accordingly, Defendants respectfully request an order denying the present motion and setting forth deadlines for the completion of discovery and the taking of Plaintiffs’ depositions. Dated: November 3, 2014 Yonkers, New York SMITH, BUSS & JAC S, LLP By: teow: oma’ W, Smith ‘eys for Defendants 733 Yonkers Ave., Suite 200 Yonkers, New York 10704 (914) 476-0600