Preview
FILED: NEW YORK COUNTY CLERK 01/29/2014 INDEX NO. 150830/2014
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/29/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
BRIXMOR SUNSHINE SQUARE LLC, Index No.
Plaintiff,
SUMMONS
- against -
MILCREC AMUSEMENTS LLC
d/b/a MONSTER MINI GOLF, WILLIAM
MILLER, PATMCIA LYNN MILLER,
ARMANDO CRECCO and
KAREN LYNN CRECCO,
Defendants.
TO THE ABOVE-NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve
a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of
appearance, on the attorneys for plaintiff within 20 days after the service of this summons,
exclusive of the day of service (or within 30 days after the service is complete if this summons is
not personally delivered to you within the State of New York); and in case of your failure to
appear or answer, judgment will be taken against you by default for the relief demanded in the
complaint.
Plaintiff designates New York County as the venue for this action because its principal
office is located in such county.
Dated: New York, New York
January 27, 2014
INGRAM YUZEK GAINEN CARROLL
& BERTOLOTTI, LLP
By:
Michael D. poiz
Attorneys for Plaintiff
250 Park Avenue
New York, New York 10177
(212) 907-9600
455957_1/03667-0002
Defendants' Addresses:
MILCREC AMUSEMENTS LLC
c/o New York State Department of State
99 Washington Avenue, 6 th Floor
Albany, New York 12231-0001
WILLIAM MILLER
240 Maple Street
Islip, New York 11751
PATRICIA LYNN MILLER
240 Maple Street
Islip, New York 11751
ARMANDO CRECCO
7 Sherbrooke Drive
Smithtown, New York 11787
KAREN LYNN CRECCO
7 Sherbrooke Drive
Smithtown, New York 11787
455957 1/03667-0002
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
BRIXMOR SUNSHINE SQUARE LLC, Index No.
Plaintiff,
COMPLAINT
- against -
MILCREC AMUSEMENTS LLC
d/b/a MONSTER MINI GOLF, WILLIAM
MILLER, PATRICIA LYNN MILLER,
ARMANDO CRECCO and
KAREN LYNN CRECCO,
Defendants.
Plaintiff Brixmor Sunshine Square LLC ("Landlord"), by its attorneys, Ingram Yuzek
Gainen Carroll & Bertolotti, LLP, as and for its complaint against defendants Milcrec
Amusements LLC d/b/a Monster Mini Golf ("Milcrec"), and William Miller, Patricia Lynn
Miller, Armando Crecco and Karen Lynn Crecco (collectively, "Guarantors"), alleges as follows:
PARTIES AND JURISDICTION
1. Landlord is a Delaware limited liability company authorized to conduct business in
New York State.
2. Landlord is the owner of the leasehold estate covering the building located at the
Sunshine Square Shopping Center, 700 Patchogue Yaphank Road, Medford, New York 11763 (the
"Bui lding").
3. Upon information and belief, Milcrec is a New York corporation with an address
located at 240 Maple Street, Islip, New York 11751.
4. Upon information and belief, defendant William Miller is an individual with a last
known address of 240 Maple Street, Islip, New York 11751.
455962_1/03667-0002
5. Upon information and belief, defendant Patricia Lynn Miller is an individual with a
last known address of 240 Maple Street, Islip, New York 11751.
6. Upon information and belief, defendant Armando Crecco is an individual with a last
known address of 7 Sherbrooke Drive, Smithtown, New York 11787.
7. Upon information and belief, defendant Karen Lynn Crecco is an individual with a
last known address of 7 Sherbrooke Drive, Smithtown, New York 11787.
FACTS
8. Milcrec is the tenant of Store No. 31 in the Building (the "Premises") pursuant to a
written lease agreement, dated February 24, 2010, by and between Milcrec, as tenant, and
Landlord's predecessor, HK New Plan Marwood Sunshine Cheyenne LLC, as landlord, for a term
of ten years beginning on or about April 1, 2010, and ending on or about March 31, 2020 (the
"Lease"). A copy of the Lease is annexed as Exhibit A.
9. Pursuant to the Lease, Milcrec agreed to pay Landlord a monthly base rent and
additional rent in advance on the first day of each month.
10. Pursuant to a Stipulation of Settlement (the "Stipulation") entered into between
Milcrec, as Respondent, and Landlord, as Petitioner, in the summary nonpayment proceeding
entitled Brixmor Sunshine Square LLC v. Milerec Amusements LLC cl/b/a Monster Mini Golf L&T
Index No. 02262/13 (the "District Court Case"), the parties terminated the Lease as of December 4,
2013, but agreed that Milcrec could continue to occupy the Premises up to and including January 7,
2014 on condition that Milcrec timely paid $8,500 by December 22, 2013. A copy of the
Stipulation is annexed as Exhibit B.
11. Milcrec vacated the Premises on or about January 7, 2014.
12. The Stipulation further provided, however, that Landlord did not release Milcrec
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from its continuing rental liability under the Lease. See Exhibit B, 'I 8.
13. On February 24, 2009, Guarantors executed a Lease Guaranty (the "Guaranty"), a
copy of which is annexed as Exhibit C, whereby Guarantors guaranteed to Landlord's predecessor,
HK New Plan Marwood Sunshine Cheyenne LLC, and to Landlord's heirs, executors,
administrators, successors and assigns:
[T]he full prompt payment of rent, including, but not limited to, and
any and all other sums and charges payable by Tenant . . . under the
Lease, and hereby further jointly and severally guarantee the full and
timely performance and observance of all the covenants, terms,
conditions and agreements therein provided to be performed and
observed by Tenant under the Lease; and Guarantor hereby
covenants and agrees to and with Landlord that if default shall at any
time be made by Tenant in the payment of the Rent and/or any other
such sums and charges payable by Tenant under the Lease . . .
Guarantor shall and will forthwith pay such rent and other such sums
and charges to Landlord, and any arrears thereof, and shall, and will,
forthwith pay to Landlord all damages that may arise in consequence
of any default by Tenant under the Lease, including, without
limitation, all reasonable attorneys' fees and disbursements incurred
by Landlord or cause by any such default and/or by the enforcement
of this Guaranty.
14. During the term of the Lease, Mile ec has failed to pay any rent and additional
rent as follows:
Item Due Date Amount Due
Annual Minimum Rent 1/1/2014 8,349.83
CAM (Escrow / Deposit) 1/1/2014 2,206.57
Real Estate Tax (Escrow) 1/1/2014 2,403.74
Annual Minimum Rent 12/1/2013 7,590.75
CAM (Escrow / Deposit) 12/1/2013 2,101.50
Real Estate Tax (Escrow) 12/1/2013 2,403.74
Annual Minimum Rent 11/1/2013 7,590.75
CAM (Escrow / Deposit) 11/1/2013 2,101.50
Real Estate Tax (Escrow) 11/1/2013 2,403.74
Annual Minimum Rent 10/1/2013 3,595.99
RRET 1/1/13-12/31/13 12/30/2013 1,513.53
RRET 1/1/13-12/31/13 12/30/2013 22.66
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455962 1/03667-0002
RCAM 01/01/12-
12/31/12 12/11/2013 2,456.66
RCAM 01/01/12-
12/31/12 12/11/2013 2,608.01
RCAM 01/01/12-
12/31/12 12/11/2013 2,322.98
RCAM 01/01/12-
12/31/12 12/11/2013 1,054.68
Annual Minimum Rent 9/1/2013 7,590.75
CAM (Escrow / Deposit) 9/1/2013 2,101.50
Real Estate Tax (Escrow) 9/1/2013 2,403.74
Annual Minimum Rent 8/1/2013 7,590.75
CAM (Escrow / Deposit) 8/1/2013 2,101.50
Real Estate Tax (Escrow) 8/1/2013 2,403.74
RRET 1/01/2012-
12/31/2012 10/24/2013 6,978.84
RRET 1/01/2012-
12/31/2012 7/26/2013 33.28
Annual Minimum Rent 7/1/2013 7,590.75
CAM (Escrow / Deposit) 7/1/2013 2,101.50
Real Estate Tax (Escrow) 7/1/2013 2,403.74
Annual Minimum Rent 6/1/2013 7,590.75
CAM (Escrow / Deposit) 6/1/2013 2,101.50
Real Estate Tax (Escrow) 6/1/2013 2,403.74
Annual Minimum Rent 5/1/2013 7,590.75
CAM (Escrow / Deposit) 5/1/2013 2,101.50
Real Estate Tax (Escrow) 5/1/2013 2,403.74
Annual Minimum Rent 4/1/2013 7.590.75
CAM (Escrow / Deposit) 4/1/2013 2,101.50
Real Estate Tax (Escrow) 4/1/2013 2,403.74
Annual Minimum Rent 3/1/2013 7,590.75
CAM (Escrow / Deposit) 3/1/2013 2,101.50
Real Estate Tax (Escrow) 3/1/2013 2,403.74
Annual Minimum Rent 2/1/2013 7,590.75
CAM (Escrow / Deposit) 2/1/2013 2,101.50
Real Estate Tax (Escrow) 2/1/2013 582.38
TOTAL: $ 152,685.31
AS AND FOR A FIRST CAUSE OF ACTION
15. Landlord repeats and realleges the allegations set forth in paragraphs 1 through 14 as
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455962_1/03667-0002
if fully set forth herein at length.
16. Milcrec has defaulted under the Lease by failing to pay base rent and additional rent
totaling $152,685.31 for the period from February 1, 2013 through January 1, 2014. The arrears of
Milcrec shall increase after February 1, 2014.
17. As a result of the foregoing, Milcrec is liable to Landlord in the sum of at least
$152,685.31 representing base rent and additional rent due for the period from February 1, 2013
through January 1, 2014, plus additional amounts to be determined upon the trial of this action as
and for base rent and additional rent becoming due and owing on and after February 1, 2014.
AS AND FOR A SECOND CAUSE OF ACTION
18. Landlord repeats and realleges the allegations set forth in paragraphs 1 through 17 as
if fully set forth herein at length.
19. As a result of the Guaranty, Guarantors are liable, jointly and severally, to Landlord
in the sum of $152,685.31, no part of which has been paid by Milcrec or by Guarantors.
AS AND FOR AN THIRD CAUSE OF ACTION
20. Landlord repeats and realleges the allegations set forth in paragraphs 1 through 19 as
if fully set forth herein at length.
21. Pursuant to article 21.11 of the Lease and to the terms and conditions of the
Guaranty, Defendants are liable, jointly and severally, for Landlord's expenses, including but not
limited to reasonable attorneys' fees, incurred in comection with the default of Milcrec in the
observance or performance of any term or covenant of the Lease, including but not limited to any
default of the covenant to pay rent thereunder.
22. As a result of Milcre's defaults under the terms of the Lease, Defendants are liable,
jointly and severally under the Lease and Guaranty, for Landlord's expenses and attorneys' fees,
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455962_1/03667-0002
including but not limited to expenses and fees incurred in prosecuting this action, in an amount to be
determined at trial.
WHEREFORE, Landlord demands judgment, as follows, against:
(a) Milcrec, on the first cause of action, in the sum of at least $152,685.31, plus
additional amounts to be determined at trial;
(b) Guarantors, jointly and severally, on the second cause of action, in the sum
of $152,685.31;
(c) Defendants, on the third cause of action, jointly and severally, in an amount
to be determined at trial;
(d) Defendants, jointly and severally, for interest at the statutory rate on all
amounts due, plus the costs and disbursements of the action; and
(e) Defendants, jointly and severally, for such other and further relief as this
Court may deem just and proper.
Dated: New York, New York
January 27, 2014
INGRAM YUZEK GAINEN CARROLL
& BERTOLOTTI, LLP
By:
Michael D. Ca
Attorneys for Plaintiff
250 Park Avenue
New York, New York 10177
(212) 907-9600
6
455962_1/03667-0002
Preview
FILED: NEW YORK COUNTY CLERK 01/29/2014 INDEX NO. 150830/2014 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/29/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK BRIXMOR SUNSHINE SQUARE LLC, Index No. Plaintiff, SUMMONS - against - MILCREC AMUSEMENTS LLC d/b/a MONSTER MINI GOLF, WILLIAM MILLER, PATMCIA LYNN MILLER, ARMANDO CRECCO and KAREN LYNN CRECCO, Defendants. TO THE ABOVE-NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the attorneys for plaintiff within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Plaintiff designates New York County as the venue for this action because its principal office is located in such county. Dated: New York, New York January 27, 2014 INGRAM YUZEK GAINEN CARROLL & BERTOLOTTI, LLP By: Michael D. poiz Attorneys for Plaintiff 250 Park Avenue New York, New York 10177 (212) 907-9600 455957_1/03667-0002 Defendants' Addresses: MILCREC AMUSEMENTS LLC c/o New York State Department of State 99 Washington Avenue, 6 th Floor Albany, New York 12231-0001 WILLIAM MILLER 240 Maple Street Islip, New York 11751 PATRICIA LYNN MILLER 240 Maple Street Islip, New York 11751 ARMANDO CRECCO 7 Sherbrooke Drive Smithtown, New York 11787 KAREN LYNN CRECCO 7 Sherbrooke Drive Smithtown, New York 11787 455957 1/03667-0002 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK BRIXMOR SUNSHINE SQUARE LLC, Index No. Plaintiff, COMPLAINT - against - MILCREC AMUSEMENTS LLC d/b/a MONSTER MINI GOLF, WILLIAM MILLER, PATRICIA LYNN MILLER, ARMANDO CRECCO and KAREN LYNN CRECCO, Defendants. Plaintiff Brixmor Sunshine Square LLC ("Landlord"), by its attorneys, Ingram Yuzek Gainen Carroll & Bertolotti, LLP, as and for its complaint against defendants Milcrec Amusements LLC d/b/a Monster Mini Golf ("Milcrec"), and William Miller, Patricia Lynn Miller, Armando Crecco and Karen Lynn Crecco (collectively, "Guarantors"), alleges as follows: PARTIES AND JURISDICTION 1. Landlord is a Delaware limited liability company authorized to conduct business in New York State. 2. Landlord is the owner of the leasehold estate covering the building located at the Sunshine Square Shopping Center, 700 Patchogue Yaphank Road, Medford, New York 11763 (the "Bui lding"). 3. Upon information and belief, Milcrec is a New York corporation with an address located at 240 Maple Street, Islip, New York 11751. 4. Upon information and belief, defendant William Miller is an individual with a last known address of 240 Maple Street, Islip, New York 11751. 455962_1/03667-0002 5. Upon information and belief, defendant Patricia Lynn Miller is an individual with a last known address of 240 Maple Street, Islip, New York 11751. 6. Upon information and belief, defendant Armando Crecco is an individual with a last known address of 7 Sherbrooke Drive, Smithtown, New York 11787. 7. Upon information and belief, defendant Karen Lynn Crecco is an individual with a last known address of 7 Sherbrooke Drive, Smithtown, New York 11787. FACTS 8. Milcrec is the tenant of Store No. 31 in the Building (the "Premises") pursuant to a written lease agreement, dated February 24, 2010, by and between Milcrec, as tenant, and Landlord's predecessor, HK New Plan Marwood Sunshine Cheyenne LLC, as landlord, for a term of ten years beginning on or about April 1, 2010, and ending on or about March 31, 2020 (the "Lease"). A copy of the Lease is annexed as Exhibit A. 9. Pursuant to the Lease, Milcrec agreed to pay Landlord a monthly base rent and additional rent in advance on the first day of each month. 10. Pursuant to a Stipulation of Settlement (the "Stipulation") entered into between Milcrec, as Respondent, and Landlord, as Petitioner, in the summary nonpayment proceeding entitled Brixmor Sunshine Square LLC v. Milerec Amusements LLC cl/b/a Monster Mini Golf L&T Index No. 02262/13 (the "District Court Case"), the parties terminated the Lease as of December 4, 2013, but agreed that Milcrec could continue to occupy the Premises up to and including January 7, 2014 on condition that Milcrec timely paid $8,500 by December 22, 2013. A copy of the Stipulation is annexed as Exhibit B. 11. Milcrec vacated the Premises on or about January 7, 2014. 12. The Stipulation further provided, however, that Landlord did not release Milcrec 2 455962_1/03667-0002 from its continuing rental liability under the Lease. See Exhibit B, 'I 8. 13. On February 24, 2009, Guarantors executed a Lease Guaranty (the "Guaranty"), a copy of which is annexed as Exhibit C, whereby Guarantors guaranteed to Landlord's predecessor, HK New Plan Marwood Sunshine Cheyenne LLC, and to Landlord's heirs, executors, administrators, successors and assigns: [T]he full prompt payment of rent, including, but not limited to, and any and all other sums and charges payable by Tenant . . . under the Lease, and hereby further jointly and severally guarantee the full and timely performance and observance of all the covenants, terms, conditions and agreements therein provided to be performed and observed by Tenant under the Lease; and Guarantor hereby covenants and agrees to and with Landlord that if default shall at any time be made by Tenant in the payment of the Rent and/or any other such sums and charges payable by Tenant under the Lease . . . Guarantor shall and will forthwith pay such rent and other such sums and charges to Landlord, and any arrears thereof, and shall, and will, forthwith pay to Landlord all damages that may arise in consequence of any default by Tenant under the Lease, including, without limitation, all reasonable attorneys' fees and disbursements incurred by Landlord or cause by any such default and/or by the enforcement of this Guaranty. 14. During the term of the Lease, Mile ec has failed to pay any rent and additional rent as follows: Item Due Date Amount Due Annual Minimum Rent 1/1/2014 8,349.83 CAM (Escrow / Deposit) 1/1/2014 2,206.57 Real Estate Tax (Escrow) 1/1/2014 2,403.74 Annual Minimum Rent 12/1/2013 7,590.75 CAM (Escrow / Deposit) 12/1/2013 2,101.50 Real Estate Tax (Escrow) 12/1/2013 2,403.74 Annual Minimum Rent 11/1/2013 7,590.75 CAM (Escrow / Deposit) 11/1/2013 2,101.50 Real Estate Tax (Escrow) 11/1/2013 2,403.74 Annual Minimum Rent 10/1/2013 3,595.99 RRET 1/1/13-12/31/13 12/30/2013 1,513.53 RRET 1/1/13-12/31/13 12/30/2013 22.66 3 455962 1/03667-0002 RCAM 01/01/12- 12/31/12 12/11/2013 2,456.66 RCAM 01/01/12- 12/31/12 12/11/2013 2,608.01 RCAM 01/01/12- 12/31/12 12/11/2013 2,322.98 RCAM 01/01/12- 12/31/12 12/11/2013 1,054.68 Annual Minimum Rent 9/1/2013 7,590.75 CAM (Escrow / Deposit) 9/1/2013 2,101.50 Real Estate Tax (Escrow) 9/1/2013 2,403.74 Annual Minimum Rent 8/1/2013 7,590.75 CAM (Escrow / Deposit) 8/1/2013 2,101.50 Real Estate Tax (Escrow) 8/1/2013 2,403.74 RRET 1/01/2012- 12/31/2012 10/24/2013 6,978.84 RRET 1/01/2012- 12/31/2012 7/26/2013 33.28 Annual Minimum Rent 7/1/2013 7,590.75 CAM (Escrow / Deposit) 7/1/2013 2,101.50 Real Estate Tax (Escrow) 7/1/2013 2,403.74 Annual Minimum Rent 6/1/2013 7,590.75 CAM (Escrow / Deposit) 6/1/2013 2,101.50 Real Estate Tax (Escrow) 6/1/2013 2,403.74 Annual Minimum Rent 5/1/2013 7,590.75 CAM (Escrow / Deposit) 5/1/2013 2,101.50 Real Estate Tax (Escrow) 5/1/2013 2,403.74 Annual Minimum Rent 4/1/2013 7.590.75 CAM (Escrow / Deposit) 4/1/2013 2,101.50 Real Estate Tax (Escrow) 4/1/2013 2,403.74 Annual Minimum Rent 3/1/2013 7,590.75 CAM (Escrow / Deposit) 3/1/2013 2,101.50 Real Estate Tax (Escrow) 3/1/2013 2,403.74 Annual Minimum Rent 2/1/2013 7,590.75 CAM (Escrow / Deposit) 2/1/2013 2,101.50 Real Estate Tax (Escrow) 2/1/2013 582.38 TOTAL: $ 152,685.31 AS AND FOR A FIRST CAUSE OF ACTION 15. Landlord repeats and realleges the allegations set forth in paragraphs 1 through 14 as 4 455962_1/03667-0002 if fully set forth herein at length. 16. Milcrec has defaulted under the Lease by failing to pay base rent and additional rent totaling $152,685.31 for the period from February 1, 2013 through January 1, 2014. The arrears of Milcrec shall increase after February 1, 2014. 17. As a result of the foregoing, Milcrec is liable to Landlord in the sum of at least $152,685.31 representing base rent and additional rent due for the period from February 1, 2013 through January 1, 2014, plus additional amounts to be determined upon the trial of this action as and for base rent and additional rent becoming due and owing on and after February 1, 2014. AS AND FOR A SECOND CAUSE OF ACTION 18. Landlord repeats and realleges the allegations set forth in paragraphs 1 through 17 as if fully set forth herein at length. 19. As a result of the Guaranty, Guarantors are liable, jointly and severally, to Landlord in the sum of $152,685.31, no part of which has been paid by Milcrec or by Guarantors. AS AND FOR AN THIRD CAUSE OF ACTION 20. Landlord repeats and realleges the allegations set forth in paragraphs 1 through 19 as if fully set forth herein at length. 21. Pursuant to article 21.11 of the Lease and to the terms and conditions of the Guaranty, Defendants are liable, jointly and severally, for Landlord's expenses, including but not limited to reasonable attorneys' fees, incurred in comection with the default of Milcrec in the observance or performance of any term or covenant of the Lease, including but not limited to any default of the covenant to pay rent thereunder. 22. As a result of Milcre's defaults under the terms of the Lease, Defendants are liable, jointly and severally under the Lease and Guaranty, for Landlord's expenses and attorneys' fees, 5 455962_1/03667-0002 including but not limited to expenses and fees incurred in prosecuting this action, in an amount to be determined at trial. WHEREFORE, Landlord demands judgment, as follows, against: (a) Milcrec, on the first cause of action, in the sum of at least $152,685.31, plus additional amounts to be determined at trial; (b) Guarantors, jointly and severally, on the second cause of action, in the sum of $152,685.31; (c) Defendants, on the third cause of action, jointly and severally, in an amount to be determined at trial; (d) Defendants, jointly and severally, for interest at the statutory rate on all amounts due, plus the costs and disbursements of the action; and (e) Defendants, jointly and severally, for such other and further relief as this Court may deem just and proper. Dated: New York, New York January 27, 2014 INGRAM YUZEK GAINEN CARROLL & BERTOLOTTI, LLP By: Michael D. Ca Attorneys for Plaintiff 250 Park Avenue New York, New York 10177 (212) 907-9600 6 455962_1/03667-0002