Preview
FILED: NASSAU COUNTY CLERK 12/27/2019 02:05 PM INDEX NO. 617063/2019
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
---------------------------- ------------------------------------X
DVK REALTY LLC,
Plaintiff, VERIFIED ANSWER
AND COUNTERCLAIM
-against-
Index No.: 617063/2019
CREMB REALTY INC.,
Defendant.
------------------------------------------- -------------------------X
Defendant, CREMB REALTY INC., by its attorney, LAW OFFICES OF JAMES F.
O'BRIEN, answering Plaintiff's Verified Complaint alleges, upon information and belief, as
follows:
1. Defendant, CREMB REALTY INC., denies each and every allegation contaiñêd in
"1," "2," "3," "4,"
the paragraphs of Plaintiff's Verified Complaint marked and designated and
and asserts that the pleadings coñtaiñcd therein are improper to the extent the paragraphs contain
conclusions of law.
AS TO THE PARTIES
2. Defendant denies knowledge or information sufficient to form a belief as to the
"5,"
allegations cóñtained in paragraph of Plaintiff's Verified Complaint.
"6,"
3. Defendant denies the allegations contained in paragraph of Plaintiff's Verified
Complaint.
AS TO RELEVANT FACTUAL BACKGROUND
4. Defendant denies knowledge or information sufficient to form a belief as to each
"7,"
and every allegation contained in paragraph and begs leave to refer all issues of interpretation
and legal conclusions to the Court.
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5. Defendant denies knowledge or information sufficient to form a belief as to each
"8"
and every allegation contained in paragraph of Plaintiff's Verified Complaint and begs leave
to refer all issues of interpretation and legal conclusions to the Court.
6. Defendant denies knowledge or information sufficient to form a belief as to each
"9,"
and every allegation contained in paragraph of Plaintiff's Verified Complaiñt, and begs leave
to refer all issues of interpretation and legal conclusions to the Court.
7. Defendant denies knowledge or information sufficient to form a belief as to each
"10,"
and every allegation contained in paragraph of Plaintiff's Verified Compkint, and begs leave
to refer all issues of interpretation and legal conclusions to the Court.
8. Defendant denies knowledge or information sufficient to form a belief as to each
1,"
and every allegation contained in paragraph "I of Plaintiff's Verified Complaint, and begs leave
to refer all issues of interpretation and legal conclusions to the Court.
9. Defendant denies knowledge or information sufficient to form a belief as to each
"12,"
and every allegation contained in paragraph of Plaintiff's Verified Courplaiñt, and begs leave
to refer all issues of interpretation and legal conclusions to the Court.
10. Defendant denies knowledge or information sufficient to form a belief as to each
"16,"
and every allegation contained in paragraph ofPlaintiff's Verified Complaint, and begs leave
to refer all issues of interpretation and legal conclusions to the Court.
11. Defendant denies knowledge or information sufficient to form a belief as to each
"17,"
and every allegation contained in paragraph of Plaintiff's Verified Complaiñt, and begs leave
to refer all issues of interpretation and legal conclusions to the Court.
12. Defendant denies knowledge or information sufficient to form a belief as to each
"12," "16,"
and every allegation contained in paragraphs and of Plaintiff's Verified Complaiñt.
"13," "14,"
13. Defendant denies each and every allegation contained in paragraphs
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"15," "I8," "19," "20," "21," "22," "23," "24," "25," "26," "27," "28," "29,"
and of Plaintiff's
Verified Complaint.
AS TO PLAINTIFF'S CAUSE OF ACTION AGAINST DEFENDANT
(Declar_atory Judgiigent)
14. Defendant repeats, realleges and reiterates each and every denial to each and every
"30"
allegation contained in the paragraphs referred to in paragraph of Plaintiff's Verified
Complaiñt, with the same force and effect as if more fully set forth at length herein.
15. Defendant denies each and every allegation contained in paragraphs "31", of
Plaintiff's Verified Complaiñt, and begs leave to refer all issues of interpretation and legal
conclusions to the Court.
16. Defendant denies knowledge or information sufficient to form a belief as to each
"32,"
and every allegation contained in paragraph of Plaintiff's Verified Complaint, and begs leave
to refer all issues of interpretation and legal conclusions to the Court.
17. Defendant denies knowledge or information sufficient to form a belief as to each
"33,"
and every allegation contained in paragraph of Plaintiff's Verified Complaiñt, and begs leave
to refer all issues of interpretation and legal conclusions to the Court.
18. Defendant denies knowledge or information sufficient to form a belief as to each
"34,"
and every allegation contaiñed in paragraph of Plaintiff's Verified Complaint, and begs leave
to refer all issues of interpretation and legal conclusions to the Court.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
19. The within action should be dismissed for Plaintiff's failure to name an
indispensable and necessary parties including persons or entities asserting an interest in the
premises and property located at and known as 245 Pine Hollow Road Oyster Bay New York
11771; Section 27, Block K, Lot 665 (hereiñafter referred to as the "Property").
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AS_AND FOR A SECOND AFFIRMATI-VE DEFENSE
20. Defendant pleads the defense of lack of consideration and/or mutuality of
obligations.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
21. That the Plaintiff has failed to properly plead a cause of action.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
hands."
22. The within action is barred in equity due to Plaintiff s "unclean
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
23. The Plaintiff s cause of action is barred by the applicable statute of limitations.
AS AND FOR AN SIXTH AFFIRMATIVE DEFENSE
24. The within action should be dismissed for Plaintiff's failure to follow the conditions
precedent set forth in the lease agreement.
AS AND FOR AN SEVENTH AFFIRMATIVE__DEFENSE
25. The within action should be dismissed for Plaintiff s failure to follow the conditions
precedent.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
26. Defendant asserts, pursuant to CPLR 3211 (a) (1), a defense of documentary
evidence.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
27. Defendant pleads the defense of lack of consideration.
AS AND FOR AN TENTH AFFIRMATIVE DEFENSE
28. Defendant pleads the defense of lack of a condition precedent.
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AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE AND
FIRST COUNTERCLAIM
29. That at all times hereafter stated, the Defendant CREMB Realty Inc., is a domestic
corporation duly organized and existing under the laws of the State of New York and is the owner
of the property located at and known as 245 Pine Hollow Road Oyster Bay New York 11771;
Section 27, Block K, Lot 665 (hereinafter referred to as the "Property").
"5"
30. That Plaintiff alleges in paragraph Of Plaintiff's Verified Complaint that
Plaintiff is a domestic limited liability company duly âüthorized to conduct business in the State
of New York maintaining a priñcipal place of business at 1100 Franklin Avenue, Suite 103, garden
City, New York 11530.
31. Plaintiff has permitted persons or entities to enter upon and occupy the Defendant's
premises.
32. Plaintiff without any authorization or permission and without notice to Defendant
has mortgaged an interest in the subject Property to persons and/or entities.
33. Plaintiff has failed to name the persons or entities to whom Plaintiff has created an
interest in the subject Property.
34. There exists no written lease or possession agreement for the Property between
Plaintiff and Defendant.
35. There exists no written lease or possession agrccmcñt for the Property between
Plaintiff and Defendant's predecessor James Frontero.
36. There exists no written lease or possession agreement for the P operty between an
entity known as DVK Realty LLC and Defendant.
"7"
37. Plaintiff, in paragraph of Plaintiff's Complaint, refers to a certain Original
Lease agreemcñt dated September 7, 1977, between D.V.K. Realty, Inc. and James Frontero.
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Plaintiff fails to provide a copy of the Lease or set forth the essential contents in Plaintiff's
pleading. The referenced Original Lease pre-dates Plaintiff 's existence.
38. Plaintiff has not pled the existence of any written agreement executed by the
parties'
Original Lease transferring to Plaintiff, D.V.K. Realty, Inc.'s interest in the Origiñãl Lease
"7"
referred to in paragraph of Plaintiff's Complaint.
"8"
39. Plaintiff, in paragraph of Plaintiff's Complaint, refers to a certain Arseñdrñent
to a Lease dated December 19, 1987, between D.V.K. Realty, Inc. and James Frontero. Plaintiff
fails to provide a copy of the Amendment to Lease or set forth the essential coñtêñts in Plaintiff's
pleading. The referenced Amendment dated December 19, 1987, pre-dates Plaintiff's existence.
40. Plaintiff has not pled the existeñce of any written agiccracñt executed by the parties
transferring to Plaintiff, D.V.K. Realty, Inc.'s interest in the Amendment referred to in paragraph
8 of Plaintiff's Complaint.
"9"
41. Plaintiff, in paragraph of Plaintiff's Complaint refers to a certain Second
Amendment to Lease dated Jañüary 17, 1989, between D.V.K. Realty, Inc. and James Frontero.
Plaintiff fails to provide a copy of the Second Amendment to Lease or set forth the essential
contents in Plaintiffs pleadiñg. The referenced Second Amendment. dated pre-
January 17, 1989,
dates Plaintiff's existence.
42. Plaintiff has not pled the existence of any written agreemcñt executed by the parties
transferring to Plaintiff, D.V.K. Realty, Inc.'s interest in the Second Amendment referred to in
paragraph 9 of Plaintiff's Complaint.
"10"
43. Plaintiff, in paragraph of Plaintiff's Complaint, refers to a certain Third
Amendment to Lease dated 28, 1989, between D.V.K. Inc. and James Frontero.
February Realty,
Plaintiff fails to provide a copy of the Second Amendment to Lease or set forth the essential
contents in Plaintiff's pleading. The referenced Third Amendment dated 1989 pre-
February 28,
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dates Plaintiff's existence.
44. Plaintiff has not pled the existence of any written agrccmcñt executed by the parties
transferring to Plaintiff, D.V.K. Realty, Inc 's interest in the Third Amendment referred to in
paragraph 10 of Plaintiff's Complaint.
45. That Plaintiff has regularly, deliberately, continuously and intentionally failed to
comply with the duties and obligations that were imposed upon D.V.K. Realty, Inc. under the
Original Amendment to Lease December the certain Second Amen±mat to Lease
Lease, 19, 1987,
dated January 17, 1989, and/or the certain Third Amendment to Lease dated February 28, 1989.
46. That Plaintiff has never, by writing or otherwise, assumed the obligations that were
imposed upon D.V.K. Realty, Inc. under the Original Lease, Amendment to Lease dated December
19, 1987, the certain Second Amendment to Lease dated January 17, 1989, and/or the certain Third
Amendment to Lease dated February 28, 1989.
47. Defendant, prior to the com..ne.. omont of this action, has taken actions which have
effectively terminated the interests of D.V.K. Realty, Inc. under the Original Lease, Amêñdmêñt
to Lease dated December 19, 1987, the certain Second Amendment to Lease dated January 17,
1989, and/or the certain Third Amendment to Lease dated February 28, 1989.
48. That by virtue of the foregoing, Defendant asserts that Plaintiff cannot claim any
rights under the Original Lease, Amendment to Lease dated December 19, 1987, the certain
Second Amadment to Lease dated January 17, 1989, and/or the certain Third Amendment to
Lease dated February 28, 1989.
49. There exists no writing or document upon which the Defendant could attempt to
enforce against the Plaintiff the duties or obligations under the Original Lease, Amendment to
Lease dated December 19, 1987, the certain Second Amendment to Lease dated January 17, 1989,
and/or the certain Third Amendment to Lease dated February 28, 1989.
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50. That, by writing, Plaintiff represented that the option period expired on December
31, 2018.
51. That Plaintiff, commencing January 1, 2019, proffered a use and occupancy
payment in an amount, at a time and in a manner not provided for and in completc contravention
to the terms set forth under the Original Lease, Amendment to Lease dated December 19, 1987,
the certain Second Amcñdment to Lease dated January 17, 1989, and/or the certain Third
Amendment to Lease dated February 28, 1989.
52. That Plaintiff has failed to comply with the insurance obligations under the Original
Lease, Amendment to Lease dated December 19, 1987, the certain Second Amendment to Lease
dated January 17, 1989, and/or the certain Third Amendment to Lease dated February 28, 1989.
53. That Plaintiff has failed to provide notices to Defendant as required under the
Original Lease, Ascadmeñt to Lease dated December 19, 1987, the certain Second Amendmeñt
to Lease dated January 17, 1989, and/or the certain Third Amendment to Lease dated February 28,
1989.
54. That Plaintiff has acted in a de facto maññer representing itself to be the owner of
the subject premises including filling out applications with governing bodies.
55. That by reason of the foregoing, an actual and justiciable controversy exists
between the parties for which there is no adequate remedy at law.
56. Defendant is seeking ajudgment declaring the rights and obligations of the Plaintiff
and Defendant as to the possession and occupancy of the premises.
WHEREFORE, Defendant demands that the Court dismiss Plaintiff's complaint in its
entirety and Defendant further demañds that the Court grant Defendant a judgment declaring that:
(a) Plaintiff is not a tenant under any valid and enforceable Lease with Landlord; (b) that any
attempt by Plaintiff to exercise any options is void; (c) that Plaintiff is not and was not able to
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create, transfer or assign any possessory, occupancy rights, or any other interests to any third party
in the Property; (d) that any attempted transfer or creation of possession or occupancy rights to a
third party is void; (e) that any attempted transfer or creation of security interest in the Property to
a third party is void; (f) that Plaintiff and any third party who claim any rights to the Defendant's
Property must vacate said Property and execute all necessary documents to remove any
encumbrance against said premises and Property; and (g) grant such other and further relief as this
Court deems just, proper and equitable.
DATED: Jericho, New York
December , 2019
LAW OFFICES F JAMES F. O'BRIEN
By:
James F. O'Brien,\l3sq.
AttorneyforDefenifant
500 N. Broadway, hulte 105
Jericho, New York 753
(516) 822-9000
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Ô¾af us '4l yfRWICATIOPi
I. ROSI: ANN HELi,llS0. 'f rea'.urer of CELMB Rhhf.1Y IN(
being duly
sworn, deptum and says that deponent has read the annexed Verified Amwerand Lounterciaim
and knows the contents thereof and the same are ins- to my I-nowkyfve excern styn: matter
shereinwhich are stated to be alleged bel'
on informationand f.and as 14, the,e matter I believe
them to he true.
.'
. AsN BT ,LlJSO
Swo to before me this
a'7 '1v of Decembe , 20]9
.1/IAR Llt
My commission expires June 14,2021
CommGssionnumber1193554
v.mm --^•v×.woonenee•
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Preview
FILED: NASSAU COUNTY CLERK 12/27/2019 02:05 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ---------------------------- ------------------------------------X DVK REALTY LLC, Plaintiff, VERIFIED ANSWER AND COUNTERCLAIM -against- Index No.: 617063/2019 CREMB REALTY INC., Defendant. ------------------------------------------- -------------------------X Defendant, CREMB REALTY INC., by its attorney, LAW OFFICES OF JAMES F. O'BRIEN, answering Plaintiff's Verified Complaint alleges, upon information and belief, as follows: 1. Defendant, CREMB REALTY INC., denies each and every allegation contaiñêd in "1," "2," "3," "4," the paragraphs of Plaintiff's Verified Complaint marked and designated and and asserts that the pleadings coñtaiñcd therein are improper to the extent the paragraphs contain conclusions of law. AS TO THE PARTIES 2. Defendant denies knowledge or information sufficient to form a belief as to the "5," allegations cóñtained in paragraph of Plaintiff's Verified Complaint. "6," 3. Defendant denies the allegations contained in paragraph of Plaintiff's Verified Complaint. AS TO RELEVANT FACTUAL BACKGROUND 4. Defendant denies knowledge or information sufficient to form a belief as to each "7," and every allegation contained in paragraph and begs leave to refer all issues of interpretation and legal conclusions to the Court. 1 of 10 FILED: NASSAU COUNTY CLERK 12/27/2019 02:05 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2019 5. Defendant denies knowledge or information sufficient to form a belief as to each "8" and every allegation contained in paragraph of Plaintiff's Verified Complaint and begs leave to refer all issues of interpretation and legal conclusions to the Court. 6. Defendant denies knowledge or information sufficient to form a belief as to each "9," and every allegation contained in paragraph of Plaintiff's Verified Complaiñt, and begs leave to refer all issues of interpretation and legal conclusions to the Court. 7. Defendant denies knowledge or information sufficient to form a belief as to each "10," and every allegation contained in paragraph of Plaintiff's Verified Compkint, and begs leave to refer all issues of interpretation and legal conclusions to the Court. 8. Defendant denies knowledge or information sufficient to form a belief as to each 1," and every allegation contained in paragraph "I of Plaintiff's Verified Complaint, and begs leave to refer all issues of interpretation and legal conclusions to the Court. 9. Defendant denies knowledge or information sufficient to form a belief as to each "12," and every allegation contained in paragraph of Plaintiff's Verified Courplaiñt, and begs leave to refer all issues of interpretation and legal conclusions to the Court. 10. Defendant denies knowledge or information sufficient to form a belief as to each "16," and every allegation contained in paragraph ofPlaintiff's Verified Complaint, and begs leave to refer all issues of interpretation and legal conclusions to the Court. 11. Defendant denies knowledge or information sufficient to form a belief as to each "17," and every allegation contained in paragraph of Plaintiff's Verified Complaiñt, and begs leave to refer all issues of interpretation and legal conclusions to the Court. 12. Defendant denies knowledge or information sufficient to form a belief as to each "12," "16," and every allegation contained in paragraphs and of Plaintiff's Verified Complaiñt. "13," "14," 13. Defendant denies each and every allegation contained in paragraphs 2 of 10 FILED: NASSAU COUNTY CLERK 12/27/2019 02:05 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2019 "15," "I8," "19," "20," "21," "22," "23," "24," "25," "26," "27," "28," "29," and of Plaintiff's Verified Complaint. AS TO PLAINTIFF'S CAUSE OF ACTION AGAINST DEFENDANT (Declar_atory Judgiigent) 14. Defendant repeats, realleges and reiterates each and every denial to each and every "30" allegation contained in the paragraphs referred to in paragraph of Plaintiff's Verified Complaiñt, with the same force and effect as if more fully set forth at length herein. 15. Defendant denies each and every allegation contained in paragraphs "31", of Plaintiff's Verified Complaiñt, and begs leave to refer all issues of interpretation and legal conclusions to the Court. 16. Defendant denies knowledge or information sufficient to form a belief as to each "32," and every allegation contained in paragraph of Plaintiff's Verified Complaint, and begs leave to refer all issues of interpretation and legal conclusions to the Court. 17. Defendant denies knowledge or information sufficient to form a belief as to each "33," and every allegation contained in paragraph of Plaintiff's Verified Complaiñt, and begs leave to refer all issues of interpretation and legal conclusions to the Court. 18. Defendant denies knowledge or information sufficient to form a belief as to each "34," and every allegation contaiñed in paragraph of Plaintiff's Verified Complaint, and begs leave to refer all issues of interpretation and legal conclusions to the Court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 19. The within action should be dismissed for Plaintiff's failure to name an indispensable and necessary parties including persons or entities asserting an interest in the premises and property located at and known as 245 Pine Hollow Road Oyster Bay New York 11771; Section 27, Block K, Lot 665 (hereiñafter referred to as the "Property"). 3 of 10 FILED: NASSAU COUNTY CLERK 12/27/2019 02:05 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2019 AS_AND FOR A SECOND AFFIRMATI-VE DEFENSE 20. Defendant pleads the defense of lack of consideration and/or mutuality of obligations. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 21. That the Plaintiff has failed to properly plead a cause of action. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE hands." 22. The within action is barred in equity due to Plaintiff s "unclean AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 23. The Plaintiff s cause of action is barred by the applicable statute of limitations. AS AND FOR AN SIXTH AFFIRMATIVE DEFENSE 24. The within action should be dismissed for Plaintiff's failure to follow the conditions precedent set forth in the lease agreement. AS AND FOR AN SEVENTH AFFIRMATIVE__DEFENSE 25. The within action should be dismissed for Plaintiff s failure to follow the conditions precedent. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 26. Defendant asserts, pursuant to CPLR 3211 (a) (1), a defense of documentary evidence. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 27. Defendant pleads the defense of lack of consideration. AS AND FOR AN TENTH AFFIRMATIVE DEFENSE 28. Defendant pleads the defense of lack of a condition precedent. 4 of 10 FILED: NASSAU COUNTY CLERK 12/27/2019 02:05 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2019 AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE AND FIRST COUNTERCLAIM 29. That at all times hereafter stated, the Defendant CREMB Realty Inc., is a domestic corporation duly organized and existing under the laws of the State of New York and is the owner of the property located at and known as 245 Pine Hollow Road Oyster Bay New York 11771; Section 27, Block K, Lot 665 (hereinafter referred to as the "Property"). "5" 30. That Plaintiff alleges in paragraph Of Plaintiff's Verified Complaint that Plaintiff is a domestic limited liability company duly âüthorized to conduct business in the State of New York maintaining a priñcipal place of business at 1100 Franklin Avenue, Suite 103, garden City, New York 11530. 31. Plaintiff has permitted persons or entities to enter upon and occupy the Defendant's premises. 32. Plaintiff without any authorization or permission and without notice to Defendant has mortgaged an interest in the subject Property to persons and/or entities. 33. Plaintiff has failed to name the persons or entities to whom Plaintiff has created an interest in the subject Property. 34. There exists no written lease or possession agreement for the Property between Plaintiff and Defendant. 35. There exists no written lease or possession agrccmcñt for the Property between Plaintiff and Defendant's predecessor James Frontero. 36. There exists no written lease or possession agreement for the P operty between an entity known as DVK Realty LLC and Defendant. "7" 37. Plaintiff, in paragraph of Plaintiff's Complaint, refers to a certain Original Lease agreemcñt dated September 7, 1977, between D.V.K. Realty, Inc. and James Frontero. 5 of 10 FILED: NASSAU COUNTY CLERK 12/27/2019 02:05 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2019 Plaintiff fails to provide a copy of the Lease or set forth the essential contents in Plaintiff's pleading. The referenced Original Lease pre-dates Plaintiff 's existence. 38. Plaintiff has not pled the existence of any written agreement executed by the parties' Original Lease transferring to Plaintiff, D.V.K. Realty, Inc.'s interest in the Origiñãl Lease "7" referred to in paragraph of Plaintiff's Complaint. "8" 39. Plaintiff, in paragraph of Plaintiff's Complaint, refers to a certain Arseñdrñent to a Lease dated December 19, 1987, between D.V.K. Realty, Inc. and James Frontero. Plaintiff fails to provide a copy of the Amendment to Lease or set forth the essential coñtêñts in Plaintiff's pleading. The referenced Amendment dated December 19, 1987, pre-dates Plaintiff's existence. 40. Plaintiff has not pled the existeñce of any written agiccracñt executed by the parties transferring to Plaintiff, D.V.K. Realty, Inc.'s interest in the Amendment referred to in paragraph 8 of Plaintiff's Complaint. "9" 41. Plaintiff, in paragraph of Plaintiff's Complaint refers to a certain Second Amendment to Lease dated Jañüary 17, 1989, between D.V.K. Realty, Inc. and James Frontero. Plaintiff fails to provide a copy of the Second Amendment to Lease or set forth the essential contents in Plaintiffs pleadiñg. The referenced Second Amendment. dated pre- January 17, 1989, dates Plaintiff's existence. 42. Plaintiff has not pled the existence of any written agreemcñt executed by the parties transferring to Plaintiff, D.V.K. Realty, Inc.'s interest in the Second Amendment referred to in paragraph 9 of Plaintiff's Complaint. "10" 43. Plaintiff, in paragraph of Plaintiff's Complaint, refers to a certain Third Amendment to Lease dated 28, 1989, between D.V.K. Inc. and James Frontero. February Realty, Plaintiff fails to provide a copy of the Second Amendment to Lease or set forth the essential contents in Plaintiff's pleading. The referenced Third Amendment dated 1989 pre- February 28, 6 of 10 FILED: NASSAU COUNTY CLERK 12/27/2019 02:05 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2019 dates Plaintiff's existence. 44. Plaintiff has not pled the existence of any written agrccmcñt executed by the parties transferring to Plaintiff, D.V.K. Realty, Inc 's interest in the Third Amendment referred to in paragraph 10 of Plaintiff's Complaint. 45. That Plaintiff has regularly, deliberately, continuously and intentionally failed to comply with the duties and obligations that were imposed upon D.V.K. Realty, Inc. under the Original Amendment to Lease December the certain Second Amen±mat to Lease Lease, 19, 1987, dated January 17, 1989, and/or the certain Third Amendment to Lease dated February 28, 1989. 46. That Plaintiff has never, by writing or otherwise, assumed the obligations that were imposed upon D.V.K. Realty, Inc. under the Original Lease, Amendment to Lease dated December 19, 1987, the certain Second Amendment to Lease dated January 17, 1989, and/or the certain Third Amendment to Lease dated February 28, 1989. 47. Defendant, prior to the com..ne.. omont of this action, has taken actions which have effectively terminated the interests of D.V.K. Realty, Inc. under the Original Lease, Amêñdmêñt to Lease dated December 19, 1987, the certain Second Amendment to Lease dated January 17, 1989, and/or the certain Third Amendment to Lease dated February 28, 1989. 48. That by virtue of the foregoing, Defendant asserts that Plaintiff cannot claim any rights under the Original Lease, Amendment to Lease dated December 19, 1987, the certain Second Amadment to Lease dated January 17, 1989, and/or the certain Third Amendment to Lease dated February 28, 1989. 49. There exists no writing or document upon which the Defendant could attempt to enforce against the Plaintiff the duties or obligations under the Original Lease, Amendment to Lease dated December 19, 1987, the certain Second Amendment to Lease dated January 17, 1989, and/or the certain Third Amendment to Lease dated February 28, 1989. 7 of 10 FILED: NASSAU COUNTY CLERK 12/27/2019 02:05 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2019 50. That, by writing, Plaintiff represented that the option period expired on December 31, 2018. 51. That Plaintiff, commencing January 1, 2019, proffered a use and occupancy payment in an amount, at a time and in a manner not provided for and in completc contravention to the terms set forth under the Original Lease, Amendment to Lease dated December 19, 1987, the certain Second Amcñdment to Lease dated January 17, 1989, and/or the certain Third Amendment to Lease dated February 28, 1989. 52. That Plaintiff has failed to comply with the insurance obligations under the Original Lease, Amendment to Lease dated December 19, 1987, the certain Second Amendment to Lease dated January 17, 1989, and/or the certain Third Amendment to Lease dated February 28, 1989. 53. That Plaintiff has failed to provide notices to Defendant as required under the Original Lease, Ascadmeñt to Lease dated December 19, 1987, the certain Second Amendmeñt to Lease dated January 17, 1989, and/or the certain Third Amendment to Lease dated February 28, 1989. 54. That Plaintiff has acted in a de facto maññer representing itself to be the owner of the subject premises including filling out applications with governing bodies. 55. That by reason of the foregoing, an actual and justiciable controversy exists between the parties for which there is no adequate remedy at law. 56. Defendant is seeking ajudgment declaring the rights and obligations of the Plaintiff and Defendant as to the possession and occupancy of the premises. WHEREFORE, Defendant demands that the Court dismiss Plaintiff's complaint in its entirety and Defendant further demañds that the Court grant Defendant a judgment declaring that: (a) Plaintiff is not a tenant under any valid and enforceable Lease with Landlord; (b) that any attempt by Plaintiff to exercise any options is void; (c) that Plaintiff is not and was not able to 8 of 10 FILED: NASSAU COUNTY CLERK 12/27/2019 02:05 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2019 create, transfer or assign any possessory, occupancy rights, or any other interests to any third party in the Property; (d) that any attempted transfer or creation of possession or occupancy rights to a third party is void; (e) that any attempted transfer or creation of security interest in the Property to a third party is void; (f) that Plaintiff and any third party who claim any rights to the Defendant's Property must vacate said Property and execute all necessary documents to remove any encumbrance against said premises and Property; and (g) grant such other and further relief as this Court deems just, proper and equitable. DATED: Jericho, New York December , 2019 LAW OFFICES F JAMES F. O'BRIEN By: James F. O'Brien,\l3sq. AttorneyforDefenifant 500 N. Broadway, hulte 105 Jericho, New York 753 (516) 822-9000 9 of 10 FILED: NASSAU COUNTY CLERK 12/27/2019 02:05 PM INDEX NO. 617063/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2019 Ô¾af us '4l yfRWICATIOPi I. ROSI: ANN HELi,llS0. 'f rea'.urer of CELMB Rhhf.1Y IN( being duly sworn, deptum and says that deponent has read the annexed Verified Amwerand Lounterciaim and knows the contents thereof and the same are ins- to my I-nowkyfve excern styn: matter shereinwhich are stated to be alleged bel' on informationand f.and as 14, the,e matter I believe them to he true. .' . AsN BT ,LlJSO Swo to before me this a'7 '1v of Decembe , 20]9 .1/IAR Llt My commission expires June 14,2021 CommGssionnumber1193554 v.mm --^•v×.woonenee• 10 of 10