Preview
FILED: NEW YORK COUNTY CLERK 08/01/2019 11:15 AM INDEX NO. 654280/2019
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/01/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
223 TROUTMAN, LLC,
Index No. 654280/19
Plaintiff,
-against- AMENDED VERIFIED COMPLAINT
LUCY MORRONE TAMBURINO and
MARIA IVERS as Preliminary Co-
Executors of the Estate of ROSINA
MORRONE and the ESTATE of ROSINA
MORRONE,
Defendants.
Plaintiff, 223 Troutman LLC, by its attorneys The Silber Law Firm, LLC, for its
Amended Verified Complaint against defendants Lucy Morrone Tamburino and Maria Ivers
as Preliminary Co-Executors of the Estate of Rosina Morrone and Estate of Rosina
Morrone, states and alleges as follows:
1. Plaintiff is a domestic limited liability company with its principal place of
business in Kings County, New York.
2. Upon information and belief, Lucy Morrone Tamburino and Maria Ivers are
Preliminary Co-Executors of defendant Estate of Rosina Morrone (the “Estate”).
3. On January 14, 2019, plaintiff executed a contract of sale (the “Contract”) with
defendant the Estate for the purchase of the two adjacent properties located at 322 East
116th Street, New York, New York, and 324 East 16th Street, New York, New York,
belonging to the Estate (the “Premises”).
4. A $200,000 down payment was made by plaintiff.
5. Annexed as Exhibit A is the Contract for the sale of the Premises.
6. The Contract identifies the property at 322 East 116th Street and the property
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at 324 East 116th Street collectively as “The Premises.” See Exh. A at §1.01.
7. The closing date was scheduled for March 1, 2019 and was subsequently
adjourned to June 11, 2019.
8. In §4.04 of the Contract, defendants expressly represented that the
“Premises are not subject to NYC Rent Stabilization Law and all units are free market.” See
Ex. A. at §4.04.
9. Plaintiff retained counsel to conduct due diligence in connection with the
transaction with defendants.
10. By letter, dated May 30, 2019, plaintiff’s due diligence counsel advised
plaintiff that DHCR records indicate that the Premises may include rent-controlled
apartments.
11. Annexed as Exhibit B is a copy of the letter from due diligence counsel.
12. On May 30, 2019, plaintiff’s attorney forwarded the letter from due diligence
counsel to defendants’ attorney via email and, because DHCR records indicated that the
Premises may in fact include rent-controlled apartments, he requested documentation
addressed to defendants’ representations that the “Premises are not subject to NYC Rent
Stabilitzation Law and all units are free market.”
13. Thereafter, plaintiff’s attorney made multiple requests for documentation
supporting these representations to no avail.
14. In response, defendants’ attorney offered that defendants would sign an
affidavit concerning these representations and offered to indemnify plaintiff.
15. Plaintiff’s due diligence counsel has informed it that defendants’ offers were
unacceptable and would not sufficiently protect plaintiff.
16. Despite plaintiff’s communication of this refusal and its basis, defendants
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have failed to make any effort to address the records currently on file with DHCR or to
provide any documentation to support their representations in the Contract that the
Premises are not subject to NYC rent stabilization and that all units are free market.
17. By letter, dated June 9, 2019, plaintiff’s attorney advised defendants that
plaintiff would not proceed with closing until plaintiff receives sufficient documentation that
the apartments on the Premises “are affirmatively free market or that the apartments are
vacant.”
18. A copy of the June 9, 2019, letter is annexed as Exhibit C.
19. Plaintiff was otherwise ready, willing, and able to close.
20. By letter, dated June 11, 2019, defendants’ attorney, while declaring that
plaintiff was in default and in anticipatory breach of the Contract, failed to offer any
requested supporting documentation.
21. A copy of the June 11, 2019, letter is annexed as Exhibit D.
22. To date, defendants have failed to provide the requested documentation.
23. Upon information and belief, plaintiff is soliciting offers for the Premises
despite the Contract and plaintiff’s claims.
AS AND FOR A FIRST CAUSE OF ACTION
(Specific Performance)
24. Plaintiff restates and realleges all of the foregoing.
25. On January 14, 2019, plaintiff executed a valid Contract with defendants for
the sale of the Premises.
26. In § 4.04 of the Contract, defendants expressly represented that the
“Premises are not subject to NYC Rent Stabilization Law and all units are free market.” See
Exh. A at §4.04.
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27. However, plaintiff’s due diligence counsel advised plaintiff, and plaintiff had
immediately notified defendants, that DHCR records indicate that the Premises may include
rent-controlled apartments, which plaintiff specifically drafted the Contract to exclude. See
Exh. B.
28. Plaintiff requested supporting documentation supporting defendants’
representations, but, despite multiple demands, defendants have refused to provide any.
29. As a result of defendants’ failure to provide requested documentation or
otherwise resolve this critical issue with plaintiff, plaintiff has been unable to move forward
with closing and promptly notified defendants’ counsel of the same.
30. Plaintiff has substantially performed its obligations under the Contract, and
was and remains ready, willing and able to perform its remaining obligations under the
Contract but for defendants’ failure to supply the necessary documentation.
31. Defendants were and are able to provide the documentation and/or otherwise
resolve this issue, but have failed to do so.
32. This Court should direct defendants to specifically perform under the terms of
the Contract and to undertake and to provide the information necessary to establish that the
Premises are not subject to rent stabilization laws and that all units are free market or
vacant and, upon provision of such documentation to plaintiff, directing defendants to
proceed promptly with the closing.
33. Plaintiff has no adequate remedy at law.
AS AND FOR A SECOND CAUSE OF ACTION
(Breach of Contract)
33. Plaintiff restates and realleges all of the foregoing.
34. There is a valid, existing contract between the parties.
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35. Plaintiff has at all times been and remains ready, willing and able to comply
with its obligations under the Contract.
36. Defendants are refusing to close, despite holding plaintiff’s funds under the
Contract.
37. Based on the foregoing, defendants have breached the Contract without any
right, permission or grounds to do so.
38. By reason of defendants’ breach, plaintiff has been damaged in an amount to
be determined at trial, jointly and severally, plus consequential damages, costs and interest.
AS AND FOR A THIRD CAUSE OF ACTION
(Purchaser/Vendee Lien)
34. Plaintiff repeats and realleges all of the foregoing.
35. The Contract creates a lien in plaintiff’s favor for all amounts paid by plaintiff
in connection with the Contract or Premises.
36. As such, plaintiff has a vendee’s lien on the Premises.
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WHEREFORE, plaintiff demands judgment against defendants
(A) on its First Cause of Action for specific performance, directing defendants to
provide plaintiff with sufficient documentation that the Premises are not subject to NYC rent
stabilization laws and that all units are free market or vacant and, upon provision of such
documentation to plaintiff, directing defendants to proceed promptly with the closing;
(B) on its Second Cause of Action for a Breach of Contract; and
(C) on its Third Cause of Action for the issuance of a lien in an amount to be
proven at trial but not less that $200,000, together with plaintiff’s expenses, costs and
disbursements in connection with this case and such other and further relief for plaintiff and
against defendants as this Court deems just and proper.
Dated: August 1, 2019
THE SILBER LAW FIRM, LLC
By _______________________
Meyer Y. Silber
Attorneys for Plaintiff
11 Broadway, Suite 715
New York, New York 10004
Tel.: (212) 765-4567
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Preview
FILED: NEW YORK COUNTY CLERK 08/01/2019 11:15 AM INDEX NO. 654280/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/01/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 223 TROUTMAN, LLC, Index No. 654280/19 Plaintiff, -against- AMENDED VERIFIED COMPLAINT LUCY MORRONE TAMBURINO and MARIA IVERS as Preliminary Co- Executors of the Estate of ROSINA MORRONE and the ESTATE of ROSINA MORRONE, Defendants. Plaintiff, 223 Troutman LLC, by its attorneys The Silber Law Firm, LLC, for its Amended Verified Complaint against defendants Lucy Morrone Tamburino and Maria Ivers as Preliminary Co-Executors of the Estate of Rosina Morrone and Estate of Rosina Morrone, states and alleges as follows: 1. Plaintiff is a domestic limited liability company with its principal place of business in Kings County, New York. 2. Upon information and belief, Lucy Morrone Tamburino and Maria Ivers are Preliminary Co-Executors of defendant Estate of Rosina Morrone (the “Estate”). 3. On January 14, 2019, plaintiff executed a contract of sale (the “Contract”) with defendant the Estate for the purchase of the two adjacent properties located at 322 East 116th Street, New York, New York, and 324 East 16th Street, New York, New York, belonging to the Estate (the “Premises”). 4. A $200,000 down payment was made by plaintiff. 5. Annexed as Exhibit A is the Contract for the sale of the Premises. 6. The Contract identifies the property at 322 East 116th Street and the property 1 of 6 FILED: NEW YORK COUNTY CLERK 08/01/2019 11:15 AM INDEX NO. 654280/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/01/2019 at 324 East 116th Street collectively as “The Premises.” See Exh. A at §1.01. 7. The closing date was scheduled for March 1, 2019 and was subsequently adjourned to June 11, 2019. 8. In §4.04 of the Contract, defendants expressly represented that the “Premises are not subject to NYC Rent Stabilization Law and all units are free market.” See Ex. A. at §4.04. 9. Plaintiff retained counsel to conduct due diligence in connection with the transaction with defendants. 10. By letter, dated May 30, 2019, plaintiff’s due diligence counsel advised plaintiff that DHCR records indicate that the Premises may include rent-controlled apartments. 11. Annexed as Exhibit B is a copy of the letter from due diligence counsel. 12. On May 30, 2019, plaintiff’s attorney forwarded the letter from due diligence counsel to defendants’ attorney via email and, because DHCR records indicated that the Premises may in fact include rent-controlled apartments, he requested documentation addressed to defendants’ representations that the “Premises are not subject to NYC Rent Stabilitzation Law and all units are free market.” 13. Thereafter, plaintiff’s attorney made multiple requests for documentation supporting these representations to no avail. 14. In response, defendants’ attorney offered that defendants would sign an affidavit concerning these representations and offered to indemnify plaintiff. 15. Plaintiff’s due diligence counsel has informed it that defendants’ offers were unacceptable and would not sufficiently protect plaintiff. 16. Despite plaintiff’s communication of this refusal and its basis, defendants 2 2 of 6 FILED: NEW YORK COUNTY CLERK 08/01/2019 11:15 AM INDEX NO. 654280/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/01/2019 have failed to make any effort to address the records currently on file with DHCR or to provide any documentation to support their representations in the Contract that the Premises are not subject to NYC rent stabilization and that all units are free market. 17. By letter, dated June 9, 2019, plaintiff’s attorney advised defendants that plaintiff would not proceed with closing until plaintiff receives sufficient documentation that the apartments on the Premises “are affirmatively free market or that the apartments are vacant.” 18. A copy of the June 9, 2019, letter is annexed as Exhibit C. 19. Plaintiff was otherwise ready, willing, and able to close. 20. By letter, dated June 11, 2019, defendants’ attorney, while declaring that plaintiff was in default and in anticipatory breach of the Contract, failed to offer any requested supporting documentation. 21. A copy of the June 11, 2019, letter is annexed as Exhibit D. 22. To date, defendants have failed to provide the requested documentation. 23. Upon information and belief, plaintiff is soliciting offers for the Premises despite the Contract and plaintiff’s claims. AS AND FOR A FIRST CAUSE OF ACTION (Specific Performance) 24. Plaintiff restates and realleges all of the foregoing. 25. On January 14, 2019, plaintiff executed a valid Contract with defendants for the sale of the Premises. 26. In § 4.04 of the Contract, defendants expressly represented that the “Premises are not subject to NYC Rent Stabilization Law and all units are free market.” See Exh. A at §4.04. 3 3 of 6 FILED: NEW YORK COUNTY CLERK 08/01/2019 11:15 AM INDEX NO. 654280/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/01/2019 27. However, plaintiff’s due diligence counsel advised plaintiff, and plaintiff had immediately notified defendants, that DHCR records indicate that the Premises may include rent-controlled apartments, which plaintiff specifically drafted the Contract to exclude. See Exh. B. 28. Plaintiff requested supporting documentation supporting defendants’ representations, but, despite multiple demands, defendants have refused to provide any. 29. As a result of defendants’ failure to provide requested documentation or otherwise resolve this critical issue with plaintiff, plaintiff has been unable to move forward with closing and promptly notified defendants’ counsel of the same. 30. Plaintiff has substantially performed its obligations under the Contract, and was and remains ready, willing and able to perform its remaining obligations under the Contract but for defendants’ failure to supply the necessary documentation. 31. Defendants were and are able to provide the documentation and/or otherwise resolve this issue, but have failed to do so. 32. This Court should direct defendants to specifically perform under the terms of the Contract and to undertake and to provide the information necessary to establish that the Premises are not subject to rent stabilization laws and that all units are free market or vacant and, upon provision of such documentation to plaintiff, directing defendants to proceed promptly with the closing. 33. Plaintiff has no adequate remedy at law. AS AND FOR A SECOND CAUSE OF ACTION (Breach of Contract) 33. Plaintiff restates and realleges all of the foregoing. 34. There is a valid, existing contract between the parties. 4 4 of 6 FILED: NEW YORK COUNTY CLERK 08/01/2019 11:15 AM INDEX NO. 654280/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/01/2019 35. Plaintiff has at all times been and remains ready, willing and able to comply with its obligations under the Contract. 36. Defendants are refusing to close, despite holding plaintiff’s funds under the Contract. 37. Based on the foregoing, defendants have breached the Contract without any right, permission or grounds to do so. 38. By reason of defendants’ breach, plaintiff has been damaged in an amount to be determined at trial, jointly and severally, plus consequential damages, costs and interest. AS AND FOR A THIRD CAUSE OF ACTION (Purchaser/Vendee Lien) 34. Plaintiff repeats and realleges all of the foregoing. 35. The Contract creates a lien in plaintiff’s favor for all amounts paid by plaintiff in connection with the Contract or Premises. 36. As such, plaintiff has a vendee’s lien on the Premises. 5 5 of 6 FILED: NEW YORK COUNTY CLERK 08/01/2019 11:15 AM INDEX NO. 654280/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/01/2019 WHEREFORE, plaintiff demands judgment against defendants (A) on its First Cause of Action for specific performance, directing defendants to provide plaintiff with sufficient documentation that the Premises are not subject to NYC rent stabilization laws and that all units are free market or vacant and, upon provision of such documentation to plaintiff, directing defendants to proceed promptly with the closing; (B) on its Second Cause of Action for a Breach of Contract; and (C) on its Third Cause of Action for the issuance of a lien in an amount to be proven at trial but not less that $200,000, together with plaintiff’s expenses, costs and disbursements in connection with this case and such other and further relief for plaintiff and against defendants as this Court deems just and proper. Dated: August 1, 2019 THE SILBER LAW FIRM, LLC By _______________________ Meyer Y. Silber Attorneys for Plaintiff 11 Broadway, Suite 715 New York, New York 10004 Tel.: (212) 765-4567 6 6 of 6