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FILED: NEW YORK COUNTY CLERK 07/16/2020 04:26 PM INDEX NO. 654078/2019
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/16/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
BSD 80 BROAD LLC,
Index No.: 654078/2019
Plaintiff,
NOTICE OF APPEAL
-against-
LSG (US) LLC f/k/a
LEGAL SOLUTIONS GROUP, LLC,
Defendant
PLEASE TAKE NOTICE, that Defendant LSG (US) LLC f/k/a Legal Soh tions Group,
LLC ("Defendant") hereby appeals to the Appellate Division of the Supreme Court of the State of
New First J---!:-
:-1 from each and part of the Order of the Honorable Alan
York, Department, every
C. Martin, J.S.C., dated July 6, 2020 and entered with the Clerk of New York County on July 6,
2020.
Dated: New York, New York
July 16, 2020
TARTER KRINSKY & DROGIN, LLP
Attorneys for Defendant
Anthony D. Dougherty
Jonathan E. Temchin
1350 Broadway
New York, New York 10018
Tel.: (212) 216-8000
Email: adougherty(a),tarterkrinsky.com
Email: itemchin@tarterkrinsky.com
TO: LACHTMAN COHEN P.C.
Attorneys for Plaintiff
Brian S. Cohen
245 Main Street, Suite 230
White Plains, New York 10601
Tel.: (914) 505-6093
Email: bcohenalcoclaw.com
nory:1
{Client/085598/3/02140158 }
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FILED: NEW YORK COUNTY CLERK 07/16/2020 04:26 PM INDEX NO. 654078/2019
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Bupreme Gourt of t1 e 9tate of New Worlt
Appellate Binision: First Jubtrial Bepartment
Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil
[a])
.- - - . - -. - .-. ...-. . - . . - . .- . . . .- . For Court of Original Instance
. . -. - . - . . . .- . - -. . . . - .-.
BSD 80 BROAD LLC
Date Notice
of Appeal Filed
- against
LSG (US) LLCT/R/a
LEGAL SOLUTIONS LLC For Appellate Division
GROUP,
O Civil Action O CPLR article78 Proceeding E Appeal Transferred Proceeding
O CPLR article75 Arbitration O Special Proceeding Other O Original Proceedings CPLR Article78
ActionCommenced under CPLR O CPLR Article
78 Executive Law § 298
214-g O Habeas Corpus Proceeding
U Eminent Domain CPLR 5704 Review
Labor Law 220 or 220-b
Public Officers Law § 36
Real Property Tax Law § 1278
O Administrative Review M Business Relationships M Commercial M Contracts
O Declaratory Judgment O Domestic Relations O Election Law O Estate Matters
O Family Court O Mortgage Foreclosure O Miscellaneous O Prisoner Discipline & Parole
O Real Property O Statutory O Taxation O Torts
(other than foreclosure)
Informational Statement - Civil
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Appeal
Paper Appealed From (Check one only): Ifan appeal has been taken from more than one order or
judgment by the filingof thisnotice of appeal, please
indicate the below information for each such order or
judgment appealed from on a separate sheet of paper.
O Amended Decree O Determination E Order O Resettled Order
O Amended Judgement O Finding O Order & Judgment O Ruling
O Amended Order O Interlocutory Decree O Partial Decree O Other (specify):
O Decision O Interlocutory Judgment O Resettled Decree
O Decree O Judgment O Resettled Judgment
Court: Supreme Court County: New York
Dated: 07/06/2020 | Entered: July 6, 2020
Judge (name in Hon.
full): Alan C. Martin Index No.:654078/2019
Stage: E Interlocutory O Final O Post-Final Trial: O Yes E No If Yes: O Jury O Non-Jury
Prior Unperfected Appeal and Related Case Information
Are any appeals arising in thesame action or proceeding currently pending in the court? O Yes R No
IfYes, please set forth the Appellate Division Case Number assigned to each such appeal.
Where appropriate, indicate whether there isany related action or proceeding now in any court of thisor any other
jurisdiction, and ifso, the status of the case:
Statute authorizing commencement of proceeding in the Appellate Division:
Court: Choose Court County: Choose County
Judge (name in full): Order of Transfer Date:
CPLR 5704 Review of Ex Parte Order:
Court: Choose Court County: Choose Countv
Judge (name in full): Dated:
Description of Appeal, Proceeding or Application and Statement of Issues
Description: Ifan appeal, briefly describe the paper appealed from. Ifthe appeal is from an order, specify the relief
requested and whether the motion was granted or denied. Ifan original proceeding commenced in this court or transferred
pursuant to CPLR 7804(g), briefly describe the object of proceeding. Ifan application under CPLR 5704, briefly describe the
nature of the ex parte order to be reviewed.
Appeal from the Order of the Hon. Alan C. Martin, J.S.C., which granted Plaintiff's motion to dismiss
Defendant's affirmative defenses.
Informational Statement - Civil
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Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds
for reversal, or modification to be advanced and the specific reliefsought on appeal.
1. whether the trial court erred when itgranted Plaintiffs motion to dismiss Defendants defenses.
2. whether the trialcourt erred when itrelied on the affidavit and other documents submitted b Plaintiff when it
granted Plaintiffs motion to dismiss Defendant's defenses even though under CPLR Rule 321 the trialcourt was
required to accept Defendant's factual allegations as true.
3. whether the trial
court erred when itruled that a communication from Plaintiffs employee and agent failed to raise
an issue of fact.
4. whether the trialcourt erred when itruled that Defendant did not desert the leased premises.
5. whether the trialcourt erred when itruled that Plaintiffwas not obligated to mitigate itsdamages.
6. whether the trialcourt made any other error in fact or law that resulted in the Order being appealed from.
Instructions: Fillinthe name of each party to the action or proceeding, one name per line. Ifthisform isto be filed for an
appeal, indicate the status of the party inthe court of original instance and his,her, or itsstatus in thiscourt, ifany. If this
form isto be filed for a proceeding commenced in this court, fillin only the party s name and his, her, or its status in this
court.
No. Party Name Original Status Appellate Division Status
1 LSG (US) LLC f/k/a LEGAL SOLUTIONS GROUP, LLC Defendant Appellant
2 BSD 80 BROAD LLC
3
7
Informational Statement - Civil
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Instructions: Fillinthe names of the attorneys or firms for the respective parties. If thisform is tobe filedwith the
notice of petition or order to show cause by which a special proceeding is tobe commenced inthe Appellate Division,
only the name of the attorney for the petitioner need be provided. In the event that a litigantrepresents herself or
Se"
himself, the box marked "Pro must be checked and the appropriate information for that litigant must be supplied
in the spaces provided.
Attorney/Firm Name: Tarter & Drogin LLP - Jonathan E. Temchin
Krinsky
Address: 1350 Broadway
City:New York State: NY Zip: 10018 | Telephone No: 212-216-8000
E-mail Address: jtemchin@tarterkrinsky.com
Attorney Type: M Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):1
Atto n F rn ÑÏrÁÁ LÄÖ-ÍTMÁÑ COÑÈÑ P b BÉiah b. Co
Address: 245 Main Street, Suite 230
City:White Plains State: NY | Zip:10601 Telephone No: 914-505-6093
|
E-mail Address: bcohen@lcpclaw.com
Attorney Type: M Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):2
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (setforth party number(s) from table above):
Átt r ÁÝf m Árbe
Address:
City: State: Zip: Telephone No:
|
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Informational Statement - Civil
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07/06/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No. 654078/2019
BSD 80 BROAD LLC,
Marin, J.
Plaintiff,
Motion Seq. No. 001
LSG LLC f/k/a NOTICE OF ENTRY
(US)
LEGAL SOLUTIONS GROUP, LLC,
Defendants.
PLEASE TAKE NOTICE that attached is a true and correct copy of an Order of
the Hon. Alan C. Marin, dated July 6, 2020, and entered by the Clerk of the Court of the
Supreme Court of the State of New York, County of New York, on July 6, 2020.
Dated: July 6, 2020 LACHTMAN COHEN P.C.
_/s/ Brian S. Cohen
Brian S. Cohen
600 Third Avenue, 2nd Floor
New York, NY 10016
Tel: (646) 838-0275
Email: bcohen@lepelaw.com
Attorneys for Plaintiff
TO: All Counsel of Record (By NYSCEF)
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35 - -- ----- RECEIVED
RECEIVED NYSCEF:
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
Alan C. Marin 34
PRESENT: PART
Justice
BSD 80 Broad 654078/2019
LLC, WDEX NO.
-v- MOTION DATE
monoussa 001
LSG (US) LLC f/k/a
Legal Solutions Group, LLC.
.... ............
...................................................................
. __.__._ ..........
..... . .. .
. . .___.
The following papers, numbered 1 to__.__ , were read on thismotion tolfor _ __ . ....
Notice of Motion/Order to Show Cause - Affidavits -Exhibits No(s).
Answering Affidavits- Exhibits_ __ No(s).
Replying Affidavits No(s). __
Upon the foregoing papers, itis ordered that thismotion is
See the attached order;
o
a
ALAN C. MARIN
2 2 JUSTICE OF THE SUPREME COURT
Dated: O O . ... .... ......,J.S.C.
1. CHEC K ONE: ........... U
...........................-.....
CASE DISPOSED [X NON-FINAL DISPOSITION
2. CHECK AS APPROPRIATE: ...........................MOTION
IS: GRANTED U DENIED 1GRANTED IN PART U 0THER
3. CHECK IF APPROPRIATE: ..................
..........................., SETTLE ORDER USUBMIT ORDER
DO NOT POST U FIDUCIARY APPOtNTMENT REFERENCE
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SUPREME COURT OF THE STKrE OF NEW YORK
COUNTY OF NEW YORK
BSD 80 BROAD LLC,
Plaintiff,
-against- ORDER
Index no. 654078/2019
Motion no. 001
LSG (US) LLC f/k/a
LEGAL SOLUTIONS GROUP, LLC,
Defendant.
The Court has considered efiled documents 1 through 6, 8 through 15, 17 and 19 through 3 l.
Defendant and plaintiff's predecessor-in-interest entered into a commercial lease for a portion of
27ª¹
the floor of Broad Street in lower Manhattan on March 13, 2009; occupancy began on that
date, and the lease, amended in 201.2 and 2013, has a term through September 30, 2021. BSD
acquired the building on September 12, 2014.
On May 1, 2019, LSG vacated the premises, which.according to plaintiff was without having
permission or authorization to do so. BSD 80 Broad filed a summons and complaint on July 17,
2019 for $27,735.92 in unpaid rent, plus additional charges and fees. In its answer, two of I SG's
allirmative defenses contend that plaintiff terminated the agreement, itaccepted defendant's
surrender of the premises and took actions that had the effect of preventing defendant from
returning to the space.
Plaintiff BSD moves here to dismiss these two, along with the other allirmative defenses, which
are, by and large, standard. For example, the third affirmative defense states that plaintiff s claim
is barred by the "equitable doctrines of release, accord and satisfaction, res judicata, collateral
hands"
estoppel, laches, estoppel, acquiescence, waiver, ratification and/or unclean (document 3,
p 3), Defendant LSG's memorandum of law argues that "One need not look beyond the
'wherefore'
clause in the Complaint which requests that this Court award Plaintiff 'such other
proper,"'
relief as the Court deems just and adding that this includes equitable relief (document
26, p 8)..
This Court finds that we would have to look beyond the wherefore clause; these affirmative
defenses are struck. To the extent that they depend upon the email exchange of May 20 and May
24, 2019, see below.
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In itsfourth affirmative defense, defendant contends that any damages should be barred or
reduced for failure to mitigate, one of a landlord's options from Holy Properties Ltd v
citmg
Kenneth Cole Productions, 87 NY2d 130, 133-134: "When defendant abandoned these premises
prior to expiration of the lease, the landlord had three options: (1) itcould do nothing and collect
"'
the full rent due under the lease Defendant LSG argues that what itdescribed as a "gut
renovation" do.nothing."
is at odds with "it could This Court disagrees; defendant supplies no
support for its interpretation. Moreover, the second sentence of Article.26.(c) provides that "The
failure of Landlord to re-let the Premises or any part or parts thereof shall not release or affect
damages."
Tenant's liability fbr
Defendant's memorandum argues that BSD 80 Broad has breached article 25(1) of the lease by
failing to provide itwith a notice of default and an opportunity to cure, which under article 26 is
a condition precedent for holding defendant to future rent after the premises is surrendered.
Paragraph of article 25 covers defaults for other than non-payment - - violation of
(1) desertion,
non-monetary covenants and bankruptcy. What occurred here was not a desertion, which
describes a situation when a tenant vacates or abandons the premises, but remains.in possession.
In that case, the landlord does owe the tenant notice and an opportunity to cure.
Defendant submits the affidavit of Gary Markham, president of LSG, which attaches his
February 25, 2019 letter to plaintiff; "Pursuant to the Good Guy Guaranty related to the above
lease, LSG US LLC is hereby providmg you with 90 days written notice to surrender the space,
25"' same"
effective today, February 2019. Please acknowledge (document 24).
The good guy guaranty covered Mr. IVlarkham's obligation as guarantor, and plaintiff does not
dispute that Markham's obligation thereunder has ceased. Mr. Markham's affidavit further states.
that LSG moved out of 80 Broad on about May 1, and shortly thereafter plaintiff began a gut
renovation and disposed of a smart board and projector that belonged to LSG. "Based on
"
PlaintBPs actions throughout my move and my communications with Plaintiff's representatives
Markham concluded that plaintiff 80 Broad had agreed that defendant LSG was no longer
obligated for rent or other payments per the lease (document 22, 18).
Defendant's president states.that plaintiff acknowledged the termination of the lease to him
verbally.and in writing- He relies upon the email exchange of May 20 and May 24, 2019
(document 25). The first email was Markham's to the landlord, which contained the subject
statement;"
heading of "June Rent Markham's text read that the good guy warranty was
activated Februarf 25, with a 90-day limit, that LSG has vacated and that "no further rent
payments shall be forthcoming as LSG has no funds or assets to cover these funds. This has been
in.person."
explained to your management in writing and
The othertwo options are that:"(2) itcould accept the tenant'ssurrender, reenterthe premises and relet
them foritsown account thereby releasingthe tenant from further for
liability rent, or(3) it couldnotify the tenant
benefit."
thatitwas entering and relettingthe premises for thetenant's
2
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statement,"
On.May 24, 2019, Danielle: Purdy of BSD responded "Please disregard the June rent
and she noted that some things had been left in the LSG suite and asked when they would be
removed.
David Israni is the senior managing director of Broad Street Development which manages
plaintiff BSD 80 Broad. In his affidavit of January 23,.2020, he explains that Danielle Purdy, a
former BSD employee, was at the time, a "low-level Assistant Property Manager with no
Plaintiff"
knowledge of plaintiff's legal position concerning Defendant and no authority to bind
(document 28, ¶ 14).
The authority of an employee to bind her employer can be a question for the trier of fact (see PJl
2:235), Ms. Purdy's email is.insufficient to raise a question of fact in view of:
1) Plaintiff s continuing to invoice defendant for its financial obligations under the lease;
monthly invoices, dated from June 1, 2019 through.January 1, 2020,.have been submitted
(document31);
2) Article 43 (a) of the lease provides that "No agreement shall be effective to change, modify,
waive, release, discharge, terminate or effect an abandonment of this Lease, in whole or in part,
unless such agreement is in writing, expressly refers to this Lease and is signed by the party
against whom enforcement 0.fthe change, modification [etc] is sought (document.23); and
3) BSD's February 28, 2019 letter to Mr. Markham, which reads in part: "We are in receipt of
Tenant's letter dated February 25, 2019, advising that Tenant will be vacating the Premises,
notwithstanding that the Lease does not expire until September 30, 2021. Please be advised that
Tenant's purported surrender is not deemed a termination of the Lease and is without prejudice
to any and all rights the Landlord may have pursuant to the Lease, including . .. the payment of
."
rent and additional rent through the balance of the Lease term . , (document 14).
The foregoing discussion of the contract terms and the email exchange contprehends the second
(documentary evidence), fifth(condition precedent), sixth (plaintiff's or third party actions), and
seventh (breach of contract) affirmative defenses, which are also not viable.
4 -% -*
NOW therefore, in view of the foregoing,
defendants'
IT IS ORDERED, that plaintiff s motion to dismiss affirmative defenses is granted
in its entirety.
ENTER July 6, 2020
Alan C. Marin J.S.C.
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FILED: NEW YORK COUNTY CLERK 07/16/2020 04:26 PM INDEX NO. 654078/2019 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/16/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK BSD 80 BROAD LLC, Index No.: 654078/2019 Plaintiff, NOTICE OF APPEAL -against- LSG (US) LLC f/k/a LEGAL SOLUTIONS GROUP, LLC, Defendant PLEASE TAKE NOTICE, that Defendant LSG (US) LLC f/k/a Legal Soh tions Group, LLC ("Defendant") hereby appeals to the Appellate Division of the Supreme Court of the State of New First J---!:- :-1 from each and part of the Order of the Honorable Alan York, Department, every C. Martin, J.S.C., dated July 6, 2020 and entered with the Clerk of New York County on July 6, 2020. Dated: New York, New York July 16, 2020 TARTER KRINSKY & DROGIN, LLP Attorneys for Defendant Anthony D. Dougherty Jonathan E. Temchin 1350 Broadway New York, New York 10018 Tel.: (212) 216-8000 Email: adougherty(a),tarterkrinsky.com Email: itemchin@tarterkrinsky.com TO: LACHTMAN COHEN P.C. Attorneys for Plaintiff Brian S. Cohen 245 Main Street, Suite 230 White Plains, New York 10601 Tel.: (914) 505-6093 Email: bcohenalcoclaw.com nory:1 {Client/085598/3/02140158 } 1 of 10 FILED: NEW YORK COUNTY CLERK 07/16/2020 04:26 PM INDEX NO. 654078/2019 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/16/2020 Bupreme Gourt of t1 e 9tate of New Worlt Appellate Binision: First Jubtrial Bepartment Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil [a]) .- - - . - -. - .-. ...-. . - . . - . .- . . . .- . For Court of Original Instance . . -. - . - . . . .- . - -. . . . - .-. BSD 80 BROAD LLC Date Notice of Appeal Filed - against LSG (US) LLCT/R/a LEGAL SOLUTIONS LLC For Appellate Division GROUP, O Civil Action O CPLR article78 Proceeding E Appeal Transferred Proceeding O CPLR article75 Arbitration O Special Proceeding Other O Original Proceedings CPLR Article78 ActionCommenced under CPLR O CPLR Article 78 Executive Law § 298 214-g O Habeas Corpus Proceeding U Eminent Domain CPLR 5704 Review Labor Law 220 or 220-b Public Officers Law § 36 Real Property Tax Law § 1278 O Administrative Review M Business Relationships M Commercial M Contracts O Declaratory Judgment O Domestic Relations O Election Law O Estate Matters O Family Court O Mortgage Foreclosure O Miscellaneous O Prisoner Discipline & Parole O Real Property O Statutory O Taxation O Torts (other than foreclosure) Informational Statement - Civil 2 of 10 FILED: NEW YORK COUNTY CLERK 07/16/2020 04:26 PM INDEX NO. 654078/2019 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/16/2020 Appeal Paper Appealed From (Check one only): Ifan appeal has been taken from more than one order or judgment by the filingof thisnotice of appeal, please indicate the below information for each such order or judgment appealed from on a separate sheet of paper. O Amended Decree O Determination E Order O Resettled Order O Amended Judgement O Finding O Order & Judgment O Ruling O Amended Order O Interlocutory Decree O Partial Decree O Other (specify): O Decision O Interlocutory Judgment O Resettled Decree O Decree O Judgment O Resettled Judgment Court: Supreme Court County: New York Dated: 07/06/2020 | Entered: July 6, 2020 Judge (name in Hon. full): Alan C. Martin Index No.:654078/2019 Stage: E Interlocutory O Final O Post-Final Trial: O Yes E No If Yes: O Jury O Non-Jury Prior Unperfected Appeal and Related Case Information Are any appeals arising in thesame action or proceeding currently pending in the court? O Yes R No IfYes, please set forth the Appellate Division Case Number assigned to each such appeal. Where appropriate, indicate whether there isany related action or proceeding now in any court of thisor any other jurisdiction, and ifso, the status of the case: Statute authorizing commencement of proceeding in the Appellate Division: Court: Choose Court County: Choose County Judge (name in full): Order of Transfer Date: CPLR 5704 Review of Ex Parte Order: Court: Choose Court County: Choose Countv Judge (name in full): Dated: Description of Appeal, Proceeding or Application and Statement of Issues Description: Ifan appeal, briefly describe the paper appealed from. Ifthe appeal is from an order, specify the relief requested and whether the motion was granted or denied. Ifan original proceeding commenced in this court or transferred pursuant to CPLR 7804(g), briefly describe the object of proceeding. Ifan application under CPLR 5704, briefly describe the nature of the ex parte order to be reviewed. Appeal from the Order of the Hon. Alan C. Martin, J.S.C., which granted Plaintiff's motion to dismiss Defendant's affirmative defenses. Informational Statement - Civil 3 of 10 FILED: NEW YORK COUNTY CLERK 07/16/2020 04:26 PM INDEX NO. 654078/2019 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/16/2020 Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds for reversal, or modification to be advanced and the specific reliefsought on appeal. 1. whether the trial court erred when itgranted Plaintiffs motion to dismiss Defendants defenses. 2. whether the trialcourt erred when itrelied on the affidavit and other documents submitted b Plaintiff when it granted Plaintiffs motion to dismiss Defendant's defenses even though under CPLR Rule 321 the trialcourt was required to accept Defendant's factual allegations as true. 3. whether the trial court erred when itruled that a communication from Plaintiffs employee and agent failed to raise an issue of fact. 4. whether the trialcourt erred when itruled that Defendant did not desert the leased premises. 5. whether the trialcourt erred when itruled that Plaintiffwas not obligated to mitigate itsdamages. 6. whether the trialcourt made any other error in fact or law that resulted in the Order being appealed from. Instructions: Fillinthe name of each party to the action or proceeding, one name per line. Ifthisform isto be filed for an appeal, indicate the status of the party inthe court of original instance and his,her, or itsstatus in thiscourt, ifany. If this form isto be filed for a proceeding commenced in this court, fillin only the party s name and his, her, or its status in this court. No. Party Name Original Status Appellate Division Status 1 LSG (US) LLC f/k/a LEGAL SOLUTIONS GROUP, LLC Defendant Appellant 2 BSD 80 BROAD LLC 3 7 Informational Statement - Civil 4 of 10 FILED: NEW YORK COUNTY CLERK 07/16/2020 04:26 PM INDEX NO. 654078/2019 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/16/2020 Instructions: Fillinthe names of the attorneys or firms for the respective parties. If thisform is tobe filedwith the notice of petition or order to show cause by which a special proceeding is tobe commenced inthe Appellate Division, only the name of the attorney for the petitioner need be provided. In the event that a litigantrepresents herself or Se" himself, the box marked "Pro must be checked and the appropriate information for that litigant must be supplied in the spaces provided. Attorney/Firm Name: Tarter & Drogin LLP - Jonathan E. Temchin Krinsky Address: 1350 Broadway City:New York State: NY Zip: 10018 | Telephone No: 212-216-8000 E-mail Address: jtemchin@tarterkrinsky.com Attorney Type: M Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above):1 Atto n F rn ÑÏrÁÁ LÄÖ-ÍTMÁÑ COÑÈÑ P b BÉiah b. Co Address: 245 Main Street, Suite 230 City:White Plains State: NY | Zip:10601 Telephone No: 914-505-6093 | E-mail Address: bcohen@lcpclaw.com Attorney Type: M Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above):2 Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (setforth party number(s) from table above): Átt r ÁÝf m Árbe Address: City: State: Zip: Telephone No: | E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Informational Statement - Civil 5 of 10 FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/16/2020 07/06/2020 04:26 02:50 PM PM| INDEX INDEX NO. NO. 654078/2019 654078/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 36 35 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/16/2020 07/06/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No. 654078/2019 BSD 80 BROAD LLC, Marin, J. Plaintiff, Motion Seq. No. 001 LSG LLC f/k/a NOTICE OF ENTRY (US) LEGAL SOLUTIONS GROUP, LLC, Defendants. PLEASE TAKE NOTICE that attached is a true and correct copy of an Order of the Hon. Alan C. Marin, dated July 6, 2020, and entered by the Clerk of the Court of the Supreme Court of the State of New York, County of New York, on July 6, 2020. Dated: July 6, 2020 LACHTMAN COHEN P.C. _/s/ Brian S. Cohen Brian S. Cohen 600 Third Avenue, 2nd Floor New York, NY 10016 Tel: (646) 838-0275 Email: bcohen@lepelaw.com Attorneys for Plaintiff TO: All Counsel of Record (By NYSCEF) 61 of of 10 5 FILED: FILED: NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/16/2020 07/06/2020 04:26 02:50 PM PM| INDEX INDEX NO. NO. 654078/2019 654078/2019 NYSCEF NYSCEF DOC. DOC . NO. No. 36 35 - -- ----- RECEIVED RECEIVED NYSCEF: NYSCEF: 07/16/2020 07/06/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Alan C. Marin 34 PRESENT: PART Justice BSD 80 Broad 654078/2019 LLC, WDEX NO. -v- MOTION DATE monoussa 001 LSG (US) LLC f/k/a Legal Solutions Group, LLC. .... ............ ................................................................... . __.__._ .......... ..... . .. . . . .___. The following papers, numbered 1 to__.__ , were read on thismotion tolfor _ __ . .... Notice of Motion/Order to Show Cause - Affidavits -Exhibits No(s). Answering Affidavits- Exhibits_ __ No(s). Replying Affidavits No(s). __ Upon the foregoing papers, itis ordered that thismotion is See the attached order; o a ALAN C. MARIN 2 2 JUSTICE OF THE SUPREME COURT Dated: O O . ... .... ......,J.S.C. 1. CHEC K ONE: ........... U ...........................-..... CASE DISPOSED [X NON-FINAL DISPOSITION 2. CHECK AS APPROPRIATE: ...........................MOTION IS: GRANTED U DENIED 1GRANTED IN PART U 0THER 3. CHECK IF APPROPRIATE: .................. ..........................., SETTLE ORDER USUBMIT ORDER DO NOT POST U FIDUCIARY APPOtNTMENT REFERENCE 7I of of 10 e FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/16/2020 07/06/2020 04:26 02 : 50 PM PM| INDEX INDEX NO. NO. 654078/2019 654078/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 36 35 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/16/2020 07/06/2020 SUPREME COURT OF THE STKrE OF NEW YORK COUNTY OF NEW YORK BSD 80 BROAD LLC, Plaintiff, -against- ORDER Index no. 654078/2019 Motion no. 001 LSG (US) LLC f/k/a LEGAL SOLUTIONS GROUP, LLC, Defendant. The Court has considered efiled documents 1 through 6, 8 through 15, 17 and 19 through 3 l. Defendant and plaintiff's predecessor-in-interest entered into a commercial lease for a portion of 27ª¹ the floor of Broad Street in lower Manhattan on March 13, 2009; occupancy began on that date, and the lease, amended in 201.2 and 2013, has a term through September 30, 2021. BSD acquired the building on September 12, 2014. On May 1, 2019, LSG vacated the premises, which.according to plaintiff was without having permission or authorization to do so. BSD 80 Broad filed a summons and complaint on July 17, 2019 for $27,735.92 in unpaid rent, plus additional charges and fees. In its answer, two of I SG's allirmative defenses contend that plaintiff terminated the agreement, itaccepted defendant's surrender of the premises and took actions that had the effect of preventing defendant from returning to the space. Plaintiff BSD moves here to dismiss these two, along with the other allirmative defenses, which are, by and large, standard. For example, the third affirmative defense states that plaintiff s claim is barred by the "equitable doctrines of release, accord and satisfaction, res judicata, collateral hands" estoppel, laches, estoppel, acquiescence, waiver, ratification and/or unclean (document 3, p 3), Defendant LSG's memorandum of law argues that "One need not look beyond the 'wherefore' clause in the Complaint which requests that this Court award Plaintiff 'such other proper,"' relief as the Court deems just and adding that this includes equitable relief (document 26, p 8).. This Court finds that we would have to look beyond the wherefore clause; these affirmative defenses are struck. To the extent that they depend upon the email exchange of May 20 and May 24, 2019, see below. 83 of of 10 e FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/16/2020 07/06/2020 04:26 02 : 50 PM PM| INDEX INDEX NO. NO. 654078/2019 654078/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 36 35 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/16/2020 07/06/2020 In itsfourth affirmative defense, defendant contends that any damages should be barred or reduced for failure to mitigate, one of a landlord's options from Holy Properties Ltd v citmg Kenneth Cole Productions, 87 NY2d 130, 133-134: "When defendant abandoned these premises prior to expiration of the lease, the landlord had three options: (1) itcould do nothing and collect "' the full rent due under the lease Defendant LSG argues that what itdescribed as a "gut renovation" do.nothing." is at odds with "it could This Court disagrees; defendant supplies no support for its interpretation. Moreover, the second sentence of Article.26.(c) provides that "The failure of Landlord to re-let the Premises or any part or parts thereof shall not release or affect damages." Tenant's liability fbr Defendant's memorandum argues that BSD 80 Broad has breached article 25(1) of the lease by failing to provide itwith a notice of default and an opportunity to cure, which under article 26 is a condition precedent for holding defendant to future rent after the premises is surrendered. Paragraph of article 25 covers defaults for other than non-payment - - violation of (1) desertion, non-monetary covenants and bankruptcy. What occurred here was not a desertion, which describes a situation when a tenant vacates or abandons the premises, but remains.in possession. In that case, the landlord does owe the tenant notice and an opportunity to cure. Defendant submits the affidavit of Gary Markham, president of LSG, which attaches his February 25, 2019 letter to plaintiff; "Pursuant to the Good Guy Guaranty related to the above lease, LSG US LLC is hereby providmg you with 90 days written notice to surrender the space, 25"' same" effective today, February 2019. Please acknowledge (document 24). The good guy guaranty covered Mr. IVlarkham's obligation as guarantor, and plaintiff does not dispute that Markham's obligation thereunder has ceased. Mr. Markham's affidavit further states. that LSG moved out of 80 Broad on about May 1, and shortly thereafter plaintiff began a gut renovation and disposed of a smart board and projector that belonged to LSG. "Based on " PlaintBPs actions throughout my move and my communications with Plaintiff's representatives Markham concluded that plaintiff 80 Broad had agreed that defendant LSG was no longer obligated for rent or other payments per the lease (document 22, 18). Defendant's president states.that plaintiff acknowledged the termination of the lease to him verbally.and in writing- He relies upon the email exchange of May 20 and May 24, 2019 (document 25). The first email was Markham's to the landlord, which contained the subject statement;" heading of "June Rent Markham's text read that the good guy warranty was activated Februarf 25, with a 90-day limit, that LSG has vacated and that "no further rent payments shall be forthcoming as LSG has no funds or assets to cover these funds. This has been in.person." explained to your management in writing and The othertwo options are that:"(2) itcould accept the tenant'ssurrender, reenterthe premises and relet them foritsown account thereby releasingthe tenant from further for liability rent, or(3) it couldnotify the tenant benefit." thatitwas entering and relettingthe premises for thetenant's 2 95 of of 10 5 FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/16/2020 07/06/2020 04:26 02:50 PM PM| INDEX INDEX NO. NO. 654078/2019 654078/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 36 35 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/16/2020 07/06/2020 statement," On.May 24, 2019, Danielle: Purdy of BSD responded "Please disregard the June rent and she noted that some things had been left in the LSG suite and asked when they would be removed. David Israni is the senior managing director of Broad Street Development which manages plaintiff BSD 80 Broad. In his affidavit of January 23,.2020, he explains that Danielle Purdy, a former BSD employee, was at the time, a "low-level Assistant Property Manager with no Plaintiff" knowledge of plaintiff's legal position concerning Defendant and no authority to bind (document 28, ¶ 14). The authority of an employee to bind her employer can be a question for the trier of fact (see PJl 2:235), Ms. Purdy's email is.insufficient to raise a question of fact in view of: 1) Plaintiff s continuing to invoice defendant for its financial obligations under the lease; monthly invoices, dated from June 1, 2019 through.January 1, 2020,.have been submitted (document31); 2) Article 43 (a) of the lease provides that "No agreement shall be effective to change, modify, waive, release, discharge, terminate or effect an abandonment of this Lease, in whole or in part, unless such agreement is in writing, expressly refers to this Lease and is signed by the party against whom enforcement 0.fthe change, modification [etc] is sought (document.23); and 3) BSD's February 28, 2019 letter to Mr. Markham, which reads in part: "We are in receipt of Tenant's letter dated February 25, 2019, advising that Tenant will be vacating the Premises, notwithstanding that the Lease does not expire until September 30, 2021. Please be advised that Tenant's purported surrender is not deemed a termination of the Lease and is without prejudice to any and all rights the Landlord may have pursuant to the Lease, including . .. the payment of ." rent and additional rent through the balance of the Lease term . , (document 14). The foregoing discussion of the contract terms and the email exchange contprehends the second (documentary evidence), fifth(condition precedent), sixth (plaintiff's or third party actions), and seventh (breach of contract) affirmative defenses, which are also not viable. 4 -% -* NOW therefore, in view of the foregoing, defendants' IT IS ORDERED, that plaintiff s motion to dismiss affirmative defenses is granted in its entirety. ENTER July 6, 2020 Alan C. Marin J.S.C. 3 10e of of 10 e