On July 17, 2019 a
Motion-Secondary
was filed
involving a dispute between
101 East 16Th Realty Llc,
and
Iris Keltz,
Nat Hirshman,
Union Square Restaurant Llc,
Union Square Restaurant Llc D B A Moaz,
for Commercial - Contract
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 11/19/2019 09:29 PM INDEX NO. 654090/2019
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 11/19/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART: INITIAL MOTION SUBMISSION PART
____________________________________-----------------------------------------X
16™
101 EAST STREET REALTY LLC, IndeX No.: 0654090/19
Plaintiff, AFFIRMATION IN SUPPORT
- against -
UNION SQUARE RESTAURANT LLC, d/b/a MOAZ,
IRIS KELTZ and NAT HIRSCHMAN,
Defendants.
----___________.._______________----------¬----------------------------------X
JOHN WESLEY VERAJA, an attorney duly admitted to practice law
before all of the Courts of the State of New York, affirms the truth of the following
pursuant to CPLR 2106:
1. I am the attorney for the Defendants in the instant action and I am fully
familiar with the facts and circumstances heretofore had herein and as hereinafter
stated.
Defendants'
2. I submit this affirmation in support of the instant notice of
motion which seeks an order of the Court: 1) granting the Defendants summary
judgment to the extent that this action is dismissed as against all of the Defendants; and
2) for such other and further relief as this Court may deem just, proper and equitable.
3. For all of the reasons set forth hereinbelow, itis respectfully submitted that
Defendants'
the instant motion should be granted.
BACKGROUND
4. The instant action involves parties alleged to have entered into a lease
agreement for property alleged to be in New York County.
\\WVSVR011SHARENCLIENT\UNION
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5. The Summons and Complaint are annexed hereto as Exhibit "A".
Defendants'
6. The Answer is annexed hereto as Exhibit "B".
THE DEFENDANTS SHOULD BE GRANTED SUMMARY JUDGMENT
7. The Defendants are entitled to summary judgment in this action to the
extent that this action should be dismissed as itapplies to all of the Defendants.
8. The Plaintiff did not file an affidavit of service of the Summons and
Complaint in this action for any Defendant other than Iris Keltz.
9. I respectfully submit that no affidavit of service was filed for the other two
Defendants because the other two Defendants were upon information and belief and
the advice of my clients, not served.
10. The Court therefore lacks personal jurisdiction over the Defendants, Union
Square Restaurant LLC, d/b/a Moaz and Nat Hirschman.
11. The Court cannot obtain jurisdiction over three Defendants in an action
based upon a single affidavit of service which a!!eges service upon only one of the
Defendants.
12. Without personal jurisdiction over the two aforementioned Defendants, the
Defendants'
Court cannot proceed in this action against them. Accordingly, the instant
motion should be granted to the extent that this action should be dismissed for lack of
personal jurisdiction as against the Defendants, Union Square Restaurant LLC, d/b/a
Moaz and Nat Hirschman.
SQUARERESTAURANT
\\WVSVR01\SHARE\CLIENT\UNION LLC\101V UNIONSQUARE-NOM4FOR
SUMMARY JUDGMENTJ[10102019]-DOCX
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THERE IS NO MERITORIOUS CLAIM AGAINST IRIS
KELTZ AND THEFORE THE INSTANT ACTION
SHOULD BE DISMISSED AS AGAINST IRIS KELTZ
13. The Defendant, Iris Keltz upon informatioñ and belief and the advice of Iris
Keltz, never signed a guaranty of the alleged lease referenced in this action.
14. The Defendant, Iris Keltz is not alleged by the Plaintiff to have been a
party to the alleged lease.
15. If Iris Keltz is not a party to the alleged lease and she did not execute a
guaranty of the alleged lease then the complaint in this action against Iris Keltz fails to
allege a meritorious claim.
Defendants'
16. Accordingly, the instant motion for summary judgment should
be granted to the extent of dismissing the instant action as against Iris Keltz.
16™
101 EAST STREET REALTY LLC IS NOT AN ENTITY
REGISTERED WITH THE NEW YORK STATE SECRETARY OF
DEFENDANTS'
STATE AND THEREFORE MOTION SHOULD BE GRANTED
17. I searched the New York State Secretary of State, Division of
Corporations for the Plaintiff. According to the New York State Secretary of State,
16th
Division of Corporations, no business entities named 101 East Street Realty LLC
have registered with the New York State Secretary of State.
16th
18. I respectfully submit that if 101 East street Realty LLC is not
registered with the Secretary of State, then it is not an entity that is cognizable at law
and therefore lacks the requisite standing to initiate and sustain this action.
"C"
19. Annexed hereto as Exhibit is a printout from my search on the
Secretary of State website which confirms that the Plaintiff is not registered with the
New York Secretary of State.
\\WVSVR01\SHARETCLIENT\UNION
SQUARERESTAURANT SUMMARY
LLC\101V UNIONSQUARE-NOM-[FOR JUDGMENT][10102019},DOCX
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Defeñdañts'
20. Accordingly, the instant motion should be granted and the
instant action should be dismissed.
16™
101 EAST STREET REALTY LLC IS NOT
16™
THE OWNER OF 101 EAST STREET IN
NEW YORK COUNTY AND THEREFORE THE
INSTANT MOTION SHOULD BE GRANTED
"2"
21. Paragraph of the verified complaint states as follows:
"That at all times mentioned herein the Plaintiff was
and stillis the owner of the premises known as 101
16th
East Street, in the County, City and State of
New York (hereinafter referred to as the
"Premises")."
"D"
22. Annexed hereto as Exhibit is a copy of the last deed recorded on
16th
ACRIS for the subject premises. Itindicates that an entity other than 101 East
Street Realty LLC is the owner of 101 East
16th
Rean a
23. Plaintiff is not entitled to any relief in the instant action because of the
false allegation that the Plaintiff is the owner of the subject premises. The instant action
cannot survive the instant motion and itshould therefore be dismissed.
CONCLUSION
Defendants'
24. It is respectfully submitted that the iñstâñt motion should be
granted in its entirety.
25. The instant action should be dismissed as against all of the Defendants.
26. Two of the Defendants were not served in this action and therefore the
Court lacks personal jurisdiction over them.
27. Iris Keltz is neither a party to nor a guarantor of a lease with the Plaintiff.
Accordingly, no cause of action in this action can lie against her.
\\WVSVR01tSHARE\CLIENT\UNION
SQUARERESTAURANT LLC\101V UNIONSQUARE-NOM-[FOR
SUMMARY JUDGMENT](10102019].DOCX
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28. An alleged domestic entity not registered with the New York State
Secretary of State has no standing to initiate the instant action. The Plaintiff is not
registered with the New York State Secretary of State nor is the Plaintiff alleged to be a
foreign entity. The Plaintiff therefore cannot proceed in this action.
29. Plaintiff is not the owner of the subject premises. Hence the premise upon
which the instant action is based is undermined and subjects this action to dismissal.
WHEREFORE, your Affirmant respectfully requests that this Court grant
Defendants'
the instant motion in all respects together with such other and further relief
as this Court may deem just, proper and equitable.
Dated: New York, New York
November 19, 2019
JOHN EY VERAJA
SQUARERESTAURANT
\\WVSVR011SHAREtCLIENT\UNION V UNIONSOUARE-NOM-[FOR
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Document Filed Date
November 19, 2019
Case Filing Date
July 17, 2019
Category
Commercial - Contract
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FILED: NEW YORK COUNTY CLERK 11/19/2019 09:29 PM INDEX NO. 654090/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 11/19/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART: INITIAL MOTION SUBMISSION PART ____________________________________-----------------------------------------X 16™ 101 EAST STREET REALTY LLC, IndeX No.: 0654090/19 Plaintiff, AFFIRMATION IN SUPPORT - against - UNION SQUARE RESTAURANT LLC, d/b/a MOAZ, IRIS KELTZ and NAT HIRSCHMAN, Defendants. ----___________.._______________----------¬----------------------------------X JOHN WESLEY VERAJA, an attorney duly admitted to practice law before all of the Courts of the State of New York, affirms the truth of the following pursuant to CPLR 2106: 1. I am the attorney for the Defendants in the instant action and I am fully familiar with the facts and circumstances heretofore had herein and as hereinafter stated. Defendants' 2. I submit this affirmation in support of the instant notice of motion which seeks an order of the Court: 1) granting the Defendants summary judgment to the extent that this action is dismissed as against all of the Defendants; and 2) for such other and further relief as this Court may deem just, proper and equitable. 3. For all of the reasons set forth hereinbelow, itis respectfully submitted that Defendants' the instant motion should be granted. BACKGROUND 4. The instant action involves parties alleged to have entered into a lease agreement for property alleged to be in New York County. \\WVSVR011SHARENCLIENT\UNION SQUARERESTAURANT LLC\101V UNIONSQUARE-NOM-[FOR SUMMARY JUDGMENT][10102019J.DOCX 1 of 5 FILED: NEW YORK COUNTY CLERK 11/19/2019 09:29 PM INDEX NO. 654090/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 11/19/2019 5. The Summons and Complaint are annexed hereto as Exhibit "A". Defendants' 6. The Answer is annexed hereto as Exhibit "B". THE DEFENDANTS SHOULD BE GRANTED SUMMARY JUDGMENT 7. The Defendants are entitled to summary judgment in this action to the extent that this action should be dismissed as itapplies to all of the Defendants. 8. The Plaintiff did not file an affidavit of service of the Summons and Complaint in this action for any Defendant other than Iris Keltz. 9. I respectfully submit that no affidavit of service was filed for the other two Defendants because the other two Defendants were upon information and belief and the advice of my clients, not served. 10. The Court therefore lacks personal jurisdiction over the Defendants, Union Square Restaurant LLC, d/b/a Moaz and Nat Hirschman. 11. The Court cannot obtain jurisdiction over three Defendants in an action based upon a single affidavit of service which a!!eges service upon only one of the Defendants. 12. Without personal jurisdiction over the two aforementioned Defendants, the Defendants' Court cannot proceed in this action against them. Accordingly, the instant motion should be granted to the extent that this action should be dismissed for lack of personal jurisdiction as against the Defendants, Union Square Restaurant LLC, d/b/a Moaz and Nat Hirschman. SQUARERESTAURANT \\WVSVR01\SHARE\CLIENT\UNION LLC\101V UNIONSQUARE-NOM4FOR SUMMARY JUDGMENTJ[10102019]-DOCX 2 of 5 FILED: NEW YORK COUNTY CLERK 11/19/2019 09:29 PM INDEX NO. 654090/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 11/19/2019 THERE IS NO MERITORIOUS CLAIM AGAINST IRIS KELTZ AND THEFORE THE INSTANT ACTION SHOULD BE DISMISSED AS AGAINST IRIS KELTZ 13. The Defendant, Iris Keltz upon informatioñ and belief and the advice of Iris Keltz, never signed a guaranty of the alleged lease referenced in this action. 14. The Defendant, Iris Keltz is not alleged by the Plaintiff to have been a party to the alleged lease. 15. If Iris Keltz is not a party to the alleged lease and she did not execute a guaranty of the alleged lease then the complaint in this action against Iris Keltz fails to allege a meritorious claim. Defendants' 16. Accordingly, the instant motion for summary judgment should be granted to the extent of dismissing the instant action as against Iris Keltz. 16™ 101 EAST STREET REALTY LLC IS NOT AN ENTITY REGISTERED WITH THE NEW YORK STATE SECRETARY OF DEFENDANTS' STATE AND THEREFORE MOTION SHOULD BE GRANTED 17. I searched the New York State Secretary of State, Division of Corporations for the Plaintiff. According to the New York State Secretary of State, 16th Division of Corporations, no business entities named 101 East Street Realty LLC have registered with the New York State Secretary of State. 16th 18. I respectfully submit that if 101 East street Realty LLC is not registered with the Secretary of State, then it is not an entity that is cognizable at law and therefore lacks the requisite standing to initiate and sustain this action. "C" 19. Annexed hereto as Exhibit is a printout from my search on the Secretary of State website which confirms that the Plaintiff is not registered with the New York Secretary of State. \\WVSVR01\SHARETCLIENT\UNION SQUARERESTAURANT SUMMARY LLC\101V UNIONSQUARE-NOM-[FOR JUDGMENT][10102019},DOCX 3 of 5 FILED: NEW YORK COUNTY CLERK 11/19/2019 09:29 PM INDEX NO. 654090/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 11/19/2019 Defeñdañts' 20. Accordingly, the instant motion should be granted and the instant action should be dismissed. 16™ 101 EAST STREET REALTY LLC IS NOT 16™ THE OWNER OF 101 EAST STREET IN NEW YORK COUNTY AND THEREFORE THE INSTANT MOTION SHOULD BE GRANTED "2" 21. Paragraph of the verified complaint states as follows: "That at all times mentioned herein the Plaintiff was and stillis the owner of the premises known as 101 16th East Street, in the County, City and State of New York (hereinafter referred to as the "Premises")." "D" 22. Annexed hereto as Exhibit is a copy of the last deed recorded on 16th ACRIS for the subject premises. Itindicates that an entity other than 101 East Street Realty LLC is the owner of 101 East 16th Rean a 23. Plaintiff is not entitled to any relief in the instant action because of the false allegation that the Plaintiff is the owner of the subject premises. The instant action cannot survive the instant motion and itshould therefore be dismissed. CONCLUSION Defendants' 24. It is respectfully submitted that the iñstâñt motion should be granted in its entirety. 25. The instant action should be dismissed as against all of the Defendants. 26. Two of the Defendants were not served in this action and therefore the Court lacks personal jurisdiction over them. 27. Iris Keltz is neither a party to nor a guarantor of a lease with the Plaintiff. Accordingly, no cause of action in this action can lie against her. \\WVSVR01tSHARE\CLIENT\UNION SQUARERESTAURANT LLC\101V UNIONSQUARE-NOM-[FOR SUMMARY JUDGMENT](10102019].DOCX 4 of 5 FILED: NEW YORK COUNTY CLERK 11/19/2019 09:29 PM INDEX NO. 654090/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 11/19/2019 28. An alleged domestic entity not registered with the New York State Secretary of State has no standing to initiate the instant action. The Plaintiff is not registered with the New York State Secretary of State nor is the Plaintiff alleged to be a foreign entity. The Plaintiff therefore cannot proceed in this action. 29. Plaintiff is not the owner of the subject premises. Hence the premise upon which the instant action is based is undermined and subjects this action to dismissal. WHEREFORE, your Affirmant respectfully requests that this Court grant Defendants' the instant motion in all respects together with such other and further relief as this Court may deem just, proper and equitable. Dated: New York, New York November 19, 2019 JOHN EY VERAJA SQUARERESTAURANT \\WVSVR011SHAREtCLIENT\UNION V UNIONSOUARE-NOM-[FOR LLCN101 SUMMARY JUDGMENT][101020191-DOCX 5 of 5