Complaint,Petition: Jeffrey Luellen v. Flower City Arts Center, Inc. And Cheryl Mckeiver

On September 02, 2021 a Complaint,Petition was filed involving a dispute between Jeffrey Luellen, and Flower City Arts Center, Inc. And Cheryl Mckeiver, for Commercial - Contract in the District Court of Monroe County.

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FILED: MONROE COUNTY CLERK 09/02/2021 02:37 PM INDEX NO. E2021008188
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MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.

Receipt # 2830489

Book Page CIVIL

Return To: No. Pages: 25
KELLY SCHAEFER FOSS
99 Garnsey Road Instrument: EFILING INDEX NUMBER
Pittsford, NY 14534
Control #: 202109020847
Index #: E2021008188

Date: 09/02/2021

LUELLEN, JEFFREY Time: 2:50:17 PM

FLOWER CITY ARTS CENTER, INC. AND CHERYL
MCKEIVER

State Fee Index Number $165.00
County Fee Index Number $26.00
State Fee Cultural Education $14.25
State Fee Records $4.75 Employee: CW
Management

Total Fees Paid: $210.00

State of New York

MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.

JAMIE ROMEO

MONROE COUNTY CLERK

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STATE OF NEW YORK
SUPREME COURT COUNTY OF MONROE

Plaintiff designates the
JEFFREY LUELLEN, County of Monroe as the
place of trial.
Plaintiff,
SUMMONS
vs.
Index No.:

FLOWER CITY ARTS CENTER, INC. The basis of the venue
AND CHERYL MCKEIVER, designated is the parties’
place of residence.
Defendants.

YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a

copy of your answer on the plaintiff's attorney within twenty (20) days after the service of this

summons, exclusive of the day of service (or within 30 days after the service is complete if this

summons is not personally delivered to you within the State of New York); and in case of your failure

to answer, judgment will be taken against you by default for the relief demanded in the complaint.

Dated: September 2, 2021

HARRIS BEACH PLLC

Kelly S. Foss, Esq.
Anna M. Patton
Attorneys for Plaintiff
99 Garnsey Road
Pittsford, New York 14534
T: (585) 419-8800
F: (585) 419-8817
kfoss@harrisbeach.com
apatton@harrisbeach.com
Attorneys for Plaintiff Jeffrey Luellen

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TO: Flower City Arts Center, Inc.
Cheryl McKeiver
713 Monroe Avenue
Rochester, New York 14607

2
412396\4825-5892-1209\ v1

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
_____________________________________________

JEFFREY LUELLEN

Plaintiff,

v. COMPLAINT
Index No.

FLOWER CITY ARTS CENTER, INC. AND
CHERYL MCKEIVER,

Defendants.
_____________________________________________

Plaintiff Jeffrey Luellen (“Mr. Luellen”) for his complaint against defendants Flower City

Arts Center, Inc. (“FCAC”) and its Executive Director Cheryl McKeiver (“Ms. McKeiver”), states

as follows:

NATURE OF THE ACTION

1. Mr. Luellen brings this action for false arrest/imprisonment, malicious prosecution,

constructive eviction, and breach of contract.

2. FCAC is a community arts center, which among other things leases out space and

access to a ceramics studio and equipment (the “Ceramics Studio”). Renters lease the Ceramics

Studio so that they may come and go, using the space and equipment to sculpt clay, use the kilns,

and store their works-in-progress on individualized shelf space.

3. Since approximately 2017, Mr. Luellen has sculpted clay art pieces at the Ceramics

Studio.

4. Mr. Luellen and FCAC entered into a Rental Agreement, a copy of which is

attached as Exhibit “A”, pursuant to which Mr. Luellen agreed to pay monthly rent in exchange

for the right to access and use the Ceramics Studio.

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5. FCAC was the sole drafter of the Rental Agreement. Mr. Luellen did not

participate in drafting any of the language in the agreement.

6. Mr. Luellen has substantially performed his obligations under the Rental

Agreement, including making each and every monthly rental payment since the commencement

of the lease in 2017.

7. FCAC accepted each and every rent payment when made.

8. Recently, it has become clear that some of FCAC’s staff members, including

Ms. McKeiver, dislike Mr. Luellen due to personal and political disagreements.

9. Despite the terms of the Rental Agreement, and despite having accepted

Mr. Luellen’s rent payments when made, FCAC and Ms. McKeiver have recently forcefully and

without justification excluded Mr. Luellen from the rented premises.

10. Because of their personal dislike of Mr. Luellen, FCAC and Ms. McKeiver have

fabricated fake justifications for denying him access to the premises.

11. For example, FCAC and Ms. McKeiver have claimed that FCAC had a right to

immediately terminate the Rental Agreement due to Mr. Luellen’s failure to cover his face while

inside the facility.

12. Mr. Luellen’s Rental Agreement does not contain any face covering requirement.

13. Nor does the Rental Agreement purport to allow FCAC as the landlord to terminate

the lease on such a basis.

14. At no time did the parties amend the Rental Agreement to require Mr. Luellen to

cover his face.

15. Mr. Luellen feels extremely uncomfortable wearing a cover over his nose and

mouth. He strongly believes that mandating face coverings is tyrannical and contrary to the basic

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American principles of freedom and liberty. He also finds that when wearing a face covering, he

experiences difficulty breathing and is aware of a risk of significant side effects. Mr. Luellen

particularly objects to wearing a mask that does not serve a purpose.

16. Mr. Luellen never anticipated that his lease for the Ceramics Studio could be

terminated on the basis of his failure to comply with an entirely unscientific mandate. He feels

compelled to point out the paucity of clinical data supporting mask mandates, as well as to point

out the contrary evidence demonstrating significant harms associated with mask use.1

17. Mr. Luellen also feels compelled to point to the scientific data demonstrating the

ineffectiveness of face coverings (especially cloth face covers) in preventing infection from

exceedingly small droplets and particles expelled through mere human breath in aerosol form.2

1
See Guerra, Damian D., “Mask Mandate and Use Efficacy in State-Level COVID-19 Containment” (May 25, 2021),
https://www.medrxiv.org/content/10.1101/2021.05.18.21257385v1.full-text. A fullstudy of the impact of mask
mandates led to the following conclusions, which notably were contrary to the authors’ original hypothesis: “Our
main finding is that mask mandates and use are not associated with lower SARS-CoV-2 spread”, and “[o]ur findings
do not support the hypothesis that SARS-CoV-2 transmission rates decrease with greater public mask use” (id.). The
study additionally noted as follows: “Masks may promote social cohesion as rallying symbols during a pandemic
[31], but risk compensation can also occur [32]. Prolonged mask use (>4 hours per day) promotes facial alkalinization
and inadvertently encourages dehydration, which in turn can enhance barrier breakdown and bacterial infection risk
[33]. British clinicians have reported masks to increase headaches and sweating and decrease cognitive precision [34].
Survey bias notwithstanding, these sequelae are associated with medical errors [35]. By obscuring nonverbal
communication, masks interfere with social learning in children [36]. Likewise, masks can distort verbal speech and
remove visual cues to the detriment of individuals with hearing loss; clear face-shields improve visual integration, but
there is a corresponding loss of sound quality [37, 38]. Future research is necessary to better understand the risks of
long-term daily mask use [30].” See also Jacobs, Joshua L., “Use of surgical face masks to reduce the incidence of
the common cold among health care workers in Japan: a randomized controlled trial” (June 2009),
https://pubmed.ncbi.nlm.nih.gov/19216002/ (“subjects in the mask group were significantly more likely to experience
headache during the study period”).
2
MacIntyre, C. Raina, “A cluster randomised trialof cloth masks compared with medical masks in healthcare
workers” (April 22, 2015), https://pubmed.ncbi.nlm.nih.gov/25903751/ (contrary to authors’ hypothesis, cloth masks
were significantly less effective than surgical masks at preventing clinical respiratory illness, the flu, and respiratory
virus infection, in that they kept out only 3% of particles, allowing 97% penetration). The blue chip approach in
clinical research is the Randomized Controlled Trial (“RCT”). In its “Science Brief”, the CDC provides a matrix of
15 studies, not one of which is a RCT. There have been 14 RCTs testing the effectiveness of surgical masks (as
opposed to the masks typically used by people) in reducing the transmission of respiratory viruses. See, e.g.,
Bundgaard, Henning, “Effectiveness of Adding a Mask Recommendation to Other Public Health Measures to Prevent
SARS-CoV-2 Infection in Danish Mask Wearers: A Randomized Controlled Trial” (Nov. 18, 2020),
https://pubmed.ncbi.nlm.nih.gov/33205991/ (finding no statistically-significant difference in recommending use of
surgical masks to supplement other public health measures); “Surgical Mask To Prevent Influenza Transmission In
Households, A Cluster Randomized Trial”, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2984432/ (“we did not
identify any trend in the results suggesting the effectiveness of facemasks.”]; Jacobs, Joshua L., “Use of surgical face
masks to reduce the incidence of the common cold among health care workers in Japan: a randomized controlled trial”

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18. Further, FCAC’s alleged mask mandate serves no purpose given that, upon

information and belief, every single adult who enters FCAC’s facility has had the opportunity and

choice as to whether to protect himself or herself by either receiving a vaccination and/or wearing

a KN95 mask.

19. United States Center for Disease Control data conclusively demonstrates that

vaccination dramatically reduces risk of hospitalization or death, which is why Mr. Luellen chose

to have himself vaccinated:

[Statistical chart appears on next page]

(June 2009), https://pubmed.ncbi.nlm.nih.gov/19216002/ (“Conclusion: Face mask use in health care workers has not
been demonstrated to provide benefit in terms of cold symptoms or getting colds.”); Cowling, Benjamin J.,
“Facemasks and Hand Hygiene To Prevent Influenza in Households: A Cluster Randomized Trial” (Oct. 6, 2009),
https://www.acpjournals.org/doi/full/10.7326/0003-4819-151-7-200910060-00142 (CDC-sponsored double-blind
study in 2009 revealed that hands hygiene intervention generally did better than the surgical mask plus hands hygiene
intervention); “Use of surgical face masks to reduce the incidence of common cold among health care workers in
Japan: a randomized controlled trial”, https://pubmed.ncbi.nlm.nih.gov/19216002/ (“Conclusion: Face mask use in
health care workers has not been demonstrated to provide benefit in terms of cold symptoms or getting colds”, but
also noting, “subjects in the mask group were significantly more likely to experience headache during the study
period”). Notably, these studies all involved surgical masks, which presumably would have been more effective than
cloth masks.

The state of the science of mask effectiveness clearly supported Dr. Fauci’s February 5, 2020 email response to the
Secretary of Health and Human Services’s question as to whether mask use is warranted, wherein he stated: “The
typical mask you buy in the drug store is not really effective in keeping out virus, which is small enough to pass
through the material. It might, however, provide some slight benefit in keep out gross droplets if someone coughs or
sneezes on you. I do not recommend you wear a mask.”

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Dayaratna, Kevin, “A Statistical Analysis of COVID-19 Breakthrough Infections and Deaths”

(August 12, 2021), The Heritage Foundation, https://www.heritage.org/public-

health/report/statistical-analysis-covid-19-breakthrough-infections-and-deaths, Chart 4.

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20. Accordingly, FCAC’s attempt to unilaterally amend Mr. Luellen’s Rental

Agreement to allow for termination for failure to wear a mask, besides being legally unsupportable,

is factually without foundation.

21. In fact, based upon the CDC statistics above, imposing a mask mandate to prevent

COVID-19 deaths is analogous to imposing a prohibition on solid foods to prevent death by

choking. It is actually even worse than the choking analogy because, whereas eating pureed food

would in fact prevent choking, as noted above, the body of randomized controlled clinical trial

data overwhelmingly demonstrates that wearing a cloth or surgical mask makes no statistically-

significant difference in preventing COVID-19 infection.

22. As another example, FCAC and Ms. McKeiver have falsely accused Mr. Luellen

of putting children’s lives at great risk due to his failure to strap a piece of cloth over his face.

23. As noted, Defendants’ position on alleged required face covering finds no support

whatsoever in the Rental Agreement, which governs the terms of Mr. Luellen’s right to enter the

Ceramics Studio.

24. Further, Mr. Luellen also feels compelled to point out that FCAC’s position is

completely unsupported by even a scintilla of scientific data. To the contrary, data publicized on

the website for the United States Center for Disease Control reflects that COVID-19 poses no

statistically-significant threat to children’s lives compared to the flu and pneumonia.3

25. As another example, FCAC and Ms. McKeiver have falsely stated that FCAC had

a right to immediately terminate the Rental Agreement on the basis that Mr. Luellen had entered

the Ceramics Studio while a class was in session.

3
https://www.cdc.gov/nchs/nvss/vsrr/covid_weekly/index.htm#SexAndAge (reflecting that of the approximately 75
million children in the United States, 385 children have died with COVID-19 since the start of the pandemic in 2020
(.000005%), compared with 887 children who have died with pneumonia and 188 who have died with the flu over
that same time period).

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26. The Rental Agreement does not create any requirement to stay out of the Ceramics

Studio during classes.

27. Nor does it purport to allow FCAC as the landlord to terminate a lease on such a

basis.

28. At no time did the parties amend the Rental Agreement to require Mr. Luellen to

stay out of the Ceramics Studio during class sessions.

29. Moreover, as FCAC and Ms. McKeiver well know, renters often share and utilize

the Ceramics Studio at the same time. The Ceramics Studio has multiple work areas to

accommodate multiple users.

30. FCAC and Ms. McKeiver have never before sought to exclude Mr. Luellen from

the Ceramics Studio on the basis that some participants were simultaneously present and receiving

instruction from a teacher.

31. Mr. Luellen’s counsel wrote to Ms. McKeiver and FCAC to set forth Mr. Luellen’s

rights to access the premises, and to solicit any evidence that would alter Mr. Luellen’s analysis.

In response, FCAC and Ms. McKeiver produced absolutely no evidence to justify their position,

and instead merely repeated their desire to keep Mr. Luellen out of the facility he has rented.

32. Without any legal justification for doing so, FCAC and Ms. McKeiver twice called

the police on Mr. Luellen, and falsely stated he was trespassing on the rented property. FCAC and

Ms. McKeiver had Mr. Luellen forcibly removed, arrested, detained, and criminally prosecuted

despite knowing that Mr. Luellen was accessing the Ceramics Studio pursuant to his Rental

Agreement.

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33. Notably, less than one week after having Mr. Luellen arrested, FCAC sent

Mr. Luellen an electronic invoice for his rent payment owed for the month of September 2021 for

the Ceramics Studio.

34. Mr. Luellen paid the invoice in full.

35. FCAC accepted Mr. Luellen’s September rent payment, issuing him a receipt.

36. FCAC and Ms. McKeiver know full well they had and have absolutely no basis to

claim that Mr. Luellen was a criminal trespasser.

37. FCAC’s solicitation and acceptance of rent for September is an unequivocal

acknowledgement that Mr. Luellen remains a lessee of the Ceramics Studio.

38. Notwithstanding FCAC’s own acknowledgement that Mr. Luellen’s lease remains

in force, FCAC and Ms. McKeiver have refused to drop the criminal trespass charges.

PARTIES

39. Mr. Luellen is an individual residing at 3 Reitz Circle, Pittsford, New York 14534.

40. Upon information and belief, FCAC is a domestic not-for-profit corporation that

owns a community art center located at 713 Monroe Avenue, Rochester, New York 14607.

41. Upon information and belief, Ms. McKeiver is an individual residing in Monroe

County, New York.

JURISDICTION AND VENUE

42. The Court has jurisdiction over this matter and FCAC under CPLR 301 because

FCAC was a domiciliary of the State of New York and Ms. McKeiver was a resident of the State

of New York during all relevant time periods.

43. Venue for this matter is properly in Monroe County under CPLR 503(a) because

the parties reside in Monroe County and the events giving rise to the action occurred in Monroe

County.

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FACTUAL BACKGROUND

A. The Rental Agreement

44. Mr. Luellen is an amateur ceramicist. Specifically, he enjoys working with high fire

cone 10 clay, which must be fired in an extremely high-temperature kiln operated on natural gas.

Upon information and belief, FCAC has the only studio in the area that owns and permits use of

this type of kiln to studio tenants.

45. On November 14, 2017, Mr. Luellen and FCAC entered into the Rental Agreement,

which required Mr. Luellen to pay monthly rent in exchange for the right to use the Ceramics

Studio and equipment, and to store his ceramic pieces on shelf no. 61.

46. The Rental Agreement does not include a termination date. It therefore constitutes

a lease for an indefinite term.

47. The Rental Agreement does not include any provision allowing either party to

unilaterally terminate the agreement.

48. Accordingly, either party may terminate the agreement, but only upon reasonable

notice to the opposite party.

49. The Rental Agreement requires Mr. Luellen to pay rent, lock the doors and

windows if Mr. Luellen is the last person in the Ceramics Studio, and refrain from bringing dogs

to the Ceramics Studio, and comply with the list of safe studio practices for minimizing dust.

50. After the parties executed the Rental Agreement, FCAC granted Mr. Luellen access

to the Studio by providing him with his own key.

51. Over the last three and a half years that the lease has been in force, Mr. Luellen has

timely paid rent each month, and FCAC accepted each and every one of his rent payments.

52. Upon information and belief, the Rental Agreement’s terms at issue were never

modified.

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53. FCAC has never provided Mr. Luellen with advance notice of termination of the

Rental Agreement.

54. FCAC has never initiated any eviction proceedings against Mr. Luellen.

B. Defendants First Attempt to Exclude Mr. Leullen from the Ceramics Studio.

55. Mr. Luellen and several members of FCAC’s staff began to have personal and

political disagreements. It became quite apparent that various members of FCAC’s staff, including

FCAC’s Executive Director Ms. McKeiver, grew to strongly dislike Mr. Luellen.

56. Despite such disagreements, until August 1, 2021, both parties continued to comply

with the terms of the Rental Agreement—i.e., Mr. Luellen continued paying rent and using the

space, and FCAC continued accepting rent payments and allowing Mr. Luellen to access the rented

space.

57. The disagreements between Mr. Luellen and FCAC’s staff culminated in an

argument on August 1, 2021. On that date, Mr. Luellen entered the rental space to work on his

pieces, as usual.

58. One of FCAC’s staff members then approached Mr. Luellen to request that he strap

a piece of cloth over his face. A disagreement ensued, with a staff member of FCAC insisting that

Mr. Luellen cover his face or leave the facility.

59. Mr. Luellen insisted that as a lessee, he was entitled to be present in the Ceramics

Studio, and that FCAC’s demands upon him were inconsistent with the terms of his Rental

Agreement.

60. Ultimately, FCAC’s staff stated that they were calling the police. The police did

not arrive before Mr. Luellen finished his work and left the premises.

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61. After the August 1 confrontation with FCAC’s staff, during which FCAC sought to

unlawfully exclude Mr. Luellen from the studio space he had rented, Mr. Luellen decided to wear

a body camera in order to protect himself against unlawful actions.

62. At no time after the August 1 encounter did Mr. Luellen receive any notifications

from FCAC concerning his Rental Agreement.

C. Defendants’ Second Attempt to Exclude Mr. Luellen from the Ceramic Studio.

63. On August 9, 2021, in accordance with his rights under the Rental Agreement,

Mr. Luellen returned to the Ceramics Studio and once again, FCAC’s staff demanded that he either

place a cover over his face or leave the facility.

64. Although FCAC’s Executive Director Ms. McKeiver claimed to fear for her safety

due to Mr. Luellen’s failure to place a cloth cover over his face, she approached Mr. Luellen within

mere inches to yell directly into his face.

65. When Mr. Luellen asked why she was getting so close to him, Ms. McKeiver

answered that she was entirely safe because she was wearing a cloth over her own face.

66. Upon information and belief, Ms. McKeiver called the police, claiming that

Mr. Luellen was a trespasser. Upon information and belief, she asked the police to remove

Mr. Luellen from the rented premises.

67. Ms. McKeiver, together with FCAC staff members and the police acting at her

direction, forcibly removed Mr. Luellen’s ceramics projects from his shelf, and placed them into

a box, demanding that Mr. Luellen take his personal property and leave.

68. Mr. Luellen voluntarily left at the request of the police, taking many of his

unfinished ceramics projects with him.

69. That afternoon, Ms. McKeiver wrote Mr. Luellen an email purportedly cancelling

his membership with FCAC “due to lapse in payment (11-14-20).” Ms. McKeiver’s email did not
11

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purport to terminate Mr. Luellen’s lease for the Ceramics Studio. Instead, she offered to schedule

a time to pick up his inventory and offered to refund of his rent paid under the Rental Agreement

for the Ceramics Studio.

70. Mr. Luellen immediately responded to decline Ms. McKeiver’s offer to cancel his

lease in exchange for a refund, writing in relevant part as follows:

I have a current lease with the Flower City Arts Center that allows
me to use the facility. If the Flower City Arts Center wish to
terminate the lease and evict me it may do so. It must first obtain a
warrant of eviction from a court of competent jurisdiction which,
assuming that it prevails, will issue ita warrant of eviction. Until
then, I will continue to use the facilities in a manner prescribed by
law and our contract. If the Flower City Arts Center refuses to allow
me to use the facility I will seek a legal remedies against you and
the Flower City Arts Center, both civil and criminal.

A true and correct copy of the entire email chain is attached as Exhibit “B”.

71. Mr. Luellen never received a written response to his August 9, 2021 email.

D. Defendants Fail to Supply Evidence that the Rental Agreement was Terminated, and
Are Specifically Warned of Liability for False Arrest, Malicious Prosecution, and
Constructive Eviction.

72. Four days later, on August 12, 2021, counsel for Mr. Luellen called FCAC’s

Executive Director, Cheryl McKeiver and spoke with her on the phone.

73. During the conversation, Ms. McKeiver stated that she was in possession of a

separate membership agreement between FCAC and Mr. Luellen and signed by Mr. Luellen. She

took the position that Mr. Luellen’s membership agreement and Rental Agreement were both

terminated based upon Mr. Luellen’s alleged failure to timely pay an annual membership renewal

fee due in November of 2020.

74. Ms. McKeiver promised to send Mr. Luellen’s counsel a copy of the alleged

membership agreement, along with any notices FCAC sent to Mr. Luellen excluding him from the

property, and any other pertinent documentation.

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75. Mr. Luellen does not recall signing any separate membership agreement with

FCAC.

76. FCAC never sent any documentation to Mr. Luellen’s counsel despite multiple

requests.

77. Regardless, the Rental Agreement is plainly the document that governs

Mr. Luellen’s lease of the rental space.

78. At the time Mr. Luellen rented the space by entering into the Rental Agreement, he

was a current member of the Flower City Arts Center. He thus satisfied the requirement (in the

FCAC-drafted agreement) that he be a FCAC member.

79. Although Mr. Luellen allegedly failed to timely make one membership renewal

payment with the arts center in November 2020, over the ensuing nine months, as Ms. McKeiver

well knows, FCAC continued to accept Mr. Luellen’s monthly rent payments for the Ceramics

Studio and to permit Mr. Luellen access to the premises and Ceramics Studio.

80. Defendants’ conduct and actions are therefore completely inconsistent with their

most recent argument that the alleged lapse in payment of a membership renewal fee had any effect

on the validity of Mr. Luellen’s Rental Agreement.

81. At the very least, Defendants’ conduct in continuing to accept Mr. Luellen’s rent

payments and in allowing his use of the space for approximately nine months constitutes a waiver

of any such argument.

82. Regardless, for the avoidance of doubt, on August 18, 2021, Mr. Luellen paid the

allegedly overdue membership fee to FCAC.

83. FCAC accepted Mr. Luellen’s payment, and issued Mr. Luellen a receipt, a copy

of which is attached as Exhibit “C”.

Case Info

Judge

Daniel J Doyle Track Judge’s New Case

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Document Filed Date

September 02, 2021

Case Filing Date

September 02, 2021

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Complaint,Petition: Jeffrey Luellen v. Flower City Arts Center, Inc. And Cheryl Mckeiver

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