Preview
FILED: WESTCHESTER COUNTY CLERK 07/29/2020 11:14 AM INDEX NO. 51573/2015
NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 07/29/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER INDEX NO.51573-2015
------------------------------------------------------------------X
CDC Development Properties Inc
Plaintiff,
-against- REPLY
AFFIRMATION
AMERICAN INDEPENDENT PAPER MILLS
SUPPLY CO., INC and Hudson Harbor Homes, Inc.
Defendants.
-----------------------------------------------------------------X
1. Mark E. Constantine, Esq. an attorney duly admitted to practice in the State of New
York, makes this reply affirmation in further support of AIP's motion to modify the
prior order of this Court and release $600,000.00 of AIP's money that has been held
hostage for over two (2) years.
2. Once again AIP must shed the light of truth upon the lies, exaggerations and
inflations that have been the hallmark of CDC's trumped up claims from the
inception of this case.
3. As further explained in AIP's reply affidavit, CDC continues to misstate facts, omit
critical information and make outlandish presumptions in order to bolster its frivolous
petty claims.
4. More particularly, CDC has completely failed to submit an affidavit of fact in support
of their purported opposition to the release of the escrow funds.
1 of 7
FILED: WESTCHESTER COUNTY CLERK 07/29/2020 11:14 AM INDEX NO. 51573/2015
NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 07/29/2020
5. Without such an affidavit containing evidence in admissible form CDC cannot satisfy
itsheavy burden to establish a likelihood of success on the merits.
6. Similarly, CDC cannot establish any material prejudice nor can CDC establish that
they have no adequate remedy at law.
7. In fact, the undeniable facts and law of the case actually establish that CDC has no or
very littlelikelihood of success on the merits of its claims that were unequivocally
eviscerated by the Appellate Division.
8. It isalso undeniable that the $600,000.00 in question is clearly AIP's money as a
result of the sale of AIP's property that has nothing to do with CDC or this case.
Therefore, there is no material prejudice to CDC by releasing said funds.
9. Instead, AIP has suffered and will continue to suffer significant prejudice by having
its$600,000.00 tied up unnecessarily.
10. Lastly, by definition, CDC has an adequate remedy at law as CDC's claims are for
nothing else but monetary damages.
11. There is no claim for equitable relief such that there is no basis to continue the
unlawful restraint of AIP's funds and by extension restraining AIP.
12. Even if the Court fails to reject CDC's late unauthorized affirmation, the Court must
stillgrant AIP's motion as said affirmation contains no new material facts or
controlling law that would support the continued restraint of AIP's funds.
2 of 7
FILED: WESTCHESTER COUNTY CLERK 07/29/2020 11:14 AM INDEX NO. 51573/2015
NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 07/29/2020
13. Instead, CDC's affirmation is fraught with presumptions, conjecture and wild
extrapolations of damages as follows:
3. Even with the Appellate Division's decision, CDC still stands to recover
approximately $158,000 when itis successful on itsclaims. This includes $132,289.18 in damages
and another $26,086.21 in post-verdict interest that will accrue while AIP invariably conducts
post-trial motion and appellate practice in itslast gasp effort to prevent CDC form ever seeing the
money to which itis rightfully, and inarguably entitled. Accordingly, itis respectfully submitted
that any modification of the prior order must require AIP to lilailitaliiat least $175,000. The
additional $17,000 is to account for unforeseen circumstances or a further delay in the trial.
4. The $132,289.18 owed to CDC includes:
a. $71,524.09 for unreturned security deposit;
b. $22,741.41 for CDC's share of the tax rebate received by AIP;
c. $16,261.99 for repair to the boiler;
d. Approx. $11,761.69 for repair to roof and pipe;
e. Approx. $5,000-$10,000 for unpaid interest on security deposit;
f. $26,086.21 for two years interest on post-judgment award of $132,289.18.
14. The foregoing damages schedule is a direct excerpt from CDC's affirmation and
lis in direct contradiction with CDC's fabricate damage calculation on December __,
2018.
3 of 7
FILED: WESTCHESTER COUNTY CLERK 07/29/2020 11:14 AM INDEX NO. 51573/2015
NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 07/29/2020
14. Moreover, the foregoing excerpt includes pre and post judgment interest for claims
that were never ripe in the firstplace, have yet to be proven in the second place and
are inflated in the third place.
15. In fact, CDC's further inflates their alleged damages by calculating interest until after
January 2023. That is almost an additional 3 years of statutory interest at 9%. This
adds almost 30% to the already inflated damages allegations.
16. For example, notwithstanding any contained in Mr. Lansky's affidavit or any other
statement on AIP's behalf. the Appellate Division Decision clearly and unequivocally
declared that allof CDC's claims for tax refunds and/or rent abatement were
dismissed based upon the unambiguous language of the lease.
17. Moreover, even if there were any damages associated with tax refunds they could not
incur interest until after 2013 as those certiorari actions were stillpending and not
settled until after that time.
18. Accordingly, in any event, the Appellate Division decision requires that the damages
claimed in subsection b above do not exist.
19. As for subsection a that claims damages for the unreturned security deposit, this
failsto account for AIP's valid claims to retain at least $14,000.00 of those funds for
cleaning up the thousands of square feet of artificial turf, tons of crumb rubber
underlayment and hundreds of square yards of netting that CDC left at the premises
when they finally vacated.
4 of 7
FILED: WESTCHESTER COUNTY CLERK 07/29/2020 11:14 AM INDEX NO. 51573/2015
NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 07/29/2020
20. AIP also has valid claims for legal fees associated with the several landlord tenant
petitions that were filed in Tarrytown Village Court and consolidated with this action
for trial.Similarly, AIP has claims for legal fees based upon CDC's continued
frivolous and unmeritorious prosecution of itsclaims including the unnecessary legal
fees associated with the current motion as CDC would not consent to the release of
the escrow in light of the Appellate Division's Decision.
21. The foregoing claims would eliminate any claim by CDC for the return of the security
deposit.
22. This is allyet another stall tactic on CDC's part.
23. CDC's damages for boiler repair in subsection c are also unsupported by the law or
the lease. CDC never provided AIP with the prerequisite notice of any defect with the
Boiler nor did CDC provide AIP with an opportunity to cure any such defect as
required by the lease such that CDC had no right to unilaterally decide to install a
new boiler at the premises.
24. Accordingly, CDC has no right to make any claim for reimbursement of any of the
costs of itsunlawful and unauthorized actions such that there is no claim for the
damages in subsection c.
25. Lastly, the damages alleged by CDC in subsection d of the schedule contained in
CDC's counsel's fabricated affirmation are the most fictitious of the bunch as CDC
has never provided proof of satisfying the pre-requisite notice requirement nor has
5 of 7
FILED: WESTCHESTER COUNTY CLERK 07/29/2020 11:14 AM INDEX NO. 51573/2015
NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 07/29/2020
CDC ever provided AIP a reasonable opportunity to cure in accordance with the
lease.
26. However, most importantly CDC has never, in over five (5) years of litigation,
provided any proof that CDC made any repairs to the roof or incurred any damages or
costs as a direct result of any alleged defect in the roof.
27. Once again, in the absence of any admissible evidence, all of the claims in subsection
d of CDC's schedule of alleged damages are not valid.
hill"
28. CDC is trying to make a "mountain out of an ant (not even a mole hill)by
staring with baseless inflated claims, delaying and frustrating the litigation, adding
unwarranted pre-judgment interest, and finally adding unwarranted post-judgment
interest until dates are far into the future.
29. This Court cannot continue to countenance and, even worse, reward CDC's frivolous
and unmeritorious claims and delaying tactics.
30. The most recent manifestation of CDC's bad faith dragging out of this case is the fact
that itis now over a month since the appellate division rendered its decision and CDC
has completely failed to take any action to restore this matter to the trial calendar.
31. It isvery telling that CDC's counsel has failed to take that very simple and
straightforward action while continuing to swear that CDC has valuable meritorious
claims that total over one hundred and fifty thousand dollars ($150,000.00).
6 of 7
FILED: WESTCHESTER COUNTY CLERK 07/29/2020 11:14 AM INDEX NO. 51573/2015
NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 07/29/2020
32. Instead, CDC has chosen to refuse to consent to releasing the admittedly inflated
escrow and more disturbingly to use itstime and resources to file late,unauthorized
and irrelevant purported opposition to AIP's motion to release AIP's funds.
33. Actions speak louder than words and CDC's actions continue to cry bad faith when
CDC failsto restore its allegedly valuable claims to the trialcalendar.
34. In fact, if CDC continues to,inexplicably, failto restore the case to the trial calendar,
AIP may have to, once again, take the reasonable responsible action to move the case
forward by taking the unusual step of moving to restore the case to the trial calendar.
35. In that event AIP would, once again, be entitled to attorney's fees for having to make
such a motion.
36. For the reasons stated herein AIP's motion to release the escrow funds pursuant to the
Appellate Division's decision must be granted and the funds must be released to AIP.
Dated: July 29, 2020
Tarrytown, New York
Mark E. Constantine, Esq.
7 of 7
Preview
FILED: WESTCHESTER COUNTY CLERK 07/29/2020 11:14 AM INDEX NO. 51573/2015 NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 07/29/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER INDEX NO.51573-2015 ------------------------------------------------------------------X CDC Development Properties Inc Plaintiff, -against- REPLY AFFIRMATION AMERICAN INDEPENDENT PAPER MILLS SUPPLY CO., INC and Hudson Harbor Homes, Inc. Defendants. -----------------------------------------------------------------X 1. Mark E. Constantine, Esq. an attorney duly admitted to practice in the State of New York, makes this reply affirmation in further support of AIP's motion to modify the prior order of this Court and release $600,000.00 of AIP's money that has been held hostage for over two (2) years. 2. Once again AIP must shed the light of truth upon the lies, exaggerations and inflations that have been the hallmark of CDC's trumped up claims from the inception of this case. 3. As further explained in AIP's reply affidavit, CDC continues to misstate facts, omit critical information and make outlandish presumptions in order to bolster its frivolous petty claims. 4. More particularly, CDC has completely failed to submit an affidavit of fact in support of their purported opposition to the release of the escrow funds. 1 of 7 FILED: WESTCHESTER COUNTY CLERK 07/29/2020 11:14 AM INDEX NO. 51573/2015 NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 07/29/2020 5. Without such an affidavit containing evidence in admissible form CDC cannot satisfy itsheavy burden to establish a likelihood of success on the merits. 6. Similarly, CDC cannot establish any material prejudice nor can CDC establish that they have no adequate remedy at law. 7. In fact, the undeniable facts and law of the case actually establish that CDC has no or very littlelikelihood of success on the merits of its claims that were unequivocally eviscerated by the Appellate Division. 8. It isalso undeniable that the $600,000.00 in question is clearly AIP's money as a result of the sale of AIP's property that has nothing to do with CDC or this case. Therefore, there is no material prejudice to CDC by releasing said funds. 9. Instead, AIP has suffered and will continue to suffer significant prejudice by having its$600,000.00 tied up unnecessarily. 10. Lastly, by definition, CDC has an adequate remedy at law as CDC's claims are for nothing else but monetary damages. 11. There is no claim for equitable relief such that there is no basis to continue the unlawful restraint of AIP's funds and by extension restraining AIP. 12. Even if the Court fails to reject CDC's late unauthorized affirmation, the Court must stillgrant AIP's motion as said affirmation contains no new material facts or controlling law that would support the continued restraint of AIP's funds. 2 of 7 FILED: WESTCHESTER COUNTY CLERK 07/29/2020 11:14 AM INDEX NO. 51573/2015 NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 07/29/2020 13. Instead, CDC's affirmation is fraught with presumptions, conjecture and wild extrapolations of damages as follows: 3. Even with the Appellate Division's decision, CDC still stands to recover approximately $158,000 when itis successful on itsclaims. This includes $132,289.18 in damages and another $26,086.21 in post-verdict interest that will accrue while AIP invariably conducts post-trial motion and appellate practice in itslast gasp effort to prevent CDC form ever seeing the money to which itis rightfully, and inarguably entitled. Accordingly, itis respectfully submitted that any modification of the prior order must require AIP to lilailitaliiat least $175,000. The additional $17,000 is to account for unforeseen circumstances or a further delay in the trial. 4. The $132,289.18 owed to CDC includes: a. $71,524.09 for unreturned security deposit; b. $22,741.41 for CDC's share of the tax rebate received by AIP; c. $16,261.99 for repair to the boiler; d. Approx. $11,761.69 for repair to roof and pipe; e. Approx. $5,000-$10,000 for unpaid interest on security deposit; f. $26,086.21 for two years interest on post-judgment award of $132,289.18. 14. The foregoing damages schedule is a direct excerpt from CDC's affirmation and lis in direct contradiction with CDC's fabricate damage calculation on December __, 2018. 3 of 7 FILED: WESTCHESTER COUNTY CLERK 07/29/2020 11:14 AM INDEX NO. 51573/2015 NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 07/29/2020 14. Moreover, the foregoing excerpt includes pre and post judgment interest for claims that were never ripe in the firstplace, have yet to be proven in the second place and are inflated in the third place. 15. In fact, CDC's further inflates their alleged damages by calculating interest until after January 2023. That is almost an additional 3 years of statutory interest at 9%. This adds almost 30% to the already inflated damages allegations. 16. For example, notwithstanding any contained in Mr. Lansky's affidavit or any other statement on AIP's behalf. the Appellate Division Decision clearly and unequivocally declared that allof CDC's claims for tax refunds and/or rent abatement were dismissed based upon the unambiguous language of the lease. 17. Moreover, even if there were any damages associated with tax refunds they could not incur interest until after 2013 as those certiorari actions were stillpending and not settled until after that time. 18. Accordingly, in any event, the Appellate Division decision requires that the damages claimed in subsection b above do not exist. 19. As for subsection a that claims damages for the unreturned security deposit, this failsto account for AIP's valid claims to retain at least $14,000.00 of those funds for cleaning up the thousands of square feet of artificial turf, tons of crumb rubber underlayment and hundreds of square yards of netting that CDC left at the premises when they finally vacated. 4 of 7 FILED: WESTCHESTER COUNTY CLERK 07/29/2020 11:14 AM INDEX NO. 51573/2015 NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 07/29/2020 20. AIP also has valid claims for legal fees associated with the several landlord tenant petitions that were filed in Tarrytown Village Court and consolidated with this action for trial.Similarly, AIP has claims for legal fees based upon CDC's continued frivolous and unmeritorious prosecution of itsclaims including the unnecessary legal fees associated with the current motion as CDC would not consent to the release of the escrow in light of the Appellate Division's Decision. 21. The foregoing claims would eliminate any claim by CDC for the return of the security deposit. 22. This is allyet another stall tactic on CDC's part. 23. CDC's damages for boiler repair in subsection c are also unsupported by the law or the lease. CDC never provided AIP with the prerequisite notice of any defect with the Boiler nor did CDC provide AIP with an opportunity to cure any such defect as required by the lease such that CDC had no right to unilaterally decide to install a new boiler at the premises. 24. Accordingly, CDC has no right to make any claim for reimbursement of any of the costs of itsunlawful and unauthorized actions such that there is no claim for the damages in subsection c. 25. Lastly, the damages alleged by CDC in subsection d of the schedule contained in CDC's counsel's fabricated affirmation are the most fictitious of the bunch as CDC has never provided proof of satisfying the pre-requisite notice requirement nor has 5 of 7 FILED: WESTCHESTER COUNTY CLERK 07/29/2020 11:14 AM INDEX NO. 51573/2015 NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 07/29/2020 CDC ever provided AIP a reasonable opportunity to cure in accordance with the lease. 26. However, most importantly CDC has never, in over five (5) years of litigation, provided any proof that CDC made any repairs to the roof or incurred any damages or costs as a direct result of any alleged defect in the roof. 27. Once again, in the absence of any admissible evidence, all of the claims in subsection d of CDC's schedule of alleged damages are not valid. hill" 28. CDC is trying to make a "mountain out of an ant (not even a mole hill)by staring with baseless inflated claims, delaying and frustrating the litigation, adding unwarranted pre-judgment interest, and finally adding unwarranted post-judgment interest until dates are far into the future. 29. This Court cannot continue to countenance and, even worse, reward CDC's frivolous and unmeritorious claims and delaying tactics. 30. The most recent manifestation of CDC's bad faith dragging out of this case is the fact that itis now over a month since the appellate division rendered its decision and CDC has completely failed to take any action to restore this matter to the trial calendar. 31. It isvery telling that CDC's counsel has failed to take that very simple and straightforward action while continuing to swear that CDC has valuable meritorious claims that total over one hundred and fifty thousand dollars ($150,000.00). 6 of 7 FILED: WESTCHESTER COUNTY CLERK 07/29/2020 11:14 AM INDEX NO. 51573/2015 NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 07/29/2020 32. Instead, CDC has chosen to refuse to consent to releasing the admittedly inflated escrow and more disturbingly to use itstime and resources to file late,unauthorized and irrelevant purported opposition to AIP's motion to release AIP's funds. 33. Actions speak louder than words and CDC's actions continue to cry bad faith when CDC failsto restore its allegedly valuable claims to the trialcalendar. 34. In fact, if CDC continues to,inexplicably, failto restore the case to the trial calendar, AIP may have to, once again, take the reasonable responsible action to move the case forward by taking the unusual step of moving to restore the case to the trial calendar. 35. In that event AIP would, once again, be entitled to attorney's fees for having to make such a motion. 36. For the reasons stated herein AIP's motion to release the escrow funds pursuant to the Appellate Division's decision must be granted and the funds must be released to AIP. Dated: July 29, 2020 Tarrytown, New York Mark E. Constantine, Esq. 7 of 7