Preview
FILED: SARATOGA COUNTY CLERK 11/02/2020 03:06 PM INDEX NO. 20162946
NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/02/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SARATOGA
WEN MEI LU, CHIN CHUNG LIN LU,
LI HUA LU AND LU HOLDING, LLC,
AFFIDAVIT
Plaintiffs,
-against- Index No.: 2016-2946
RJI No.: 45-1-2016-1480
WEN YING GAMBA, YUEN HSIANG LU,
And WEN FU LU,
Defendants.
STATE OF NEW YORK :
: ss.:
COUNTY OF SARATOGA :
David A. Harper, Esq., being duly sworn, deposes and says, that:
1. The undersigned is the Temporary Receiver of the subject premises appointed under
order of the Hon. Thomas Nolan dated July 6, 2017. A copy of said order is annexed hereto as
Exhibit "A".
2. I make this affidavit in support of my motion to the court for an order authorizing the
repair of the exterior walls of the premises known as 175 South Broadway, to service the boiler, to
5 consider an underpayment of rent, to approve the expenses paid by the receiver to date and to pay
interim commissions.
3. The court's order the receiver - Exhibit A - requires the receiver to receive
appointing
the approval of the court for any repair in excess of $1,000.
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NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/02/2020
MOTION TO REPAIR EXTERNAL WALLS AND HAVE BOILER SERVICED
4. Under the terms of said order, the Temporary Receiver was "authorized to
Properties"
immediately take charge and enter into possession of the and to "institute and on all
carry
legal proceedings necessary for the protection of the Properties or to recover possession of the whole,
or any part thereof'.
5. On or about October 15, 2020, your affiant received an email from "Duo Modern
. Japanese Cuisine and Hibachi", the tenant in the subject premises. Said email reported the failure of
the exterior walls of the building, which are surfaced with a stucco façade. The email included
photographs of a number of the walls and the eaves in the roof. The photographs show major cracks
in the stucco facade, to the point where the façade is buckled outwardly and sometimes exposing the
steel fabric underlayment below the stucco where the façade has fallen off. I have visited the
premises and I agree the walls are cracked and in serious need of repair. I also received from the
tenant a copy of a letter from their insurance carrier, Utica First Insurance Company, dated October 8,
2020, a copy of which is annexed hereto as Exhibit B. Said letter mandates that the cracks in the
walls, eaves and foundations be repaired within 30 days. Said letter also mandates that the boiler "be
serviced and tagged annually". Your affiant forwarded Duo's email and the insurañce company letter
to The attomeyS for the respective parties, requested their consent to make arrangements for the
necessary work and stating that without their joint agreement I would proceed to petition the court for
authority to make the necessary repairs.
6. I have not received the consent from the attorneys for the parties, and thus I am
proceeding with this motion.
7. Paragraph 35 of the lease, dated October 8, 2020, with Duo's in pertinent part recites:
"Landlord shall not be responsible for any repairs to the interior of exterior of the structure of the
Premises including the roofs and exterior walls during the period of this Lease, or any extensions
2
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FILED: SARATOGA COUNTY CLERK 11/02/2020 03:06 PM INDEX NO. 20162946
NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/02/2020
thereof."... "Tenant shall at Tenant's own expense maintain ....exterior walls and roofs in good
condition."
working order, repair and A copy of the relevant portion of the lease is annexed hereto as
Exhibit C.
8. However, the third unnumbered paragraph of the Addendum, dated November 28,
2014 to the Lease overrides the language of the lease and recites: "Moreover, Landlord hereby agrees
to build a new façade (from ground to the parapet wall) in the front three sections of the building
walls."
currently fmished with stucco material allthe way up to include the parapet A copy of the
relevant portion of the Addendum to the Lease is annexed hereto as Exhibit D.
MOTION FOR GUIDANCE WITH RESPECT TO UNDERPAYMENT OF RENT
"Duo's"
9. Upon the acceleration of the COVID 19 pandemic the tenant notified me on
or about March 16, 2020 that they would be unable to pay the full rent. That day, Governor Cuomo
prohibited indoor dining at restaurants, which thereafter could only offer takeout service.
10. Thereafter I notified the court of the stated inability of Duo's to pay full rent, by letter
dated March 19, 2020, a copy of which is annexed hereto as Exhibit E. At the time the courts were
under a shutdown; I received an email acknowledgmeñt of the receipt of my letter from Mark
Cacozza, Principal Law Clerk.
1 l.. The tenant Duo thereafter paid less than the full rent for the months of April, May &
June, namely $1,506.69 instead of $10,769.35, for a monthly shortfall of $9,262.66. Over the course
of the three months, the total shortfall in rent totaled $27,787.98. Effective with the rent due July 1,
2020, Duo's has paid the full monthly rent to date.
12. From prior correspondence with attorney Brennan who represents the defeñdañts, I
sense the defendants would like to terminate the lease with "Duo's", for reasons that are not clear to
me.
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FILED: SARATOGA COUNTY CLERK 11/02/2020 03:06 PM INDEX NO. 20162946
NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/02/2020
13. I understand that allevictions, including for commercial properties, have been stayed
by Governor Cuomo until further notice. I have taken no steps to commence an eviction proceeding
with Duo's.
14. At this time I am seeking guidance from the court as to what steps, if any, I should
take with respect to the underpayment of rent by Duo's for the three months of April, May & June of
2020.
MOTION TO CONFIRM EXPENSES TO DATE
15. Your affiant has paid the expenses to date as set forth in the checkbook register, a
copy of which is annexed hereto as Exhibit "F". This account is held at the Adirendack Trust
Company. A copy of the most recent monthly statement from the Adirondack Trust Company is
annexed hereto as Exhibit "G".
16. I heretofore moved the sum of $200,000 pursuant to the court's letter order dated
December 2, 2019 to the Saratoga National Bank for the purpose of keeping the funds on deposit
widi any particular bank under the FDIC insurance limit of $250,000. A copy of the most recent
monthly statement from Saratoga National Bank is annexed hereto as Exhibit "H".
MOTION FOR COMMISSIONS TO DATE
o 17. Since the last time the court authorized the payment of interim commissions, I have
performed the additional services from March 12, 2020 to October 21, 2020 as set forth in the
"I"
invoices annexed hereto as Exhibit in the amount of $8,550. The additional services, plus unpaid
legal services which pre-date March 12, 2020, total $6,639.88, as is shown by the statement dated
October 20, 2020, also ann-ed hereto as part of Exhibit "I". My usual hourly rate remains at $300.
18. Civil Practice Laws and Rules 8004 (a) provides that a receiver is entitled to
commissions not exceeding 5% of the sums received and disbursed by him.
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FILED: SARATOGA COUNTY CLERK 11/02/2020 03:06 PM INDEX NO. 20162946
NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/02/2020
19. To date I have received rental monies totaling the sum of $457,459.95 of which some
has been disbursed, and all of which will Stimately be disbursed. Applying the statutory 5% cap to
commissions"
the total of rental monies received to date results in "maximum allowable of
$22,873.00.
20. I have heretofore been authorized to receive the following interim commissions:
Date of Order Amount of Interim Commissions
December 14, 2017 $2,021.25
December 18, 2018 $8,176.75
June 14, 2019 $1,924.16
June 3, 2020 $7,845.96
Total authorized to date: $19,968.12
The total of the interim commissions allowed by the court to date reduces the sum to be payable at
o
this date to be the sum of $2,904.88 [$22,873.00 - $19,968.12]. I request authorization for
Therefore,
interim commissions in the amount of $2,904.88, even though I am owed more as set forth supra.
WHEREFORE, your affirmant as temporary receiver requests an order:
O
(A) Authorizing the repair of the walls, eaves & foundation of 175 South Broadway upon
o such terms and conditions as to the court seems just, and to arrange to have the boiler serviced and
"tagged annually",
(B) Stating what action, if any, the receiver should take with respect to the underpayment
of rent for the months of April, May & June 2020 by the tenant Duo's at 175 South Broadway,
(C) Approving the payment of all of the expenses set forth supra and as attached hereto,
(D) Awarding interim commissions in the amount of $2,904.88 to the undersigned as
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FILED: SARATOGA COUNTY CLERK 11/02/2020 03:06 PM INDEX NO. 20162946
NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/02/2020
Temporary Receiver,
David A. Harper, Esq., Temporary Receiver
Sworn to thf _ daÿ
of Octo 0
>-
PATRICIA L CLUTE
Notary Public.State ofNew York
Quenii .c; in Schencetady
County 4609
Commisr'an Excim Dac. 31, 20
Exhibits annexed to the affidavit:
A. Order of the Hon. Thomas D. Nolan, Jr. dated July 6, 2017
B. Letter from Utica First, dated October 8, 2020
C. Lease, dated July 30, 2010
D. Addendum to lease, dated November 28, 2014
E. Letter to the court, dated March 19, 2020
o F. Checkbook register
o
G. Monthly statement from Adirondack Trust Company
H. Monthly statement from Saratoga National
I. David A. Harper's statement & invoices for services rendered
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Preview
FILED: SARATOGA COUNTY CLERK 11/02/2020 03:06 PM INDEX NO. 20162946 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/02/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SARATOGA WEN MEI LU, CHIN CHUNG LIN LU, LI HUA LU AND LU HOLDING, LLC, AFFIDAVIT Plaintiffs, -against- Index No.: 2016-2946 RJI No.: 45-1-2016-1480 WEN YING GAMBA, YUEN HSIANG LU, And WEN FU LU, Defendants. STATE OF NEW YORK : : ss.: COUNTY OF SARATOGA : David A. Harper, Esq., being duly sworn, deposes and says, that: 1. The undersigned is the Temporary Receiver of the subject premises appointed under order of the Hon. Thomas Nolan dated July 6, 2017. A copy of said order is annexed hereto as Exhibit "A". 2. I make this affidavit in support of my motion to the court for an order authorizing the repair of the exterior walls of the premises known as 175 South Broadway, to service the boiler, to 5 consider an underpayment of rent, to approve the expenses paid by the receiver to date and to pay interim commissions. 3. The court's order the receiver - Exhibit A - requires the receiver to receive appointing the approval of the court for any repair in excess of $1,000. 1 of 6 FILED: SARATOGA COUNTY CLERK 11/02/2020 03:06 PM INDEX NO. 20162946 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/02/2020 MOTION TO REPAIR EXTERNAL WALLS AND HAVE BOILER SERVICED 4. Under the terms of said order, the Temporary Receiver was "authorized to Properties" immediately take charge and enter into possession of the and to "institute and on all carry legal proceedings necessary for the protection of the Properties or to recover possession of the whole, or any part thereof'. 5. On or about October 15, 2020, your affiant received an email from "Duo Modern . Japanese Cuisine and Hibachi", the tenant in the subject premises. Said email reported the failure of the exterior walls of the building, which are surfaced with a stucco façade. The email included photographs of a number of the walls and the eaves in the roof. The photographs show major cracks in the stucco facade, to the point where the façade is buckled outwardly and sometimes exposing the steel fabric underlayment below the stucco where the façade has fallen off. I have visited the premises and I agree the walls are cracked and in serious need of repair. I also received from the tenant a copy of a letter from their insurance carrier, Utica First Insurance Company, dated October 8, 2020, a copy of which is annexed hereto as Exhibit B. Said letter mandates that the cracks in the walls, eaves and foundations be repaired within 30 days. Said letter also mandates that the boiler "be serviced and tagged annually". Your affiant forwarded Duo's email and the insurañce company letter to The attomeyS for the respective parties, requested their consent to make arrangements for the necessary work and stating that without their joint agreement I would proceed to petition the court for authority to make the necessary repairs. 6. I have not received the consent from the attorneys for the parties, and thus I am proceeding with this motion. 7. Paragraph 35 of the lease, dated October 8, 2020, with Duo's in pertinent part recites: "Landlord shall not be responsible for any repairs to the interior of exterior of the structure of the Premises including the roofs and exterior walls during the period of this Lease, or any extensions 2 2 of 6 FILED: SARATOGA COUNTY CLERK 11/02/2020 03:06 PM INDEX NO. 20162946 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/02/2020 thereof."... "Tenant shall at Tenant's own expense maintain ....exterior walls and roofs in good condition." working order, repair and A copy of the relevant portion of the lease is annexed hereto as Exhibit C. 8. However, the third unnumbered paragraph of the Addendum, dated November 28, 2014 to the Lease overrides the language of the lease and recites: "Moreover, Landlord hereby agrees to build a new façade (from ground to the parapet wall) in the front three sections of the building walls." currently fmished with stucco material allthe way up to include the parapet A copy of the relevant portion of the Addendum to the Lease is annexed hereto as Exhibit D. MOTION FOR GUIDANCE WITH RESPECT TO UNDERPAYMENT OF RENT "Duo's" 9. Upon the acceleration of the COVID 19 pandemic the tenant notified me on or about March 16, 2020 that they would be unable to pay the full rent. That day, Governor Cuomo prohibited indoor dining at restaurants, which thereafter could only offer takeout service. 10. Thereafter I notified the court of the stated inability of Duo's to pay full rent, by letter dated March 19, 2020, a copy of which is annexed hereto as Exhibit E. At the time the courts were under a shutdown; I received an email acknowledgmeñt of the receipt of my letter from Mark Cacozza, Principal Law Clerk. 1 l.. The tenant Duo thereafter paid less than the full rent for the months of April, May & June, namely $1,506.69 instead of $10,769.35, for a monthly shortfall of $9,262.66. Over the course of the three months, the total shortfall in rent totaled $27,787.98. Effective with the rent due July 1, 2020, Duo's has paid the full monthly rent to date. 12. From prior correspondence with attorney Brennan who represents the defeñdañts, I sense the defendants would like to terminate the lease with "Duo's", for reasons that are not clear to me. 3 3 of 6 FILED: SARATOGA COUNTY CLERK 11/02/2020 03:06 PM INDEX NO. 20162946 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/02/2020 13. I understand that allevictions, including for commercial properties, have been stayed by Governor Cuomo until further notice. I have taken no steps to commence an eviction proceeding with Duo's. 14. At this time I am seeking guidance from the court as to what steps, if any, I should take with respect to the underpayment of rent by Duo's for the three months of April, May & June of 2020. MOTION TO CONFIRM EXPENSES TO DATE 15. Your affiant has paid the expenses to date as set forth in the checkbook register, a copy of which is annexed hereto as Exhibit "F". This account is held at the Adirendack Trust Company. A copy of the most recent monthly statement from the Adirondack Trust Company is annexed hereto as Exhibit "G". 16. I heretofore moved the sum of $200,000 pursuant to the court's letter order dated December 2, 2019 to the Saratoga National Bank for the purpose of keeping the funds on deposit widi any particular bank under the FDIC insurance limit of $250,000. A copy of the most recent monthly statement from Saratoga National Bank is annexed hereto as Exhibit "H". MOTION FOR COMMISSIONS TO DATE o 17. Since the last time the court authorized the payment of interim commissions, I have performed the additional services from March 12, 2020 to October 21, 2020 as set forth in the "I" invoices annexed hereto as Exhibit in the amount of $8,550. The additional services, plus unpaid legal services which pre-date March 12, 2020, total $6,639.88, as is shown by the statement dated October 20, 2020, also ann-ed hereto as part of Exhibit "I". My usual hourly rate remains at $300. 18. Civil Practice Laws and Rules 8004 (a) provides that a receiver is entitled to commissions not exceeding 5% of the sums received and disbursed by him. 4 4 of 6 FILED: SARATOGA COUNTY CLERK 11/02/2020 03:06 PM INDEX NO. 20162946 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/02/2020 19. To date I have received rental monies totaling the sum of $457,459.95 of which some has been disbursed, and all of which will Stimately be disbursed. Applying the statutory 5% cap to commissions" the total of rental monies received to date results in "maximum allowable of $22,873.00. 20. I have heretofore been authorized to receive the following interim commissions: Date of Order Amount of Interim Commissions December 14, 2017 $2,021.25 December 18, 2018 $8,176.75 June 14, 2019 $1,924.16 June 3, 2020 $7,845.96 Total authorized to date: $19,968.12 The total of the interim commissions allowed by the court to date reduces the sum to be payable at o this date to be the sum of $2,904.88 [$22,873.00 - $19,968.12]. I request authorization for Therefore, interim commissions in the amount of $2,904.88, even though I am owed more as set forth supra. WHEREFORE, your affirmant as temporary receiver requests an order: O (A) Authorizing the repair of the walls, eaves & foundation of 175 South Broadway upon o such terms and conditions as to the court seems just, and to arrange to have the boiler serviced and "tagged annually", (B) Stating what action, if any, the receiver should take with respect to the underpayment of rent for the months of April, May & June 2020 by the tenant Duo's at 175 South Broadway, (C) Approving the payment of all of the expenses set forth supra and as attached hereto, (D) Awarding interim commissions in the amount of $2,904.88 to the undersigned as 5 5 of 6 FILED: SARATOGA COUNTY CLERK 11/02/2020 03:06 PM INDEX NO. 20162946 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/02/2020 Temporary Receiver, David A. Harper, Esq., Temporary Receiver Sworn to thf _ daÿ of Octo 0 >- PATRICIA L CLUTE Notary Public.State ofNew York Quenii .c; in Schencetady County 4609 Commisr'an Excim Dac. 31, 20 Exhibits annexed to the affidavit: A. Order of the Hon. Thomas D. Nolan, Jr. dated July 6, 2017 B. Letter from Utica First, dated October 8, 2020 C. Lease, dated July 30, 2010 D. Addendum to lease, dated November 28, 2014 E. Letter to the court, dated March 19, 2020 o F. Checkbook register o G. Monthly statement from Adirondack Trust Company H. Monthly statement from Saratoga National I. David A. Harper's statement & invoices for services rendered 6 6 of 6