FILED: NEW YORK COUNTY CLERK 04/15/2024 04:05 PM
`NYSCEF DOC. NO. 89
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`INDEX NO. 162516/2023
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`RECEIVED NYSCEF: 04/15/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
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`In The Matter of the Application of
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`CREWFACILITIES.COM, LLC,
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`Petitioner,
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`For a Judgment Pursuant to Article 78 of the Civil
`Practice Law and Rules,
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`-against-
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`CITY OF NEW YORK, THE NEW YORK
`CITY OFFICE OF EMERGENCY
`MANAGEMENT and THE CONTRACT
`DISPUTE RESOLUTION BOARD OF THE
`NEW YORK CITY OFFICE OF
`ADMINISTRATIVE TRIALS AND
`HEARINGS,
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`Respondents.
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`Index No. 162516/2023
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`VERIFIED REPLY TO NYCEM’S
`STATEMENT OF PERTINENT AND
`MATERIAL FACTS SET FORTH IN
`ITS VERIFIED ANSWER
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`Petitioner CrewFacilities.com, LLC (“Crew”), by its attorneys at Robinson & Cole LLP,
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`hereby submits this Verified Reply pursuant to Section 7804(d) of the Civil Practice Law and
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`Rules (“CPLR”) in response to the City Respondents’ “Statement of Pertinent and Material Facts”
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`included as paragraphs 99 through 142 of the City Respondent’s Verified Answer (NYSCEF Doc.
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`No. 73). Unless expressly admitted hereto, Crew denies each and every allegation contained in
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`the City Respondents’ “Statement of Pertinent and Material Facts.”
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`PERTINENT AND MATERIAL FACTS ALLEGED BY THE CITY RESPONDENTS
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`99.
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`Crew denies the allegations contained in Paragraph 99 to the extent they allege that
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`the Board’s Determination1 was lawful, rational and/or should be upheld.
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`1 The capitalized terms used herein have the same meaning given to them in the Verified Petition,
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`FILED: NEW YORK COUNTY CLERK 04/15/2024 04:05 PM
`NYSCEF DOC. NO. 89
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`INDEX NO. 162516/2023
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`RECEIVED NYSCEF: 04/15/2024
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`100. Crew admits that, as a result of the COVID-19 pandemic, NYCEM entered into a
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`Services Agreement with Crew to assist with providing temporary housing of individuals impacted
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`by the pandemic. Crew respectfully refers the Court to the Services Agreement for a complete and
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`accurate recitation of its contents. Crew denies the remaining allegations contained in Paragraph
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`100.
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`101. Crew denies the allegations contained in Paragraph 101, and respectfully refers the
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`Court to the agreements referenced therein for a complete and accurate recitation of their contents.
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`102. Crew admits that HotelEngine entered in certain Supplier Agreements with certain
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`participating hotels but denies the remaining allegations contained in Paragraph 102.
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`103. Crew denies the allegations contained in Paragraph 103 and respectfully refers the
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`Court to the agreements referenced therein for a complete and accurate recitation of their contents.
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`104. Crew denies the allegations contained in Paragraph 104 and respectfully refers the
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`Court to the agreements referenced therein for a complete and accurate recitation of their contents.
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`105. Crew denies the allegations contained in Paragraph 105 and respectfully refers the
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`Court to the exhibits referenced therein, which do not condition the guarantee on a termination for
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`convenience but rather reference the guarantee as a standalone term, and the agreements
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`themselves.
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`106. Crew denies the allegations contained in Paragraph 106. By way of further
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`response, on or about July 1, 2020, NYCEM paid $13,498,415.07 in response to Crew’s June 17,
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`2020 invoice for the period of June 8-15, 2020.
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`unless otherwise indicated.
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`FILED: NEW YORK COUNTY CLERK 04/15/2024 04:05 PM
`NYSCEF DOC. NO. 89
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`INDEX NO. 162516/2023
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`RECEIVED NYSCEF: 04/15/2024
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`107. Crew denies the allegations contained in Paragraph 107 except admits that it paid
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`HotelEngine its management fees from the July Payment and temporarily withheld the hotel-
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`bounds funds.
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`108. Crew denies the allegations contained in Paragraph 108 and respectfully refers the
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`Court to the documents referenced therein for a true and accurate recitation of their contents.
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`109. Crew denies the allegations contained in Paragraph 109 and respectfully refers the
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`Court to the document referenced therein for a true and accurate recitation of its contents.
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`110. With respect to the allegations contained in Paragraph 110, Crew admits that
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`NYCEM sent Crew the letter submitted as NYSCEF Doc. No. 34 but denies the remainder of the
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`allegations.
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`111. With respect to the allegations contained in Paragraph 111, Crew admits that
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`NYCEM sent Crew the letter submitted as NYSCEF Doc. No. 33 but denies the remainder of the
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`allegations.
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`112. Crew denies the allegations contained in Paragraph 112, and refers the Court to the
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`documents in the record evidencing the information and responses Crew provided to NYCEM,
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`and Crew’s participation on calls with NYCEM during the time period in question. (See NYSCEF
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`Doc. Nos. 31, 35, 39, and 45.)
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`113. Crew admits that NYCEM held a meeting on July 31, 2020. Crew denies the
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`remaining allegations contained in Paragraph 113, including the implication that the “opportunity
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`to be heard” meeting was anything other than a fait accompli and NYCEM’s formulaic compliance
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`with the procedural rules preceding its predetermined termination of the Agreement.
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`114. Crew denies the allegations contained in Paragraph 114 and respectfully refers the
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`Court to the documents referenced therein for a true and accurate recitation of their contents.
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`FILED: NEW YORK COUNTY CLERK 04/15/2024 04:05 PM
`NYSCEF DOC. NO. 89
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`INDEX NO. 162516/2023
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`RECEIVED NYSCEF: 04/15/2024
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`115. Crew admits that NYCEM issued a Notice of Termination at 10:15 p.m. EDT on
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`July 31, 2020, less than two hours before the Services Agreement’s natural expiration. Crew
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`denies the remaining allegations contained in Paragraph 115 and respectfully refers the Court to
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`the document referenced therein for a true and accurate recitation of its contents.
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`116. Crew admits that NYCEM contracted directly with HotelEngine to complete the
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`close-out of the Program and further states that NYCEM had secured HotelEngine’s participation
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`prior to issuing the Notice of Termination on July 31, 2020. Crew denies the remaining allegations
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`contained in Paragraph 116.
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`117. Crew admits that NYCEM requested that Crew return the hotel-bounds funds from
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`the July Payment and that Crew complied with the request. Crew further states that NYCEM and
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`HotelEngine continued to withhold these hotel-bound funds from hotels under the Emergency Buy
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`Against Agreement pending reconciliation and eventually paid funds to hotels in the fall of 2020.
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`Crew denies the remaining allegations contained in Paragraph 117.
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`118. Crew admits that it timely challenged NYCEM’s termination of the Agreement and
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`respectfully refers the Court to the Notice of Dispute submitted as NYSCEF Doc. No. 48. Crew
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`denies the remaining allegations contained in Paragraph 118.
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`119. Crew denies that it was “required” under the Agreement to continue providing
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`reconciliation services under the Agreement because, among other bases, NYCEM’s improper
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`termination of the Agreement and withholding of compensation from Crew constitute material
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`breaches that excused any further performance by Crew. Crew admits that it nonetheless
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`cooperated with NYCEM in good faith—consistent with Crew’s conduct throughout the
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`Program—and performed reconciliation services. Crew denies the remainder of the allegations
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`contained in Paragraph 119.
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`FILED: NEW YORK COUNTY CLERK 04/15/2024 04:05 PM
`NYSCEF DOC. NO. 89
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`INDEX NO. 162516/2023
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`RECEIVED NYSCEF: 04/15/2024
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`120. Crew admits that NYCEM alleged certain deficiencies in its reconciliation,
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`respectfully refers the Court to the letter referenced in Paragraph 120 and otherwise denies the
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`remaining allegations contained in Paragraph 120.
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`121. Crew admits that NYCEM claims to have made available to the Commissioner
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`certain documents and that the same were provided to Crew. Crew denies the remaining allegations
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`contained in Paragraph 121.
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`122. With respect to the allegations contained in Paragraph 122, Crew denies the
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`allegation that January 22, 2021 was the first time Crew requested that NYCEM compel
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`HotelEngine to participate in the administrative proceeding. In fact, the request was made on
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`October 29, 2020 in its Notice of Dispute, as contemplated by the governing rules. (See NYSCEF
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`Doc. No. 48, p. 13, Section IV(5).) The January 22, 2021 letter was a follow-up request on several
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`matters in light of NYCEM’s inaction in response to the Notice of Dispute. (NYSCEF Doc. No.
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`52.) Crew admits that NYCEM “notified HotelEngine of Crew’s request” to participate in the
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`administrative proceeding and failed to actually request or compel such participation from
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`HotelEngine, as required under the rules, and that HotelEngine did not voluntarily join the
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`administrative proceeding. Crew denies the remaining allegations contained in Paragraph 122.
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`123. Crew admits that the Agency Head Determination was issued and respectfully
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`refers the Court to that document for a true and accurate reflection of its contents. Crew denies the
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`remaining allegations contained in Paragraph 123. By way of further response, Crew denies that
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`the then-Commissioner of NYCEM, Deanne Criswell, adequately and rationally considered the
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`record before her in reaching the Agency Head Determination.
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`FILED: NEW YORK COUNTY CLERK 04/15/2024 04:05 PM
`NYSCEF DOC. NO. 89
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`INDEX NO. 162516/2023
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`RECEIVED NYSCEF: 04/15/2024
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`124. Crew admits that it filed a Notice of Claim on May 19, 2021. Crew denies the
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`remaining allegations contained in Paragraph 124 and respectfully refers the Court to the
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`documents referenced therein for a true and accurate reflection of their contents.
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`125. Crew admits that it timely filed its CDRB Petition as alleged in Paragraph 125.
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`126. Crew admits that the parties, including representatives of Hotel Engine, engaged in
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`conferences before an Administrative Law Judge to discuss settlement. Crew further admits that
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`the dispute with NYCEM was not settled.
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`127. Crew admits that, based on NYCEM’s improper refusal to include HotelEngine in
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`the administrative action, Crew filed a lawsuit against HotelEngine in Delaware federal court and
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`engaged in discovery as part of that action, including subpoenas directed to various New York
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`City departments. Crew further states that as a result of the Delaware federal court action, Crew
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`obtained highly relevant documents that should have been, but were not, produced by NYCEM in
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`the administrative proceeding, notwithstanding NYCEM’s discovery obligations and Crew’s
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`express requests. Crew admits that it took a limited 30(b)(6) deposition of NYCEM. To the extent
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`a further response is required, Crew denies the remaining allegations contained in Paragraph 127.
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`128. Crew admits that it filed a lawsuit against NYCEM sounding in tortious
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`interference and pending under Index No. 650506/2020, as alleged in Paragraph 128.
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`129. Crew admits the allegations contained in Paragraph 129.
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`130. Crew admits that it filed its Reply on November 15, 2022, which included certain
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`exhibits not previously part of the record, as alleged in Paragraph 130. As explained in Petitioner’s
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`Response to NYCEM’s Objection to Reply Exhibits (NYSCEF Doc. No. 62), the majority of these
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`additional exhibits were not part of the record because NYCEM had failed to produce them in the
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`FILED: NEW YORK COUNTY CLERK 04/15/2024 04:05 PM
`NYSCEF DOC. NO. 89
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`INDEX NO. 162516/2023
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`RECEIVED NYSCEF: 04/15/2024
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`administrative proceeding and Crew only obtained them through the Delaware federal litigation
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`after the Agency Head and Comptroller proceedings had already concluded.
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`131. Crew admits that on December 8, 2022, NYCEM filed an objection to the exhibits
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`as outside of the record, to which Crew responded on January 12, 2023. Crew denies that the
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`Reply exhibits that NYCEM objected to are correctly listed in Paragraph 131 as NYSCEF Doc.
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`No. 54 (not 53) is a document that was excluded from the record.
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`132. Crew admits the allegations contained in Paragraph 132.
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`133. Crew admits the allegations contained in Paragraph 133.
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`134. Crew admits the allegations contained in Paragraph 134.
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`135. Crew admits that the Board issued its Determination on September 1, 2023. Crew
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`denies the remaining allegations contained in Paragraph 135 to the extent they allege that the
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`Board’s Determination was lawful, rational and/or should be upheld.
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`136. Crew denies the allegations contained in Paragraph 136 to the extent it provides a
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`characterization of the Board’s Determination, including to the extent they allege that the Board’s
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`Determination was lawful, rational and/or should be upheld. Crew respectfully refers the Court to
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`the Board’s Determination for an accurate reflection of its contents and respectfully refers the
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`Court to Crew’s Verified Petition, briefing and exhibits to demonstrate the material defects in the
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`Determination that require its annulment and reversal.
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`137. Crew denies the allegations contained in Paragraph 137 to the extent it provides a
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`characterization of the Board’s Determination, including to the extent they allege that the Board’s
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`Determination was lawful, rational and/or should be upheld. Crew respectfully refers the Court to
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`the Board’s Determination for an accurate reflection of its contents and respectfully refers the
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`FILED: NEW YORK COUNTY CLERK 04/15/2024 04:05 PM
`NYSCEF DOC. NO. 89
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`INDEX NO. 162516/2023
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`RECEIVED NYSCEF: 04/15/2024
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`Court to Crew’s Verified Petition, briefing and exhibits to demonstrate the material defects in the
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`Determination that require its annulment and reversal.
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`138. Crew denies the allegations contained in Paragraph 138 to the extent it provides a
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`characterization of the Board’s Determination, including to the extent they allege that the Board’s
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`Determination was lawful, rational and/oe should be upheld. Crew respectfully refers the Court
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`to the Board’s Determination for an accurate reflection of its contents and respectfully refers the
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`Court to Crew’s Verified Petition, briefing and exhibits to demonstrate the material defects in the
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`Determination that require its annulment and reversal.
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`139. Crew denies the allegations contained in Paragraph 139 to the extent it provides a
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`characterization of the Board’s Determination, including to the extent they allege that the Board’s
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`Determination was lawful, rational and should be upheld. Crew respectfully refers the Court to
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`the Board’s Determination for an accurate reflection of its contents and respectfully refers the
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`Court to Crew’s Verified Petition, briefing and exhibits to demonstrate the material defects in the
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`Determination that require its annulment and reversal.
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`140. Crew denies the allegations contained in Paragraph 140 to the extent it provides a
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`characterization of the Board’s Determination, including to the extent they allege that the Board’s
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`Determination was lawful, rational and should be upheld. Crew respectfully refers the Court to
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`the Board’s Determination for an accurate reflection of its contents and respectfully refers the
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`Court to Crew’s Verified Petition, briefing and exhibits to demonstrate the material defects in the
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`Determination that require its annulment and reversal.
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`141. Crew denies the allegations contained in Paragraph 141 to the extent it provides a
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`characterization of the Board’s Determination, including to the extent they allege that the Board’s
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`Determination was lawful, rational and should be upheld. Crew respectfully refers the Court to
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`FILED: NEW YORK COUNTY CLERK 04/15/2024 04:05 PM
`NYSCEF DOC. NO. 89
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`INDEX NO. 162516/2023
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`RECEIVED NYSCEF: 04/15/2024
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`the Board’s Determination for an accurate reflection of its contents and respectfully refers the
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`Court to Crew’s Verified Petition, briefing and exhibits to demonstrate the material defects in the
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`Determination that require its annulment and reversal.
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`142. Crew denies the allegations contained in Paragraph 142.
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`WHEREFORE, Crewfacilities.com, LLC respectfully requests that the Court enter
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`judgment in its favor as requested in the Verified Petition and award such other relief as the Court
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`may deem just and proper.
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`Dated: April 15, 2024
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`Respectfully submitted,
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`By:
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`Joseph L. Clasen
`Ian T. Clarke-Fisher
`Janet Kljyan
`Robinson & Cole LLP
`666 Third Avenue
`New York, New York 10017
`Tel: (212) 451-2900
`E-mail: jclasen@rc.com
`E-mail: iclarke-fisher@rc.com
`E-mail: jkljyan@rc.com
`Attorneys for the Petitioner
` CREWFACILITIES.COM, LLC
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`FILED: NEW YORK COUNTY CLERK 04/15/2024 04:05 PM
`NYSCEF DOC. NO. 89
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`INDEX NO. 162516/2023
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`RECEIVED NYSCEF: 04/15/2024
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`VERIFICATION
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`I, Ian T. Clarke-Fisher, an attorney admitted to practice in the courts of the State of New
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`York and not a party to this proceeding, hereby affirm the following:
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`I am a partner with the law firm of Robinson & Cole LLP and an attorney of record for
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`Petitioner in this proceeding. I have read the annexed Verified Reply to NYCEM’s Statement of
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`Pertinent and Material Facts Set Forth in its Verified Answer and know its contents to be true
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`based upon my knowledge, except as to the matters that are stated to be based upon information
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`and belief, which I believe to be true based upon facts, records and other pertinent information
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`contained in files maintained by my office.
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`I make the foregoing affirmation because Petitioner is not located in the county where I
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`maintain my office.
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`I affirm this 15th day of April, 2024, under the penalties of perjury under the laws of New
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`York, which may include a fine or imprisonment, that the foregoing is true, and I understand that
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`this document may be filed in this action or proceeding in a court of law.
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` Ian T. Clarke-Fisher
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