- FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`
`NYSCEF DOC. N0. 23
`‘
`NYSCEF DOC. NO. 23
`
`INDEX NO. 652867/2015
`INDEX NO- 652867/2015
`
`
`
`
`
`R«C«IV«D WYSCEF: 02/10/2017
`RECEIVED NYSCEF: 02/10/2017
`
`
`
`EXHIBIT A
`
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`
`NYSCEF DOC. N0. 23
`‘
`NYSCEF DOC. NO. 23
`
`INDEX NO. 652867/2015
`INDEX NO- 652867/2015
`
`
`
`
`
`R«C«IV«D WYSCEF: 02/10/2017
`RECEIVED NYSCEF: 02/10/2017
`
`
`
`EXHIBIT A
`
`
`
`
`
`INDEX NO. 652867/2015
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`
`INDSX NO 652867/2015
`FILED: NEW YORK COUNTY CLERK 022017 07:12 PM
`
`
`
`
`
`
`
`-
`-
`mm M INDEX YNO_L6§2§§7f59§317
`NYSCEF DOC. NO. 23
`RECEIVED NYSCEF: 02/10/2017
`NNYSCEF DOC. NO.
`1
`RECEIVED DNYSYCSECF: 08/18/2015
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`—————————————————————————————— X
`
`299 THIRD SA, LLC, 299 THIRD SI, LLC and
`299 SMNA L.P.,
`
`Plaintiffs,
`
`Index No. 6528 67/2015
`
`.
`:
`'
`
`Date Index No.
`Purchased: 08/_l_5__/2015
`
`EMA/19$
`
`Plaintiff designates New York County
`as the place of trial.
`
`The basis of the venue is defendant’s
`
`address at 297 Third Avenue, New
`York, New York.
`
`— against -
`
`:
`MOSHE ZILHA, ARYE NUSSBAUM, and BAGELS :
`ON 3RD, INC. d/b/a PICK-A-BAGEL,
`
`' :
`
`:
`:
`—————————————————————————————— x
`
`Defendants.
`
`TO THE ABOVE NAMED DEFENDANTS:
`
`You are hereby summoned to answer the complaint in this action and to serve a
`
`copy of your answer, or, if the complaint is not served with this Summons, to serve a Notice of
`
`Appearance, on plaintiff’s attorneys within twenty (20) days afier 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
`
`appear or answer, judgment will be taken against you by default for the relief demanded in the
`
`complaint.
`
`HF 10265232v.1
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`
`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
`
`INDEX NO. 652867/2015
`INDEX NO~ 652867/2015
`
`
`
`
`
`RaCaIVaD VYSCEF: 02/10/2017
`RECEIVED NYSCEF: 02/10/2017
`
`
`
`Dated: New York, New York
`
`August 17, 2015 By:
`
`Raymond N.
`Richard Y. 1m
`
`
`annigan
`
`Attorneys For Plaintiffs
`2 Park Avenue
`
`New York, NY 10016-9301
`(212) 592-1400
`
`TO: MOSHE ZILHA
`297 Third Avenue
`
`New York, NY 10010
`
`ARYE NUS SBAUM
`
`V
`297 Third Avenue
`New York, NY 10010
`
`BAGELS ON 3RD, INC. d/b/a PICK-A~BAGEL
`297 Third Avenue
`
`New York, NY 10010
`
`HF 10265232v.1
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`
`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
`
`INDEX NO. 652867/2015
`INDEX NO~ 652867/2015
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF: 02/10/2017
`RECEIVED NYSCEF: 02/10/2017
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF NEW YORK
`______________________________ X
`
`299 THIRD SA, LLC, 299 THIRD SI, LLC and
`299 SMNA L.P.,
`
`Plaintiffs,
`
`- against -
`
`MOSHE ZILHA, ARYE NUSSBAUM, and BAGELS
`ON 3RD, INC. d/b/a PICK-A-BAGEL,
`
`.
`;
`
`:
`
`Defendants.
`
`______________________________ ;,
`
`IndexNo. 652867/2015
`
`VERIFIED COMPLAINT
`
`Plaintiffs 299 THIRD SA, LLC, 299 THIRD SI, LLC and 299 SMNA L.P.
`
`(together, “Plaintiff’), by their attorneys, Herrick, Feinstein LLP, as and for their Verified
`
`Complaint against defendants MOSHE ZILHA, ARYE NUSSBAUM, and BAGELS ON
`
`3RD, INC., d/b/a PICK-A-BAGEL (collectively, “Defendants” or “Tenant”), respectfully
`
`allege as follows:
`
`W
`
`1.
`
`This action is brought by Plaintiff, joint owners of 297 Third Avenue,
`
`New York, New York (the “Property”), seeking,
`
`inter alia, a declaratory judgment
`
`declaring (a) that Defendants’ lease, dated August 25, 2006,
`
`is the only valid and
`
`controlling agreement between the parties, and (b) that two purported “amendments” —-
`
`claimed by defendants to reduce the monthly rent and extend the term of the lease to
`
`2021 ~— are nothing more than a sham,
`
`two pieces of paper which are,
`
`in fact,
`
`counterfeits, wholly unauthorized by predecessor landlord, Fan and Associates (“Prior
`
`Landlord”) and invalid.
`
`HF 10196365v.2
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`
`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
`
`INDEX NO. 652867/2015
`INDEX NO' 652867/2015
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF: 02/10/2017
`RECEIVED NYSCEF: 02/10/2017
`
`
`
`2.
`
`As set forth in detail below, on or about April 21, 2015, Plaintiff
`
`purchased the Property from Prior Landlord, a domestic partnership comprised of only
`
`two principals, Mr. Yang Shan Fan and Ms. Chin Tao Chang. Mr. Fan and Ms. Chang
`
`are husband and wife and the only two individuals with authority to bind Prior Landlord.
`
`3.
`
`As set forth in detail below, pursuant to the express terms of the actual
`
`lease between the parties, the term of the lease ends on August 31, 2016. See Lease,
`
`Exhibit A. Further, pursuant to that correct and applicable lease, monthly rent for the
`
`period from September 1, 2012 through August 31, 2015, is set at $13,300.
`
`4.
`
`After Plaintiff purchased the Property, Tenant failed to pay the full
`
`$13,300 due, under the existing lease, and instead has delivered rent checks in the amount
`
`of $1 1,000 per month (which Plaintiff deposited under protest).
`
`5.
`
`When sent a demand from Plaintiff for unpaid rent, Defendants responded,
`
`claiming that (a) one of these sham “amendments” somehow bound Plaintiff to accept
`
`$11,000 per month instead, of the $13,300 actually due, and that (b) a second sham
`
`“amendment” somehow extended the term of the lease, for five years, so that the lease
`
`term terminates on August 31, 2021, rather than in 2016, as set forth in actual lease
`
`between the parties.
`
`6.
`
`Putting aside that Defendants’ position is wholly inconsistent ——— in that
`
`the sham “amendment,” upon which Defendants relies on in paying $11,000 a month,
`
`states that
`
`the term ends in 2016 - those two sham documents are each wholly
`
`unauthorized and void.
`
`7.
`
`As plead forth below, at no point in time did Prior Landlord consent to any
`
`amendment or modification of the lease to (a) reduce the amount of rent, or (b) extend the
`
`HF 10l96365v.2
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`
`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
`
`INDEX NO. 652867/2015
`INDEX NO' 652867/2015
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF: 02/10/2017
`RECEIVED NYSCEF: 02/10/2017
`
`lease term beyond August 31, 2016, in any manner whatsoever. The sham amendments
`
`were not signed or authorized by any partner in Fan & Associates.
`
`8.
`
`Instead, it appears that they were purportedly signed by “George Chen
`
`Chih Fan,” an individual, who is not authorized to bind the Prior Landlord. Plaintiff has
`
`confirmed that George Chen Chih Fan has no interest in Fan & Associates,
`
`is not a
`
`partner, holds no office, nor any position within Fan & Associates, and was never
`
`authorized by Fan and Associates, or its principals, to execute, or enter into, any type of
`
`amendment to the Lease, including the sham “amendments” upon which Defendants rely.
`
`9.
`
`Simply put, Fan & Associates is not the party to those documents, never
`
`executed those “amendments,” and accordingly they are not effective or binding upon
`
`Plaintiff.
`
`10.
`
`Moreover, at no time did Defendants ever reach out to the only authorized
`
`principals of Fan & Associates, Ms. Fan or her husband, to obtain Prior Landlord’s
`
`agreement to the sham “amendments.”
`
`ll.
`
`Even worse, Prior Landlord was not represented by counsel in connection,
`
`with the purported execution of the sham “amendments.” Rather, upOn information and
`
`belief, the sham “amendment,” purportedly extending the lease term, was prepared by
`
`Defendants’ counsel and presented to George Chen Chih Fan for signature, who had no
`
`authority to bind, and the true principals of Prior Landlord with authority to bind Prior
`
`Landlord and its counsel were intentionally circumvented.
`
`12.
`
`Accordingly, this action seeks, inter alia, a declaration that (a) the claimed
`
`“amendments” are invalid, unenforceable and in no way binding upon Plaintiffs, and
`
`HF lOl96365v.2
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`
`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
`
`652867/2015
`INDEX NO. 652867/2015
`INDEX NO~
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF:
`02/10/2017
`RECEIVED NYSCEF: 02/10/2017
`
`
`
`(b) that the lease dated August 25, 2006 is the only valid and controlling agreement
`
`between Landlord and Tenant.
`
`13.
`
`Finally, in the alternative, Defendants are estopped, as matter of law, from
`
`asserting that the lease extends to 2021.
`
`14.
`
`On the one hand, Defendants claim that they were entitled to pay a lesser
`
`rent, of $11,000 per month, based upon the first of the sham “amendments.” See Exhibit
`
`B. However, when one reads this document -—-— which is a sham — it states that the lease
`
`term ends in 2016. Indeed, we have attached to this Complaint bank checks submitted by
`
`Defendants in the unbroken period between November 2010 and April 2015. See Exhibit
`
`C. Each and every one of those checks is in the amount of $11,000 —— the exact amount
`
`indicated in the first sham “amendment” which states the lease term ends in 2016.
`
`15.
`
`This is wholly inconsistent with the second sham “amendment,” upon
`
`which Defendants rely, which has this 2021 termination date. See Exhibit D. That
`
`amendment
`
`includes an entirely different —- and higher —— rent schedule which
`
`Defendants have never paid. That is, while each of these two documents are Shams,
`
`Defendants, through their own actions in paying $11,000 a month, for 54 consecutive
`
`months, are estopped from relying on the second sham document that purports to extend
`
`the lease term until 2021. Defendants’ positions are inconsistent and both cannot be
`
`correct at the same time. The $11,000 monthly payments estop Defendants, as a matter
`
`of law, from asserting that the lease extends to 2021.
`
`W
`
`16.
`
`At all times relevant to this action, plaintiff 299 THIRD SA, LLC was and
`
`is a limited liability company duly organized and validly existing pursuant to the laws of
`
`HF 10196365v.2
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`
`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
`
`INDEX NO. 652867/2015
`INDEX NO~ 652867/2015
`
`
`
`
`
`RaCaIVaD VYSCEF: 02/10/2017
`RECEIVED NYSCEF: 02/10/2017
`
`
`
`the State of Delaware and having a principal place of business at 0/0 SMA Equities, 185
`
`Great Neck Road, Suite 250, Great Neck, New York 11021.
`
`17.
`
`At all times relevant to this action, plaintiff 299 THIRD SI, LLC was and
`
`is a limited liability company duly organized and validly existing pursuant to the laws of
`
`the State of Delaware and having a principal place of business at 0/0 SMA Equities, 185
`
`Great Neck Road, Suite 250, Great Neck, New York 11021.
`
`18.
`
`At all times relevant to this action, plaintiff 299 SMNA L.P. was and is a
`
`Limited Partnership duly organized and validly existing pursuant to the laws of the State
`
`of New York and having a principal place of business at 0/0 SMA Equities, 185 Great
`
`Neck Road, Suite 250, Great Neck, New York 11021.
`
`19.
`
`Plaintiffs 299 Third SA, LLC, 299 Third SI, LLC and 299 SMNA L.P. are
`
`the owners of the property as tenants—in—common.
`
`20.
`
`Upon information and belief, defendant MOSHE ZILHA (“Defendant
`
`ZILHA”) was at all times mentioned herein and still is a natural person who was and is
`
`an officer, director and shareholder of Defendant BAGELS ON 3RD, INC., with his
`
`place of business located at 297 Third Avenue, New York, New York.
`
`21.
`
`Upon information and belief, defendant ARYE NUSSBAUM (“Defendant
`
`NUSSBAUM”) was at all times mentioned herein and still is a natural person who was
`
`and is an officer, director and shareholder of the Defendant BAGELS ON 3RD INC.,
`
`with his place of business located at 297 Third Avenue, New York, New York.
`
`22.
`
`Upon information and belief, defendant BAGELS ON 3RD INC. d/b/a
`
`PICK A BAGEL (Defendant “BAGELS ON 3RD”), at all times relevant to this action,
`
`was and is a domestic business corporation duly organized and validly existing pursuant
`
`HF 10196365v.2
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`
`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
`
`INDEX NO. 652867/2015
`INDEX NO' 652867/2015
`
`
`
`
`
`RECEIVED NYSCEF: 02/10/2017
`RaCaIVaD VYSCEF: 02/10/20i7
`
`
`
`to the laws of the State of New York in 1994, with its principal place of business located
`
`at 297 Third Avenue, New York, New York.
`
`FACTS COMMON TO ALL CAUSES OF ACTION
`
`23.
`
`Plaintiff is comprised of the fee owners as tenants in common of the
`
`Property which is the subject of this action and known as and located at 297 Third
`
`Avenue, New York, New York 10010.
`
`24.
`
`On or about April 21, 2015, Plaintiff purchased the Property from former
`
`owner and Prior Landlord.
`
`In connection with the purchase, Plaintiff received an
`
`assignment of the Lease and an assignment of all causes of action from Prior Landlord.
`
`25.
`
`Upon information and belief, at all times mentioned herein, Prior Landlord
`
`was a domestic partnership comprised of two partners, Mr. Yang Shang Fan and his wife
`
`Ms. Chin Tao Chang residing at 62-36 83rd Place, Middle Village, New York 11379—
`
`1944.
`
`26.
`
`Upon information and belief, at all times mentioned herein, George Chen
`
`Chih Fan was, and is, the son of Yang Shang Fan and Chin Tao Chang, and had no
`
`interest in the partnership or the Property, and did not have any written or other authority
`
`to act as agent for either his parents, individually, or as partners of Fan and Associates, or
`
`the partnership Fan and Associates itself.
`
`27.
`
`On or about August 28, 2006, Prior Landlord, and an entity holding itself
`
`out as Pick-A-Bagel On Third Inc., named as the Tenant, entered into a written lease for a
`
`store and basement (the “Demised Premises”) for a term of ten (10) years commencing
`
`September 1, 2006 (the “Lease”). A copy of the Lease is annexed as Exhibit “A” and
`
`incorporated herein by reference.
`
`HF 1019636Sv.2
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`
`NYSCEFIDOC. NO. 23
`NYSCEF DOC. NO. 23
`
`652867/2015
`INDEX NO. 652867/2015
`INDEX NO~
`
`
`
`
`
`02/10/2017
`R«.C«.IV«.D \IYSCEF:
`RECEIVED NYSCEF: 02/10/2017
`
`
`
`28.
`
`Section 48 of the Lease sets forth the basic annual rent to be paid by the
`
`Tenant during the term of the Lease as follows:
`
`Term
`
`Rent
`
`09/01/2006 —— 08/31/2007
`09/01/2007 — 08/31/2008
`09/01/2008 - 08/31/2009
`09/01/2009 ~ 08/31/2010
`09/01/2010 — 08/31/2011
`09/01/2011 — 08/31/2012
`09/01/2012 — 08/31/2013
`09/01/2013 — 08/31/2014
`09/01/2014 - 08/31/2015
`09/01/2015 - 08/31/2016
`
`$11,000 per month
`$11,000 per month
`$11,000 per month
`$12,100 per month
`$12,100 per month
`$12,100 per month
`, $13,300 per month
`$13,300 per month
`$13,300 per month
`$13,699 per month
`
`29.
`
`Pursuant to Section 49 of the Lease, Tenant is also required to pay, as
`
`additional rent, 35% of all increases in real estates taxes starting on January 1, 2007:
`
`Tenant agrees to pay as additional rent 35% of any and all
`increases in real estate taxes starting on January 1, 2007.
`(Increase is being calculated ~ base year is the previous
`year.) Property tax increase will be paid in one year.
`
`30.
`
`On or about May 1, 2015, Landlord received its first rent check from
`
`Tenant in the amount of $11,000, which was not in accordance With the amount due
`
`under the Lease.
`
`31.
`
`Accordingly, on or about May 8, 2015, Landlord notified Tenant that
`
`Tenant was in default of the Lease for failing to pay the appropriate amount of monthly
`
`rent under the Lease. The letter further provided that the lease term ends in 2016
`
`pursuant to the Lease.
`
`32.
`
`In response, Tenant presented to Plaintiff the two sham amendments,
`
`asserting that the rent was allegedly reduced to $11,000 per month and that the lease term
`
`was purportedly extended to 2021.
`
`HF 10196365v.2
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`
`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
`
`652867/2015
`INDEX NO. 652867/2015
`
`INDEX NO~
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF:
`02/10/2017
`RECEIVED NYSCEF: 02/10/2017
`
`33.
`
`Neither of the two sham amendments, however, were ever presented to
`
`either Mr. Yang Shan Fan or Ms. Chin Tao Chang for approval,
`
`the only persons
`
`authorized to execute any agreements on behalf of Prior Landlord.
`
`34.
`
`The first sham amendment, Tenant has put forth, provides that Landlord is
`
`purportedly “waiving” any past rent due and allegedly will reduce the rent to $11,000 per
`
`month for the period beginning November 2010 through the remainder of the Lease term
`
`to November 1, 2016 (the “2010 Paper”):
`
`WE AS THE LANDLORD OF 297 3rd AVE NY NY
`
`10010 ARE HERE BY [sic] WAIVING ANY BALANCE
`OF RENT DUE TO US BY “PICK A BAGEL ON 3rd” IN
`GOOD FAITH AND IN EFFORT TO HELP WITH THE
`
`FINENCIAL [sic] SITUATION OF OUR TENANT.
`
`WE WILL REDUCE THE RENT TO $ll000.00 PER
`MONTH AND IT WILL NOT INCREASE FOR THE
`
`TERM LEFT ON THE LEASE. (FROM ll—Ol—2010 TO
`11/01/2016)
`
`/s/ GEORGE FAN
`
`(AS OFFICER OF FAN ASSOCIATES)
`
`ls/ MOSHE ZILHA
`
`(AS OWNER OF “PICK A BAGEL ON 3RD”)
`
`See Exhibit B.
`
`35.
`
`The second sham amendment, Tenant has put forth, states that the term of
`
`the Lease has purportedly been extended to August 31, 2021, and sets forth a completely
`
`different, and higher, annual rent schedule the term of the Lease as follows:
`
`Term
`
`Rent
`
`09/01/2010 -— 08/31/2011
`09/01/2011 — 08/31/2012
`09/01/2012 — 08/31/2013
`09/01/2013 — 08/31/2014
`09/01/2014 — 08/31/2015
`09/01/2015 —- 08 /31/2016
`
`8
`
`$12,100.00 per month
`$12,100.00 per month
`$13,310.00 per month
`$13.310.00 per month
`$13,310.00 per month
`$14,641.00 per month
`
`HF 10196365v.2
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`
`NYSCEF' DOC . NO. 23
`NYSCEF DOC. NO. 23
`
`INDEX NO. 652867/2015
`INDEX NO~ 652867/20l5
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF: 02/10/2017
`RECEIVED NYSCEF: 02/10/2017
`
`09/01/2016 — 08/31/2017
`09/01/2017 -— 08/31/2018
`09/01/2018 —08/31/2019
`09/01/2019 -— 08/31/2020
`09/01/2020 — 08/31/2021
`
`$14,641.00 per month
`$14,641.00 per month
`$16,105.10 per month
`$16,105.10 per month
`$16,105.10 per month
`
`See Exhibit D.
`
`36. Moreover, neither of the two purported “amendments” were ever signed
`
`by, or otherwise approved by, Mr. Fan or Ms. Chang and they are nothing more than a
`
`sham, two pieces of paper which are, in fact, counterfeits, wholly unauthorized by Prior
`
`Landlord and invalid.
`
`37.
`
`Instead, it appears that they were purportedly signed by “George Chen
`
`Chih Fan,” an individual, who is not authorized to bind the Prior Landlord. Plaintiff has
`
`confirmed that George Chen Chih Fan has no interest in Fan & Associates, is not a
`
`partner, holds no office, nor any position within Fan & Associates, and was never
`
`authorized by Fan and Associates, or its principals, to execute, or enter into, any type of
`
`amendment to the Lease, including the sham “amendments” upon which Defendants rely.
`
`38.
`
`Landlord brings this action for,
`
`inter alia, a declaratory judgment
`
`declaring that the Lease is the only valid and controlling agreement between Landlord
`
`and Tenant, and that the first sham amendment and second sham amendment are invalid,
`
`and for damages based on Tenant’s breach.
`
`AS AND FOR A FIRST CAUSE OF ACTION
`
`(Breach of Contract)
`
`39.
`
`Plaintiff repeats and re—alleges each and every allegation contained in
`
`paragraphs 111] 1-38 herein with equal force and effect as if more fiilly set forth at length
`
`herein.
`
`40.
`
`The Lease constitutes a contract between Landlord and Tenant.
`
`HF 10196365v.2
`
`9
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`
`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
`
`652867/2015
`INDEX NO. 652867/2015
`INDEX NO~
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF:
`02/10/2017
`RECEIVED NYSCEF: 02/10/2017
`
`
`
`41.
`
`Plaintiff has complied with all the terms and conditions of the Lease.
`
`42.
`
`Tenant has breached the terms of the Lease by failing to make its monthly
`
`payments of rent in the proper amounts since November 2010 pursuant to Section 48 of
`
`the Lease.
`
`43.
`
`Tenant has further breached the terms of the Lease by failing to make its
`
`annual payments of its share of the increased real estate taxes from January 2009 through
`
`present pursuant to Section 49 of the Lease.
`
`44.
`
`Plaintiff has suffered damages as a direct result of Tenant’s breaches, and
`
`is entitled to damages in an amount to be determined at trial.
`
`45.
`
`By reason of the foregoing,
`
`in addition to damages, Plaintiff is also
`
`entitled to ajudgment of the Court declaring the Lease to be terminated.
`
`AS AND FOR A SECOND CAUSE OF ACTION
`
`(Declaratory Judgment)
`
`46.
`
`Plaintiff repeats and re—alleges each and every allegation contained in
`
`paragraphs 1“] 1-45 herein with equal force and effect as if more fully set forth at length
`
`herein.
`
`47.
`
`Mr. Fan and Ms. Chang were, and are, the only persons authorized to
`
`execute any agreements on behalf of Prior Landlord.
`
`48.
`
`The Lease is the only agreement executed or authorized by Prior Landlord
`
`and is therefore the only applicable agreement with Tenant that is valid and enforceable.
`
`49.
`
`The two sham amendments that were allegedly signed by Chen Chih Fan
`
`were never presented to, nor approved, by either Mr. Fan or Ms. Chang.
`
`50.
`
`George Chen Chih Fan had, and has, no interest in Fan & Associates, is
`
`not a partner, holds no office, nor any position within Fan & Associates, and was never
`
`HF lOl96365v.2
`
`10
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`
`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
`
`INDEX NO. 652867/2015
`INDEX NO~ 652867/2015
`
`
`
`
`
`RaCaIVaD VYSCEF: 02/10/2017
`RECEIVED NYSCEF: 02/10/2017
`
`
`
`authorized by Fan and Associates, or its principals, to execute, or enter into, any type of
`
`amendment to the Lease, including the sham “amendments” upon which Defendants rely,
`
`and is therefore not authorized to bind Prior Landlord.
`
`51.
`
`There now exists a justiciable controversy ripe for determination for which
`
`there is no adequate remedy at law as to whether the Lease is the only valid and
`
`enforceable agreement among the parties.
`
`52.
`
`By reason of the foregoing, Plaintiff is now entitled to a judgment of this
`
`Court declaring that the Lease is the only valid and enforceable agreement among the
`
`parties, and that the sham amendments purportedly signed by George Chen Chih Fan are
`
`not binding upon Plaintiff and invalid and of no force and effect.
`
`AS AND FOR A THIRD CAUSE OF ACTION
`
`(Estoppel)
`
`53.
`
`Plaintiff repeats and re-alleges each and every allegation contained in
`
`paragraphs 11‘“ 1-52 herein with equal force and effect as if more fully set forth at length
`
`herein.
`
`54.
`
`In the alternative, Defendants are estopped, as matter of law,
`
`from
`
`asserting that the lease extends to 2021 based on the second sham amendment.
`
`55.
`
`On the one hand, Defendants claim that they were entitled to pay a lesser
`
`rent, of $11,000 per month, based upon the first sham amendments. However, when one
`
`reads this document -— which is a sham ~— it states that the lease term ends in 2016.
`
`56.
`
`Defendants made 54 consecutive monthlyrent payments in the amounts of
`
`$11,000 per month —— the exact amount indicated in the first sham “amendment” which
`
`states the lease term ends in 2016-— during the unbroken period between November 2010
`
`and April 2015. See Exhibit C.
`
`11
`
`HF 10196365v.2
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`
`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
`
`652867/2015
`INDEX NO. 652867/2015
`INDEX NO~
`
`
`
`
`
`R«.C«.IV«.D \lYSCEF:
`02/10/2017
`RECEIVED NYSCEF: 02/10/2017
`
`
`
`57.
`
`This is wholly inconsistent with the second sham “amendment,” upon
`
`which Defendants also rely, which purports to have a 2021 termination date. That
`
`amendment
`
`includes an entirely different
`
`~—— and higher - rent schedule which
`
`Defendants have never paid.
`
`58.
`
`That
`
`is, while each of these two documents are Shams, Defendants,
`
`through their own actions in paying $11,000 a month, for 54 consecutive months, are
`
`estopped from relying on the second sham document that purports to extend the lease
`
`term until 2021. Defendants’ positions are inconsistent and both cannot be correct at the
`
`same time.
`
`59.
`
`Based on the foregoing, in the event that the Court does not declare the
`
`Lease to be the only controlling agreement among the parties and does not further declare
`
`that the two sham amendments to be invalid and of no force and effect, then the $11,000
`
`monthly payments made by Defendants estop them, as a matter of law, from asserting
`
`that the Lease extends to 2021.
`
`AS AND FOR A FOURTH CAUSE OF ACTION
`
`(Declaratory Judgment)
`
`60.
`
`Plaintiff repeats and re—alleges each and every allegation contained in
`
`paragraphs 111} 1-59 herein with equal force and effect as if more fully set forth at length
`
`herein.
`
`61.
`
`The Lease, the first sham amendment and the second sham amendment
`
`name a non-existent corporation named PICK-A-BAGEL ON THIRD INC., as the tenant
`
`purportedly operating its business located at the Property, and were signed by Defendant
`
`ZILHA and/or Defendant NUSSBAUM, individually, neither of whom had any authority
`
`HF 10] 96365v.2
`
`12
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`
`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
`
`INDEX NO. 652867/2015
`INDEX NO~ 652867/2015
`
`
`
`
`
`RECEIVED NYSCEF: 02/10/2017
`R«.C«.IV«.D \IYSCEF: 02/10/2017
`
`
`
`to sign on behalf of a non—existent corporation, and without any indication that Defendant
`
`ZILHA and Defendant NUSSBAUM were signing in a representative capacity.
`
`62.
`
`There now exists a justiciable controversy ripe for determination for which
`
`there is no adequate remedy at law as to whether Defendant ZILHA and Defendant
`
`NUSSBAUM are personally liable for the payment of the rent owed under the Lease and
`
`the alleged amendments and the performance of all obligations under the Lease as a result
`
`of the fact that they signed the Lease, the first sham amendment and the second sham
`
`amendment individually and/or on behalf of a non-existent corporation and were at all
`
`times mentioned herein improperly conducting business under the name PICK-A~
`
`BAGEL ON THIRD INC.
`
`63.
`
`By reason of the foregoing, Plaintiff are entitled to a judgment of this
`
`Court declaring that Defendant ZILHA and Defendant NUSSBAUM are personally liable
`
`for the rent to be paid under the Lease and the alleged amendments and the performance
`
`of all obligations under the Lease and the alleged amendments as a result of the fact that
`
`they signed the Lease and the alleged amendments individually and/or on behalf of a non—
`
`existent corporation and were at all
`
`times mentioned herein improperly conducting
`
`business under the name PICK-A-BAGEL ON THIRD INC.
`
`AS AND FOR A FIFTH CAUSE OF ACTION
`
`(Declaratory Judgment)
`
`64.
`
`Plaintiff repeat and re—allege each and every allegation contained in
`
`paragraphs M 1-63 herein with equal force and effect as if more fully set forth at length
`
`herein.
`
`65.
`
`The Lease, the first sham amendment and the second sham amendment
`
`name a non-existent corporation named PICK-A-BAGEL ON THIRD INC., as the tenant
`
`HF 10196365v.2
`
`13
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`
`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
`
`INDEX NO. 652867/2015
`INDEX NO~ 652867/2015
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF: 02/10/2017
`RECEIVED NYSCEF: 02/10/2017
`
`
`
`purportedly operating its business located at the Property and were signed by Defendant
`
`ZILHA and Defendant NUSSBAUM, individually, without any indication that Defendant
`
`ZILHA and Defendant NUSSBAUM were signing in a representative capacity.
`
`66.
`
`There now exists a justiciable controversy ripe for determination for which
`
`there is no adequate remedy at law as to whether or not the fact that the Lease and the
`
`alleged amendments were made in the name of a non—existent corporation and signed by
`
`Defendant ZILHA and Defendant NUJSSBAUM without any indication that
`
`these
`
`Defendants executed the Lease and the alleged amendments as legitimate corporate
`
`representatives, means that the Lease and the alleged amendments are all a nullity.
`
`67.
`
`By reason of the foregoing, Plaintiff are entitled to a judgment of this
`
`Court declaring that the Lease and the alleged amendments are a nullity because they
`
`were made in the name of a non-existent corporation and signed by Defendant ZILHA
`
`and Defendant NUSSBAUM individually, without any indication that these Defendants
`
`executed the Lease and the alleged amendments as legitimate corporate representatives.
`
`WHEREFORE, Plaintiff demand judgment, as follows:
`
`(A)
`
`On the First Cause of Action, awarding Plaintiff damages in an
`
`amount to be determined at trial and declaring the Lease to be terminated based on
`
`Tenant’s breaches thereof.
`
`(B)
`
`On the Second Cause of Action, declaring that the Lease is the
`
`only valid and controlling agreement between Landlord and Tenant and that the alleged
`
`amendments signed by George Chen Chih Fan are not binding upon the Plaintiff or Prior
`
`Landlord and that the alleged amendments are nullities and invalid and unenforceable.
`
`HF 10] 96365v.2
`
`14
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`
`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
`
`652867/2015
`INDEX NO. 652867/2015
`INDEX NO~
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF:
`02/10/2017
`RECEIVED NYSCEF: 02/10/2017
`
`
`
`(C)
`
`On the Third Cause of Action, estopping Tenant from relying upon
`
`the second sham amendment.
`
`(D)
`
`On the Fourth Cause of Action, declaring that Defendant ZILHA
`
`and Defendant NUSSBAUM are personally liable for the rent to be paid under the Lease
`
`and the alleged amendments and the performance of all obligations under the Lease and
`
`the alleged amendments on the grounds that they signed the Lease and the alleged
`
`amendments individually and/or on behalf of a non-existent corporation and were at all
`
`times mentioned herein improperly conducting business under the name PICK-A-
`
`BAGEL ON THIRD INC.
`
`(E)
`
`On the Fifth Cause of Action, declaring that the Lease and the
`
`alleged amendments made in the name of a non-existent corporation and signed by
`
`Defendant ZILHA and Defendant NUSSBAUM individually, without any indication that
`
`these Defendants executed the Lease and the alleged amendments as legitimate corporate
`
`representatives, is a nullity.
`
`(F)
`
`Together with such other and further relief as the Court may deem
`
`just and proper.
`
`Dated: New York, New York
`
`August 17, 2015
`
`
`
`HERRICK, FE S
`
`
`
`
`By:
`
`
`Raymond N.
`igan
`Richard Y. lm
`
`Attorneys For Plaintifiiv
`2 Park Avenue
`
`New York, NY 10016-9301
`(212) 592-1400
`
`HF 10196365v.2
`
`15
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`
`NYSCEF DOC. NO. 23
`NYSCEF DOC. NO. 23
`
`EX NO .
`652867/2015
`INDEX NO. 652867/2015
`
`IND
` \IYSCI
`
`
` 3F:
`
`
`R«.C4.IV«.D
`02/10/2017
`RECEIVED NYSCEF: 02/10/2017
`
`VERIFICATION
`
`33.:
`
`) )
`
`)
`
`STATE OF NEW YORK
`
`COUNTY OF NEW YORK
`
`SASSAN MAHFAR, .beingvdxfly sworn, deposesandissays:
`
`1.
`
`I amla member'Of'ZQQ Third SA,5LLC,;’299 Thud SI LLC and 299
`
`SMN-A L.P., plaintiffs in this action; and 1am authorized to Verify the complaint: on
`
`plainfiffs’ behalf.
`
`2.
`
`I have read the foregoing "Verified Complaint and know the
`
`contents thereof3 and believe the same to be me torthe best-of my knowledge.
`
`
`
`Swern :to beforeme'. this
`lam-day ofAugust;201.S
`
`
`
`NOTARYPUBLIC- STATEOFNEW YORK
`No. omezasw’
`Wmmu uN
`
`
`HF 10196365v.2
`
`16
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
` FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`NYSC 3F DOC. NO. 23
`NYSCEF DOC. NO. 23
`
`EX NO.
`652867/2015
`INDEX NO. 652867/2015
`
`IND
`flD VYSC
`
`
` 3F:
`
`
`02/10/2017
`RECEIVED NYSCEF: 02/10/2017
`
`EXHIBIT A
`
`
`
`FILED: NEW YORK COUNTY CLERK 02/10/2017 07:12 PM
`FILED: NEW YORK COUNTY CLERK 02m2017 07:12 PM
`NYSCI 3F DOC. NO. 23
`k
`NYSCEF DOC. NO. 23
`
`I
`m '
`
`. A 35 ~ More. Business hamlets.
`“i
`. Omeeormon lI-9I
`
`@315 18558 made the
`
`5th
`
`.
`
`I
`
`day of
`
`Sept 2006
`
`between
`
`652867/2015
`INDEX NO. 652867/2015
`
`INDEX NO~
`
`
`
`
`
`02/10/2017
`RECEIVED NYSCEF: 02/10/2017
`R*.C fiIVfiD VYSCE?
`olsrlliwuo nv llumbln celslot inc.
`5’ Nrc roots
`
`h
`
`t
`t
`ereiaii ter re erred to as
`
`LAN
`
`'
`.
`DLORD and
`
`FAN AND ASSOCIATES
`PICK A BAGEL ON THIRD INC.
`
`hereinafter Jointly. severally and collectively reierred to as TENANT.
`
`
`
`William“),
`
`that the Landlord hereby leases to the Tenant. and the Tenant hereby hires and takes
`
`from the Landlord store and basement
`
`in the building known as 297 3rd Ave. New York City
`
`to he used and occupied by the Tenant bakery and restaurant with take-out food
`
`
`
`
`
`4
`
`and for no other purpose, for a term to commence on September lSt 2006
`
`and to end
`
`on
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
