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FILED: NEW YORK COUNTY CLERK 05/05/2017 07:49 PM
`FILED: NEW YORK COUNTY CLERK 05£E2017 07:49 PM
`
`NYSCTF DOC
`NO
`219
`NYSCEF DOC. NO. 219
`
`INDEX NO. 655410/2016
`INDEX NO~ 655410/2016
`
`
`
`
`
`RaCaIVaD VYSCEF: 05/05/2017
`RECEIVED NYSCEF: 05/05/2017
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`X A
`
`ndejo Corporation, dba Seaport Watch Company,
`Fulton Market Retail Fish Inc., dba Simply Seafood,
`Apple Mac & R Corp. dba Macmenamins Pub, Roslu
`Corp. dba Bergins Beer & Wine, Lakous Inc, dba Pizza
`Index No: 655410/2016
`On The Pier, Ainolahpek, Inc. dba Athenian Express,
`Seaport Novelty Gifts & News, Ltd., dba Seaport News,
`Ry—Allie Candy Corp dba Nutcracker Sweets, Waxology,
`Inc. dba Waxology, Hot Dogs Del Mar, Inc. dba Nathan’s
`Famous, Andrew Huestis dba The New York Shell Shop,
`View of the World Products, Inc. t/a A View Of The World
`and Products, Ltd. Dba View of the World,
`
`Plaintiffs
`
`AFFIDAVIT
`
`-against-
`
`South Street Seaport Limited Partnership, Seaport
`Marketplace, LLC., DLA Piper LLP (US), DLA Piper NY LLP,
`Rosenberg Feldman Smith, LLP., Edward Shapiro, Booth
`Street Food Corp. dba Yorkville Packing House, Salad
`Mania Inc. dba Salad Mania, The Howard Hughes
`Corporation, General Growth Properties and Stephen
`M. Rosenberg,
`
`Defendants.
`
`__________________________________________________________________________X
`Gerard Nally, being duly sworn, deposes and states under
`penalty of perjury:
`
`1. At all pertinent times, I was the owner ofAndejo
`Corporation, dba Seaport Watch Company., a
`
`1’ 5575;
`1 of 5
`
`

`

`FILED: NEW YORK COUNTY CLERK 05/05/2017 07:49 PM
`FILED: NEW YORK COUNTY CLERK 05w2017 07:49 PM
`NYSCI
`NYSCEF DOC. NO. 219
`3F DOC~ NOplaifitifi‘ in the above captioned matter.
`
`655410/2016
`INDEX NO. 655410/2016
`
`INDEX NO~
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`
`
`
`05/05/2017
`RECEIVED NYSCEF: 05/05/2017
`R"C"IV"D WSCEF‘
`
`2. I make this affidavit in opposition to the motions by the
`above-captioned defendants, brought
`pursuant to CPLR 3211, to dismiss plaintiffs’ amended
`complaint. This as a supplement to my prior
`affidavit dated February 21, 2017. I understand my prior
`affidavit is being re- submitted in opposition to
`the within motion as well.
`
`3. I understand that the defendants are now claiming, in
`support of their motions to dismiss, that
`the tenants Joint Claims Agreement (“JCA”) contained a “carve
`out” clause in 116 that permitted a tenant
`to settle rent claims with the landlord without the consent of the
`tenants group and without owing the
`value of the settlement to the tenants as a group. On this basis, I
`understand the defendants are now
`claiming that the defendants Booth Street, Yorkville and Mr.
`Shapiro were entitled to settle their rent
`claims with the landlord in 2013 without the consent of the
`tenants, as they did, and that they do not
`owe the value of the settlement to the group, as plaintiffs allege
`in the within action.
`
`4. That’s not true. At no time prior to the within motions to
`dismiss by the defendants did anyone
`claim. that the JCA permitted a tenant to settle rent claims
`without the consent of the group, or that the
`value of such settlement would not belong to the group. Rather,
`it’ was always my understanding of the
`JCA, as well as the understanding of the other group tenants
`with whom I’ve been in contact, that no
`tenant was allowed to settle any claims, including ret claims,
`with the landlord without the consent of
`the group, and that, if one did, the value of any settlement
`belonged to the group as a whole. This is
`how the agreement was presented to us by our attorneys and by
`
`2 of 5
`2 of 5
`
`

`

`FILED: NEW YORK COUNTY CLERK 05/05/2017 07:49 PM
`FILED: NEW YORK COUNTY CLERK o5m2017 07:49 PM
`
`NYSCEF DOC. NO. 219
`NYSCEF Doc. N<Ma1$hapiro when we were asked to
`sign it. No one had claimed otherwise.
`
`INDEX NO. 655410/2016
`INDEX NO 655410231:
`
`
`
`
`
`RECEIVED NYSCEF: 05/05/2017
`“0'1"” “SC-L“ 05/05
`
`5. Neither Eddie Shapiro, nor our attorneys had ever advised
`me, or the other tenants, as far as I’m
`aware, prior to the signing ofthe JKCA, that their interpretation
`of the JCA was that it permitted a
`tenant to settle rent claims without the approval of the group or
`without owing the value of any such
`settlement to the group. Had they done so before I signed the
`JCA, I wouldn’t have signed it, or entered
`into group litigation with Mr. Shapiro or his businesses, as I did.
`I don’t believe the other tenants would
`have either.
`'
`
`6. The Court should also be aware that the defendant
`attorneys conducted one on one meetings
`with individual tenants’ early in the litigation process to
`determine each tenants’ particular situation.
`Hence, the attorneys were aware of whether individual tenants,
`like Mr. Shapiro, were in arrears in rent
`to the landlord at the time the JCA was signed. However, the
`attorneys did not share that information
`concerning other tenants with myself, or other members of the
`group, as far as I’m aware. Because of
`this, I, and other tenants were unaware when we were asked to
`sign the JCA by Mr. Shapiro and the
`attorneys, that Mr. Shapiro’s businesses had large outstanding
`rental obligations owed to the landlord
`or that he was personally liable on those obligations. Had I been
`so advised, I would not have signed the
`JCA or entered into a group litigation that included Mr. Shapiro
`or his businesses.
`
`7. I also understand that the defendants are claiming that the
`tenants were aware in 2012 that
`Eddie Shapiro, on behalf of himself and his businesses, had
`entered into settlement agreements with the
`
`3of5
`3 of 5
`
`

`

`INDEX NO. 655410/2016
`FILED: NEW YORK COUNTY CLERK 05/05/2017 07:49 PM
`INDEX NO~ 655410/2016
`FILED: NEW YORK COUNTY CLERK 05£E2017 07:49 PM
`
`
`NYSCI
`05/05/2017
`RECEIVED NYSCEF: 05/05/2017
`NYSCEF DOC. NO. 219
`3F Doc. NOlandSlord in 2005 and in 2008. I can advise the CmfiWW iidtm
`aware of those settlements, and I don’t
`believe that the other group members were either.
`
`8. In 2016, I assisted John O’Kelly, the tenants’ attorney in
`the underlying Andejo case
`
`(603707/2004), in disputing the landlord’s claim for an award of
`attorney fees in its favor against the
`tenants as a result of that matter. Pursuant to the claim for
`attorney fees, the landlord’s attorneys
`produced their billing records. Contained in those billing records
`were entries pertaining to the 2005 and
`2007-2008 settlements with the Shapiro defendants. That is how
`I, and the rest of the tenants, became
`aware of those settlements. We were unaware of them
`previously. They had not been disclosed to us by
`either Mr. Shapiro or the RFS attorneys.
`
`9. In 2005, the RFS defendants were urging the tenants to
`agree to the landlord’s request to
`consolidate all of the tenants’ Civil Court actions into the main,
`Andejo case, in Supreme Court. The RFS
`attorneys advised it would be to our benefit to do so. Based on
`their representations, 1, and the other
`tenants, agreed to consent to the consolidation. At no time did
`either the RFS attorneys, or Mr. Shapiro,
`our liaison to the attorneys, advise us that they were in the
`process of settling Mr. Shapiro’s beer cart
`case with the landlord (the 2005 settlement) at the same time
`they were urging us to agree to the
`landlord’s consolidation request. We were never informed of
`this conflict of interest on the part of our
`attorneys and Mr. Shapiro. Had I known of it at the time, I
`would not have consented to consolidation.
`Nor do I believe the other tenants would have either. The
`consolidation unnecessarily extended the
`
`"'4 of 5
`4 of 5
`
`

`

`
`INDEX NO. 655410/2016
`FILED: NEW YORK COUNTY CLERK 05/05/2017 07:49 PM
`INDEX NO. 655410/2016
`FILED: NEW YORK COUNTY CLERK 05m2017 07:49 PM
`
`RECEIVED NYSCEF: 05/05/2017
`NYSCEF DOC. NO. 219
`NYSCEF DOC~ NAnéleiio litigation by years, and greatly increased litigfitibi‘f oasis? ‘ 05/05/2017
`Moreover, it turned the Andejo
`
`litigation into a rent case, which would not have happened but
`for the consolidation. It seems our
`
`attorneys, together with Mr. Shapiro, our liaison to them,
`fraudulently induced us to agree to the
`consolidation for their own benefit.
`
`. TERRENCE ANDRE BRYANT HARPER *
`Notary Public, State of New York
`No. 0’23 $6225736
`Qualified in Westchester County
`Commnasion Expires July 26, 201E...
`.vvvv vvvvvvvvvvvvvv ;.,:‘
`
`
`
`
`
`
`
`ail-MM
`
`Gerard Nally
`
`Sworn to before me this 5 h
`
`,
`
`
`
`---------------
`
`
`
`
`
`5 Of5 ..
`5 of 5
`
`,
`
`

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