Recent Litigations

68-74 Thompson Realty LLC v Heard, et al.: Rosenberg & Estis, P.C. has secured a victory for its client in a Civil Court trial and a subsequent appeal to the Appellate Term, First Department, after unraveling an elaborate scheme perpetrated by the tenant of record and her alleged roommate ("Appellant"), who claimed rights to the rent-stabilized apartment by alleging that the tenant of record was an illusory tenant. Appellant and the tenant of record fashioned a scheme to convince the Landlord that they were roommates, as permitted by law, so as to deprive Landlord of knowledge of what Appellant belatedly attempted to characterize as an illegal sublet for profit or an illusory tenancy. The scheme included Appellant appearing in Court as the tenant's roommate twice, with notarized letters from the tenant affirming same; fraudulently representing to the Civil Court and Landlord, in a so-ordered Stipulation, that she was the tenant's roommate; perpetuating their fraud by, among other things, making sure the tenant was present and appeared to be living at the Premises during Landlord's inspections of the Premises; opening a joint bank account and tendering all rent payments bearing the tenant's and Appellant's names; affirmatively acting to have the tenant sign all renewal leases (even mailing them out of the country when necessary; and mailing said renewals and rent checks to Landlord with the tenant's name written by Appellant as the sender.

After Appellant's deceit was discovered, Landlord commenced a nonprimary residence holdover proceeding against the tenant of record. Appellant appeared in Court, retreated from her prior representations and sought an unwarranted rent-stabilized tenancy, essentially, arguing that Landlord and the Civil Court should have known she was lying sooner. After the tenant of record defaulted, the sole issue at trial was Appellant's illusory tenancy defense. After a three day bench trial, Civil Court (Kraus, J.) found that Appellant was wholly incredible and rejected her claims because she participated in an elaborate scheme to hide the alleged subtenancy from Landlord and the Civil Court (in prior summary proceedings). Significantly, based on Rosenberg & Estis's cross-examination of the Appellant, Civil Court expressly found that "it is undisputed that [Appellant] will lie to the court and the landlord if she believes it will enable her to continue in occupancy..."

On appeal the Appellate Term, First Department, found "no cause to disturb the trial court's fact-laden determination that [Appellant] failed to prove her illusory tenancy defense." The Court also found that the trial record and evidence amply supported Civil Court's conclusions, noting further that, "the trial court, having heard [Appellant]'s testimony and observed her demeanor, was entitled to discredit her testimony upon its assessment that it was "'inconsistent, contradictory and inherently unreliable.'" Appellant's motion for leave to appeal to the Appellate Division, First Department was denied, and Landlord subsequently executed on its warrant of eviction.

(Supreme Court of the State of New York, Appellate Term, First Department, Decided February 23, 2017)
(Rosenberg & Estis, P.C. Team: Deborah E. Riegel, Ethan R. Cohen, and Ilya Prokopets)

Rui Qin Chen Juan, et al. v. 213 West 28 LLC: The First Department has ruled in favor of Rosenberg & Estis, P.C.'s client, affirming a Supreme Court decision and order (Hagler, J.) that denied the plaintiffs-tenants' motion for a Yellowstone injunction. In the underlying action, commercial tenants in R&E's client's building brought a Yellowstone motion after their landlord served a notice to cure alleging, among other defaults, that the tenants were in breach of the lease due to their failure to maintain adequate insurance throughout the term of the lease. After briefing and oral argument on the tenants' motion, the Supreme Court found, inter alia, that the insurance policies produced by the tenants contained the following deficiencies in breach of the lease: (1) the tenants' insurance policies contained gaps in coverage, including an admitted two week gap; (2) the tenants' policies failed to include the landlord or its predecessors as additional insureds; (3) the tenants failed to maintain insurance in an amount of not less than $3,000,000 per occurrence; and (4) all insurance was in the name of a non-tenant third-party entity. Accordingly, the Supreme Court held the tenants' breaches incurable and denied the Yellowstone motion. On appeal, the First Department agreed with R&E and the Supreme Court that the tenants' failure to maintain adequate insurance throughout the term of the lease is a material breach that may not be cured by the purchase of prospective insurance, and further agreed with R&E, as a threshold matter, that the tenants provided no factual support for their Yellowstone motion "because the sole source of support for the motion was the English language affidavit of the non-English-speaking Rui Qin Chen Juan, which is inadmissible for want of a translator's affidavit, as is required by CPLR [2101(b)] and Rule 14(a) of the New York County Supreme Court, Civil Branch, Rules of Justices." For those reasons, the Court affirmed the Supreme Court's denial of the motion.

( The Supreme Court, Appellate Division, First Department, Decided April 18, 2017)
(Rosenberg & Estis, P.C. Team: Joshua Kopelowitz and Ilya Prokopets)

859 Ninth Avenue LLC V Shalom Mor: Rosenberg & Estis, P.C. secured summary judgment granting possession of a rent-stabilized apartment to the property's owner, 859 Ninth Avenue LLC, after the tenant violated the lease by renting the unit on Airbnb and by using it as a hair salon. Rosenberg & Estis sought possession of the premises on behalf of the petitioner after a notice of termination was served to the unit's occupant. The petition alleged that the respondent was committing a nuisance by permitting it to be used as a short-term rental on Airbnb and as a hair salon. Rosenberg & Estis premised its motion for summary judgment on subpoenaed Airbnb records from 2013 to 2015 and on respondent's tax records, in which respondent claimed that in 2013 50 percent of the apartment was used for business purposes. The respondent deducted half the rent as a business expense. From October 2013 to October 2015, respondent received income of $31,203 from Airbnb, renting the apartment 33 times for a total of 186 days. In 2014, respondent deducted $21,120 as a management fee. In his deposition, the respondent further admitted that he gave instructions on the Airbnb website, directing guests never to mention Airbnb and to state that they were friends if anyone ever asked. The respondent asserted a host of defenses, including that he was in compliance with lease and Rent Stabilization Code, and that the notice of petition and petition were not properly served. Judge Cohen said in her ruling that these defenses were "devoid of any facts or data, and thus are fatally defective."

(Civil Court of the City of New York, Decided April 5, 2017)
(Rosenberg & Estis, P.C. Team: Michael A. Pensabene)

943 Second Ave. Realty Company LLC V Olga Mysovskaya: Rosenberg & Estis, P.C. successfully represented the petitioner on a motion for summary judgment to evict a fair market tenant holding over after the expiration of her lease. The tenant alleged that her apartment was rent stabilized despite a DHCR order, decided over 18 years ago, holding the premises was deregulated after undergoing a substantial rehabilitation. The tenant commenced DHCR proceedings for review of the DHCR Order, alleging that same was obtained by fraud, and had previously moved for a stay during the pendency of the same, which Judge Stoller denied. The tenant sought to stay the proceeding pending an appeal of Judge Stoller's prior denial of the motion for a stay, which was denied. Judge Stoller granted our motion for summary judgment, holding that the petitioner proved by the certified DHCR order that the subject premises is not subject to the Rent Stabilization Law and as the prevailing party petitioner is entitled to recover its legal fees by the terms of the subject lease agreement.

(Civil Court, New York County, Decided February 27, 2017)

(Rosenberg & Estis, P.C. Team: Warren A. Estis, Joshua Kopelowitz and Cori A. Rosen)

11 Hanover Square Corp. V 11 Hanover Group LLC: Rosenberg & Estis, P.C. was successful on a motion for summary judgment seeking the dismissal of a nonpayment proceeding commenced against a commercial tenant, on the basis of (1) improper service of the predicate notice and of the notice of petition and petition, and (2) a defective rent demand, seeking amounts which had been paid by the tenant and accepted by the landlord over a week prior to the service of the rent demand.

(Civil Court, New York County, Decided January 19, 2017)
(Rosenberg & Estis, P.C. Team: Michael A. Pensabene and Cori A. Rosen)

Past Litigations

1 Perry Street LLC v. 1 Perry St. Restaurant DBA Yerba Buena: Rosenberg & Estis, P.C. successfully represented the petitioner, 1 Perry Street LLC, in the post-possession phase of a licensee holdover proceeding against a well-known downtown Manhattan restaurant. The law firm won the right to recover in excess of $150,000 in legal fees, costs, disbursements and expert witness fees, and $35,000 in use and occupancy for its client.

(Civil Court, New York County, Decided December 16, 2016)
(Rosenberg & Estis, P.C. Team: Norman Flitt and Adam Lindenbaum)

Three Amigos SJL Rest., Inc. v. Alphonse Hotel Corp., 250 West 43 Owner LLC, 250 West 43 Owner II LLC, 250 West 43 Owner III LLC, and Athene Annuity and Life Company: Rosenberg & Estis, P.C. successfully represented the owners, defendants 250 West 43 Owner LLC, 250 West 43 Owner II, LLC and 250 West 43 Owner III, LLC, against the tenant, Three Amigos SJL Restaurant Inc., before the Appellate Division, in the vacating of a Yellowstone injunction granted in 2015 to a tenant that rented space in a hotel owned by the client. The decision allows for the eviction of the tenant, a gentlemen's club, and also included an important ruling on Yellowstone relief that may prove important in later decisions. "Due to the court's finding, the termination of the tenant's lease, which included options through 2026, was upheld," said Norman Flitt. "This was a major victory for our client, because the tenant was occupying a large portion of the ground floor, and its continued occupancy under the Yellowstone injunction was preventing the owners from completing renovations to the ground floor, the lobby and the entire building." This decision will likely impact future cases, as it clarifies when a tenant needs to make an application for Yellowstone relief, and the showing that a tenant must make if it moves for Yellowstone relief after a termination notice has been served.

(Appellate Division, Decided November 15, 2016)
(Rosenberg & Estis, P.C. Team: Norman Flitt)

Tap Tap, LLC v. 558 Seventh Ave. Corp., Jane Upton, as Sole Trustee of the Basil Schmookler and Jane Upton Revocable Trust, and Jane Upton, as Sole Trustee of the Morwin Schmookler Irrevocable Trust: Rosenberg & Estis, P.C. successfully secured an Appellate Division ruling that reverses the New York State Supreme Court and reinstates a client's motion for a Yellowstone injunction. R&E represented Tap Tap, LLC, the commercial net-­‐ lessee and plaintiff in the proceeding against 558 Seventh Ave. Corp., before the Appellate Division, First Department. Due to R&E's efforts, the Appellate Division reinstated Tap Tap, LLC's Complaint and motion for a Yellowstone injunction. Importantly, this occurred after a notice of termination expired in April 2015, after the landlord commenced a summary proceeding in civil court in May 2015, and after civil court granted summary judgment awarding a final judgment of possession against Tap Tap, LLC in January 2016. R&E substituted into the litigation as counsel after the final judgment was entered, and was successful on appeal. R&E re-­‐argued the Civil Court decision, moved to clarify the prior Supreme Court orders and then appealed all of the Supreme Court orders. On the consolidated appeals, the Appellate Division ruled that the Supreme Court's August 2015 order dismissing the action was erroneous, and stated that the "court improperly resolved plaintiff's order to show cause seeking Yellowstone relief without applying the proper standard for such relief, and improperly dismissed the entire action, sua sponte, when there was no basis for the court to do so." As a result, The Appellate Division reopened the matter and reinstated the complaint and plaintiff's Yellowstone motion, remanding it to the Supreme Court "to consider whether, under the circumstances, plaintiff's Yellowstone injunction was timely filed ... and otherwise warranted on the merits."

(The Supreme Court, Appellate Division, First Department, Decided November 1, 2016)
(Rosenberg & Estis, P.C. Team: Michael A. Pensabene, Alexander Lycoyannis, and Ethan R. Cohen)

In the Matter of the Application of 12 Broadway Realty LLC v. New  York State Division of Housing and Community Renewal, and The 60 East 12th Street Tenants' Association, and Jeffrey  Schanback as President and Tenant Representative: The New York State Court of Appeals has ruled in favor of Rosenberg & Estis, P.C., affirming an Appellate Division ruling that 12 Broadway Realty LLC's application for a major capital improvement rent increase must be processed by the DHCR with no conditions. The case stems from a 1995 MCI increase that was originally categorized as resurfacing exterior walls with a useful life of 25 years. This description was later modified by the DHCR to waterproofing with a useful life of 15 years. When the owner sought a MCI increase in 2007, the DHCR rejected it, saying that the useful life has not expired. R&E requested a reconsideration of the denied MCI claim stating that there were numerous irregularities in the order. The building's tenants objected to the reconsideration stating the owner had not substantiated any irregularities with the previous orders so the owner's request for reconsideration should be denied. The Deputy Commissioner in 2013 partially granted the owner's PAR and denied the tenant's PAR in its entirety. Both parties then commenced CPLR article 78 hearings. The DHCR subsequently sought to remit the matter to itself so it could properly deal with the discrepancy between its 1995 and 1998 orders. The New York State Supreme Court granted DHCR's motion to remit, and imposed conditions on the application that would have prevented the owner from receiving a fair rent increase. Both owners and tenants appealed, and the Appellate Division ruled three-to-two in favor of 12 Broadway Realty. The case then moved to the Court of Appeals, which found that the Appellate Division did not err in permitting the DHCR to address 12 Broadway Realty's application for a MCI rent increase for resurfacing work. "This case is an example of the persistence that is so often needed to ensure that owners' rights are protected," said Jeffrey Turkel, member of Rosenberg & Estis, P.C.

(New York State Court of Appeals , Decided September 15, 2016)
(Rosenberg & Estis, P.C. Team: Jeffrey Turkel)

178 Nassau LLC v. Tobey Smith: Rosenberg & Estis, P.C. secured a judgment for the petitioner, 178 Nassau LLC, before Judge Eleanora Ofshtein in Kings Country Civil Court, against a tenant holding over in a Brooklyn apartment, achieving possession of a disputed apartment that ultimately was proven to be an unregulated residential month-to-month tenancy. The case represented the final steps in a three-year legal battle that focused on a rent stabilization exemption in a three-story building. A predecessor law firm initially commenced the holdover proceeding on the theory that the subject apartment was exempt from rent stabilization because it was located in a three-story building that had fewer than six units and, as a matter of law, was a frame building incapable of accommodating six or more residential units. R&E's administrative law department performed a FOIL request and reviewed the building's file at the Division of Housing and Community Renewal. R&E discovered that the prior owner had in 2004 successfully argued to DHCR that the entire building was exempt from regulation due to the substantial rehabilitation that included the conversion of the ground floor units into commercial space. Upon this discovery, the petitioner successfully moved to amend the petition to assert the new theory of deregulation based upon the substantial rehabilitation and to have the pending summary judgment motions withdrawn. After the respondent asserted many of the same affirmative defenses and counterclaims to the amended petition, the petitioner moved to strike the defenses relating to the recovery of possession and for partial summary judgment, which was awarded by Judge Ofshtein. Shortly after Judge Oftshtein's Order, the parties settled the proceeding upon what the petitioner viewed as favorable terms.

( Civil Court Kings County, Decided August 19, 2016)
(Rosenberg & Estis, P.C. Team: Adam Lindenbaum)

M&E Christopher LLC v. Lima's Taste Ceviche Bar, Inc.: Rosenberg and Estis, P.C. successfully represented the petitioner, M&E Christopher LLC ("Petitioner" or "M&E"), in securing a judgment against the respondent, Lima's Taste Ceviche Bar, Inc. ("Respondent"), after a commercial non-payment trial. The final judgment in favor of the Petitioner granted possession of the property as well as a money judgment for rent arrears in the amount of $437,961.98, including interest and late fees. The Court determined that M&E was the prevailing party and awarded attorneys' fees to be determined at a hearing.

Petitioner commenced this non-payment proceeding to recover the rent arrears, late charges and interest charges which the Respondent had failed to pay. Although the Respondent did not dispute the Rent Arrears, it challenged M&E's right to recover late charges and interest, as well as the proper calculation of same, which comprised $85,622.42 of the $437,961.98 awarded. M&E had unsuccessfully sought to establish its right to the late charges and interest with prior counsel. Respondent further claimed that it had been constructively evicted from a portion of its basement storage space, such that it was entitled to a set-off against the unpaid rent.

Because Respondent had so vigorously defended M&E's prior attempts to recover the Rent Arrears, together with the substantial late charges and interest, Rosenberg & Estis, P.C. worked extensively with M&E to ensure that the methodology employed for calculation of the late charges and interest would survive scrutiny by the Court and that M&E's witness could clearly and accurately testify as to those calculations. It was the extensive trial preparation that lead to R&E's successful prosecution of M&E's claims for the late charges and interest.

Judge Cannataro awarded M&E the full amount it sought at trial and rejected the Respondent's defense that it was constructively evicted, finding that Respondent had acquiesced to the alleged taking of a portion of the basement space by virtue of its failure to object to the alleged modifications to its space at the time they took place. In evaluating Respondent's case, the Court found that Respondent was also unable to substantiate the actual amount by which its basement space was purportedly reduced or the value of the reduction in space. Therefore, even if the Court credited Respondent's testimony as to constructive eviction, the failure to substantiate its damages was fatal to its claim. Lastly, the Court observed that the testimony adduced would have more appropriately supported an actual eviction defense, which was not pleaded.

(Civil Court, New York County, Decided 04/12/2016)
(Rosenberg & Estis, P.C. Team: Deborah E. Riegel and Joseph Goljan)

MEEC Players LLC v. Nightlife Productions Entertainment Inc. et al.: Rosenberg & Estis, P.C. successfully defeated a commercial tenant's motion to vacate its default. Rosenberg & Estis, P.C. represented the landlord in this commercial non-payment proceeding. Landlord moved for summary judgment and, in the alternative, for a judgment of possession pursuant to RPAPL 745 based upon the tenant's failure to pay rent as directed by the Court. Tenant failed to appear on the return date of the motion and a judgment of possession and money judgment was entered against tenant. Tenant moved to vacate its default and set aside the judgments based upon law office failure and purported defenses to the proceeding, including, claims that services had not been rendered pursuant to the parties' lease. The Court, adopting R&E's arguments, found that tenant had failed to demonstrate a meritorious defense to the proceeding and that there was no defense to tenant's failure to comply with the RPAPL 745 order under the statute. The Court rejected the tenant's claim that the alleged decrease in services constituted a defense to a commercial non-payment proceeding in light of the lease's prohibition on counterclaims and set-offs. Accordingly, tenant's motion was denied.

( Rosenberg & Estis, P.C. Team: Joshua R. Kopelowitz and Anthony J. Virga)

68 74 Thompson Realty LLC vs. Carolyn Heard, Yvonne Tseng et al.: After the prime tenant defaulted in this non-primary residence holdover proceeding, Deborah Riegel, a member of Rosenberg & Estis, P.C. successfully represented the petitioner, 68 74 Thompson Realty LLC, in defeating a subtenant's demand for a rent-stabilized lease in her own name under an illusory tenancy theory. The petitioner was granted a judgment of possession and warrant of eviction against all respondents in this proceeding.

Rosenberg and Estis, P.C., served as counsel for the petitioner, 68 74 Thompson Realty LLC, which was attempting to recover possession of an apartment in the building it owns after it discovered that Carolyn Heard ("Heard"), the tenant of the apartment, was not the primary resident and was subletting the apartment to a Yvonne Yseng ("Tseng"). Heard did not appear in the proceeding or dispute the allegation that she no longer primarily resided in the apartment. The only defenses to the proceeding were asserted by Tseng, who claimed that Heard's tenancy was illusory and, therefore, Tseng should be granted a direct lease with the Petitioner in her own name. Tseng claimed that she was the sole tenant of the Apartment, had resided there with her daughters for years after Heard vacated, and had paid all the rent. She also alleged that Petitioner's agents knew about her occupancy; that building superintendents had seen her in the Apartment; and that she had paid Heard, above and beyond the rent due under the Lease, for the right to remain in possession.

Through discovery and cross-examination at trial, Petitioner established that respondent conspired with Heard to deprive it of knowledge of Respondent's claims. Specifically, both Tseng and Heard held themselves out as roommates and stated that they were co-occupying the Apartment. Crucially, Petitioner proved that in a proceeding to evict Tseng based on Heard's illegal sublet of the Apartment to her, she entered into a so-ordered stipulation representing that they were roommates and ensured that Heard was present at a required inspection so as to defraud Petitioner into believing that Heard was living with her. Petitioner also proved that, in furtherance of their scheme, Tseng and Heard opened a joint bank account, which was used virtually exclusively to pay the rent, and that when renewal leases were sent to Heard, Tseng mailed them to Switzerland where Heard would sign them and mail them back to her. Tseng would then transmit them to Petitioner in envelopes with Heard's name and return address at the Apartment. Moreover, Tseng failed to establish that Heard profited from the subtenancy. To the contrary, Tseng admitted that Heard did not demand any rent increases and that any additional sums Tseng paid to Heard were gifts.

After trial, Judge Sabrina Kraus adopted Rosenberg & Estis's arguments and found that Tseng and Heard colluded in a scheme to hide the subtenancy from the Petitioner, as a result of which, Respondent's claim of illusory tenancy was without merit. Accordingly, Judge Kraus granted the Petitioner a final judgment of possession, with a warrant of eviction to be issued forthwith.

Rosenberg & Estis, P.C. Team: Deborah E. Riegel )

Greenberg v. 253 West 28th Street Corp., et al.: Rosenberg & Estis, P.C. ("Rosenberg & Estis, P.C.") successfully represented defendants Pranam LLC and Marianna Morrison, shareholders and proprietary lessees of two units in a small cooperative building, in securing summary judgment dismissal of an action commenced by fellow shareholder, Jill Greenberg. At issue in the two-year litigation was whether the plaintiff was entitled to certain shares apportioned to the building's roof, and whether the plaintiff possessed a sufficient shareholder majority to block the sales of four units to a developer. Justice Barry Ostrager granted R&E's motion for summary judgment in a bench ruling during oral argument.

(Supreme Court, New York County, Decided 03/23/2016)
(Rosenberg & Estis, P.C. Team: Jason R. Davidson and Joseph Goljan )

Bleecker St. Invs., LLC v Zabari: Rosenberg & Estis, P.C. successfully represented Bleecker Street Investors, LLC ("Landlord") in connection with an appeal at the Appellate Term, First Department. The Civil Court, New York County had erroneously denied Landlord's motion for summary judgment in a residential lease expiration holdover proceeding on the grounds that an issue of fact purportedly existed as to whether the subject apartment was rent stabilized. By Decision and Order dated March 8, 2016, the Appellate Term reversed the Civil Court's order, granted summary judgment to Landlord, and remanded the matter to the Civil Court to determine the amount of reasonable attorneys' fees and use and occupancy due to Landlord.

On appeal, Rosenberg & Estis, P.C. cited a 2005 Loft Board order removing the subject apartment from rent stabilization, and argued that such order was binding on the Civil Court. Rosenberg & Estis, P.C. also argued that a Supreme Court ruling in connection with an Article 78 proceeding commenced by the tenant, in which the court held any challenge to the Loft Board's order to be time-barred, precluded any assertion by the tenant that the subject apartment is rent stabilized.

The Appellate Term agreed, holding that the tenant "is precluded from claiming that the apartment is rent regulated by virtue of the May 19, 2005 order of the Loft Board, which held that the subject unit is not subject to rent regulation, and the unappealed dismissal of his CPLR article 78 petition challenging that determination." While the tenant asserted that certain language in the Supreme Court's ruling permitted him to assert a rent stabilization defense in Civil Court, the Appellate Term disagreed, holding -- based on arguments set forth in R&E's briefs -- that such language "was merely dictum wholly unnecessary to [Supreme] Court's holding."

(Supreme Court, Appellate Term, First Department, Civil Court, Decided 03/08/16)
(Rosenberg & Estis, P.C. Team: Jason R. Davidson , Alexander Lycoyannis and Ethan R. Cohen )

486 E. 74th LLC v. Bruce Markowitz: A team of Rosenberg & Estis, P.C. attorneys, led by member Brett B. Theis and including associate Anthony J. Virga, successfully defeated a rent stabilized tenant's cross-motion to dismiss a non-primary residence holdover proceeding. The Court also granted the landlord, represented by Rosenberg & Estis, P.C., leave to conduct discovery of the tenant, and awarded past due and ongoing use and occupancy. The crux of the tenant's motion was that the predicate notice of nonrenewal was deficient because it was allegedly based upon information obtained from a Nassau County Guardianship proceeding, which was subsequently sealed after Rosenberg & Estis, P.C. served the notice of nonrenewal, but before commencement of the holdover proceeding.

The Court, adopting R&E's arguments, found that there is no basis for dismissal of a petition on the ground that information in the predicate notice discloses information from an allegedly sealed file. The Court also found that even if the allegations in the predicate notice obtained from the purportedly sealed Guardianship proceeding were stricken from the notice, the notice still contained enough information to allow the tenant to prepare a defense. Accordingly, the court denied the tenant's motion it its entirety and granted the landlord's motion for leave to conduct discovery and for past due and ongoing use and occupancy.

(Civil Court, New York County, Housing Part F, Decided 03/03/16)
(Rosenberg & Estis, P.C. Team: Brett B. Theis and Anthony J. Virga )

Paramount Leasehold, L.P., vs. 43 rd Street Deli, Inc., d/b/a Bella Vita Pizzeria: Rosenberg & Estis successfully represented the plaintiff, Paramount Leasehold, L.P., in obtaining summary judgment against defendant 43 rd Street Deli, Inc. d/b/a Bella Vita Pizzeria on a claim for unpaid percentage rent and interest for a period of approximately six years, totaling nearly $420,000, due to Paramount under its lease with the Pizzeria. At issue was a provision in the Pizzeria's lease providing for payment of a percentage rent equal to 10 percent of the amount by which the tenant exceeded its sales margins.

The Pizzeria's lease required the Pizzeria to self-report the amount of income it received each month. The lease also provided that there would be no oral modification or waiver of the terms of the lease, and that any waiver or modification must be in writing.

Because the tenant failed to pay a percentage rent or report any earnings, and then refused to allow Paramount to conduct an audit of the Pizzeria's gross sales records in accordance with the lease, Paramount commenced suit and moved contemporaneously for a preliminary injunction that prevented the tenant from destroying relevant books and records. In response to a subpoena from Paramount, the tenant's accountants turned over copies of tax returns from December 1, 2004 through November 30, 2010, and it was determined from those returns that the amount of percentage rent owed under the lease for those years was $263,114.55 before interest. Paramount then moved for summary judgment in that amount, plus interest. The Pizzeria opposed the motion, arguing that it did not pay a percentage rent over the years, or self-report its earnings, because the landlord had orally waived the requirement.

The Court noted that "a nonbreaching party should not have to litigate the issue based only on the breaching party's unsupported and uncorroborated representation that it orally waived a provision. This is the very reason why many contracts require waivers to be in writing. Such a bald representation is all tenant presents here."

The Court also noted that had the tenant provided the landlord with the required reporting or cooperated with an audit that the landlord had requested, the Pizzeria could have opened the doors to negotiation. Because the Pizzeria did not report its earnings or allow the audit, Paramount was then entitled to conduct its own audit under the terms of the lease.

The Court granted Rosenberg & Estis' motion for summary judgment, allowing Paramount to proceed with the entry of a money judgment against the Pizzeria, for the percentage rent and interest owed, totaling nearly $420,000.

(Supreme Court, Appellate Division, First Department, Decided 02/23/16)
(Rosenberg & Estis, P.C. Team: Norman Flitt and Alexander Lycoyannis )

Plaza Tower LLC v. Ruth's Hospitality Group Inc. (award of attorneys' fees): After prevailing on its appeal (described above), Rosenberg & Estis, P.C. brought a motion against the lease guarantor, Ruth's Hospitality Group, to recover our client's attorneys' fees, costs, and expenses incurred in connection with the Supreme Court collection action and the successful appeal to the Appellate Division. Despite conceding that Rosenberg & Estis has "an excellent reputation," the guarantor raised a host of arguments in an attempt to reduce our client's entitlement to recoup its fees. The guarantor also insisted on holding a hearing to determine the amount of attorneys' fees that our client would be awarded. Justice Jennifer Schecter found that Rosenberg & Estis's billing invoices provided an "abundance of detail that [is] more than sufficient to support" the fee request, agreed with us that there was no need for a hearing, and awarded our client $128,640.84 in fees, plus interest.

(Supreme Court, New York County, Decided 01/28/16)
(Rosenberg & Estis, P.C. Team: Jason R. Davidson and Anthony J. Virga )

The Carlyle, LLC v. Quik Park Beekman II, LLC, Quik Park Beekman LLC, Beekman Garage LLC and Quik Park 1633 Garage LLC: Rosenberg & Estis, P.C. has secured monetary judgments totaling $1.38 million for holdover damages against two Quik Park entities on behalf of The Carlyle. Warren Estis and Norman Flitt, members and Adam Lindenbaum, an associate at Rosenberg & Estis, represented The Carlyle in the proceedings before Judge David B. Cohen in New York City Civil Court.

The Carlyle had leased the garage at 51-53 East 76 th Street in Manhattan to a Quik Park entity that then assigned the lease to another Quik Park entity, Quik Park Beekman II LLC. The multi-level garage services the famous hotel.

The Carlyle terminated the lease for the garage in August 2014, after Quik Park had failed to pay rent for several months. Quik Park then held over in the premises for five months despite lease clauses that provided for double rent, plus $25,000 per month, for any holdover. Rosenberg & Estis successfully recovered possession of the garage after winning partial summary judgment against Quik Park Beekman II. The Carlyle also sued in a separate action in Supreme Court for the unpaid rent under the terminated lease, and successfully obtained another judgment against Quik Park Beekman II, LLC for $1,503,661.16 for the rent and attorneys' fees.

Following the recovery of possession of the garage in the Civil Court proceeding, Rosenberg & Estis obtained a hearing to determine how much was owed for the five-month holdover period. Judge Cohen ultimately awarded judgment against Quik Park Beekman II for $1.05 million in reliance on the double rent and $25,000 per month provided for in the lease. Judge Cohen also awarded judgment against Quik Park 1633 Garage LLC, an entity which had paid rent for the premises prior to the holdover and which had asserted possessory rights to the premises. The judgment against Quik Park 1633 Garage totaled $333,333 for five months' holdover use and occupancy based on the Judge's determination of the fair market value of the space.

"Quik Park obviously thought it could avoid eviction and liability for rent by interposing Quik Park 1633 Garage as leaseholder without formally assigning the lease," Estis said. "Ultimately, however, this did not work, and ended up costing Quik Park, as the Judge ordered judgments against two entities instead of one."

In an earlier action brought on behalf of Sheldon Solow, Estis and Flitt successfully evicted other Quik Park entities from four well-located garages operated by Quik Park at 9 West 57 th Street, one of the premier commercial buildings in Manhattan, and at 501 East 87th Street, 525 East 72nd Street and 265 East 60th Street in Manhattan.

(Rosenberg & Estis, P.C. Team: Warren A. Estis, Norman Flitt and Adam J. Lindenbaum.

101 Silver Corp., and A and E Limited Partnership v. 101 Ave A, LLC: Rosenberg & Estis, P.C. successfully represented our clients, plaintiffs 101 Silver Corp., and A and E Limited Partnership, in obtaining summary judgment on a claim totaling nearly $2.2 million. In 2011, the plaintiffs had entered into an agreement that would give up a controlling interest in 101 Avenue of the Americas, a commercial office building, to 101 A of A LLC, an entity controlled by Edward Minskoff. According to the agreement, our clients were entitled to a $2 million distribution from the company, along with a percentage return of nearly $200,000, on the third anniversary of the agreement.

As the anniversary approached, plaintiffs informed the company that the distribution due date was approaching. 101 A of A LLC claimed that the plaintiffs were in breach of the agreement for failing to provide unspecified books and records and refused to pay the distribution.

On behalf of its clients, Rosenberg & Estis sued the company and moved for summary judgement. In opposition, the defendant claimed that plaintiffs' purported failure to provide books and records was a "material breach," which justified the defendant's refusal to pay the distribution. Justice Charles Ramos granted Rosenberg & Estis' motion, stating that the company's defense was frivolous and that the distribution was due.

(Supreme Court, New York County, Commercial Division, Decided 10/23/2015)
(Rosenberg & Estis, P.C. Team: Warren A. Estis and Michael E. Feinstein )

Lundy's Management Corp. v Sheepshead Restaurant Associates Inc.: Rosenberg & Estis, P.C. successfully represented the plaintiff, Lundy's Management in persuading the court to reinstate a Yellowstone injunction, protecting Lundy's net lease. In this Supreme Court action, Brett Theis, a partner at Rosenberg & Estis, P.C., substituted in as Lundy's counsel of record after Lundy's had lost the protections of a Yellowstone injunction previously granted by Supreme Court and after the landlord purported to terminate Lundy's 49 year lease and commenced summary proceedings in Civil Court to evict.

Citing Lundy's substantial equitable interest in the property, including a multimillion dollar transformation of vacant and dilapidated structures to fully occupied buildings, Theis, in his first appearance as counsel for Lundy's, successfully persuaded Supreme Court Justice Carolyn Demarest to reinstate the Yellowstone injunction, nunc pro tunc, a year after those protections had expired, such that there was effectively no lapse in the Yellowstone injunction.

Theis was able to further protect his client's net lease by convincing the Supreme Court to remove the previously commenced eviction proceedings from civil court and to consolidate it with the Supreme Court Yellowstone action.

This was a tremendous victory for the client and an extraordinary remedy granted by the Court to prevent the forfeiture of our client's substantial equity and improvements.

(Supreme Court, New York County, Civil Court, Decided 09/23/15)
(Rosenberg & Estis, P.C. Team: Brett B. Theis )

Plaza Tower LLC v. Ruth's Hospitality Group Inc. (appeal) : Rosenberg & Estis, P.C. successfully represented the plaintiff-landlord, Plaza Tower LLC, in an action to collect unpaid charges due under a commercial lease from the tenant, Ruth's Chris Steak House. When the restaurant tenant failed to pay additional rent, Rosenberg & Estis sued the guarantor on the lease, Ruth's Chris Steak House's parent entity. After Supreme Court partially denied the landlord's motion for summary judgment, Rosenberg & Estis perfected an appeal in a mere two weeks. Within three weeks of oral argument of the appeal, the Appellate Division, First Department unanimously reversed Supreme Court, and awarded summary judgment to our client on all of the charges sought.

(Appellate Division, First Department, Decided 03/19/15, case reported at Plaza Tower LLC v Ruth's Hospitality Group, Inc., 126 AD3d 579 (1st Dept 2015)
(Rosenberg & Estis, P.C. Team: Jason R. Davidson )

East River Housing Corp. v. N.Y. State Division of Human Rights: R&E successfully represented a 1600+ unit cooperative corporation in defending them from claims of discrimination and negotiated a settlement of pending litigation with the U.S. Attorney’s Office. By achieving a settlement, we were able to avoid a protracted jury trial, saving our client a fortune in litigation costs and sparing the coop from any potential exposure.

The three complainants in the case had all harbored dogs in violation of the coop’s rules. The U.S. Attorney’s Office alleged that the coop engaged in discriminatory acts against complainants, and had engaged in a "pattern or practice of discrimination." The coop had at all times maintained that these charges were brought in bad faith by people who do not suffer a disability, and who did not require a reasonable accommodation.

As part of the settlement, there was no finding of discrimination or a "pattern or practice" of discrimination on behalf of the coop, which were the two main points of the government’s complaint. This is the first time that the Justice Department has agreed to a settlement requiring a tenant who purportedly suffers from a disability requiring a reasonable accommodation to permanently remove the pet.

(United States District Court, Southern District of New York - Decided: 03/19/2015)
(Rosenberg & Estis, P.C. Team: Bradley S. Silverbush , Anthony J. Virga and Nithin E. Jayadeva , for plaintiff)

Sixth Lenox Terrace Associates v Clendenin: R&E successfully represented Sixth Lenox Terrace Associates, in a non-payment proceeding. After we obtained interim orders from the court requiring the tenant to pay rent, the tenant made only a portion of the court-ordered payments. We moved for an order, among other things, striking the tenant's four affirmative defenses and three counterclaims. The court granted our motion and gave us a quick trial date at which the tenant is precluded from asserting his defenses.

(Civil Court, New York County - Decided: 02/26/2015)
(Rosenberg & Estis, P.C. Team: Jeanine Floyd , for petitioner)

A.E.C. Consulting & Expediting, INC v. 949 Park Development LLC: Plaintiff A.E.C. Consulting & Expediting Inc. ("Expediting") sued our client, 949 Park Development LLC ("949"), a real estate developer, for breach of contract and to obtain a court-ordered accounting to aid it in recovering certain consulting and expediting fees it claims were owed by 949. Plaintiff's claims were based on a written agreement made between 949 and non-party A.E.C. Consulting & Equity Inc. ("Equity").

We moved to dismiss the complaint, arguing that Plaintiff Expediting could not recover under an agreement to which it was not a party, that Plaintiff had no standing since it had suffered no injury in fact, and that Plaintiff failed to plead, and could not plead, a valid cause of action for an accounting. Plaintiff opposed and even cross moved for sanctions against us.

The Court agreed with our arguments and granted our motion to dismiss from the bench, explaining that the name discrepancy was not a mere misspelling, and that since Plaintiff did not, and could not, establish that it was a party to the agreement being sued on, Plaintiff could not state a viable claim against 949.

(Decision/Order dated November 20, 2014)
(Rosenberg & Estis, P.C. Team: Devin P. Kosar, for defendants)

315 East 65 th Parking LLC v. 315 East 65 th Owners Corp.: Rosenberg & Estis, P.C. successfully represented a long-term commercial garage tenant in its application for a Yellowstone injunction. In 2013, the landlord served a notice alleging that, in 2008, the tenant had failed to properly exercise its renewal option, and that as a result it was electing to terminate the tenant's purported month-to-month tenancy. Rosenberg & Estis, P.C. established to the Court that it met the four-part Yellowstone test: the tenant (1) held a commercial lease, (2) was served with a notice threatening to terminate its tenancy, (3) sought injunctive relief prior to the expiration of the cure period set forth in the notice, and (4) was ready, willing and able to cure the alleged breach (assuming one were found after trial) by any means short of vacating the premises. In issuing the Yellowstone injunction, the Court found that the tenant had, in fact, properly exercised its lease renewal option. The Court further held that (1) by accepting rent for nearly five years since the allegedly improper lease renewal (including the stepped-up rent attributable to the renewal), the landlord may have waived any right to object to the allegedly improper renewal; and (2) because the landlord sat on its rights and collected rent for five years without notifying the tenant of its objection to the exercise of the renewal option, forfeiture of the tenant's long-term lease would be unwarranted.

(Supreme Court, New York County; decided November 19, 2014)
(Rosenberg & Estis, P.C. team: Luise A. Barrack and Alexander Lycoyannis )

Randolph Jones Living Trust v. Eric Jones: R&E successfully represented Randolph Jones Living Trust (the "Trust"), in obtaining a judgment of possession of a three-bedroom penthouse apartment in Prospect Heights from respondent-licensee Eric Jones ("Respondent").

Respondent, an independent contractor, was hired by the Trust as a caregiver to Randolph Jones (no relation) and was given a license to occupy the apartment incident to his employment. The Trust subsequently terminated respondent's services by serving him with a ten day notice to quit. Respondent refused to vacate the apartment. As such, the Trust was compelled to temporarily relocate Randolph Jones from his apartment and commence a licensee holdover proceeding against respondent to remove him from the apartment. Respondent interposed and answered unrelated counterclaims relating to his employment. The Trust moved by summary judgment to recover the apartment. After oral argument, the Court determined that it was not in dispute that respondent was hired by the Trust and its trustees to work for Randolph Jones as his caregiver, respondent was paid by the trust, he was permitted to reside in the penthouse apartment as incident to his employment, and his employment and license to remain in the apartment had been terminated. The Court further determined that the Trust established its prima facie case, respondent's opposition did not raise material issues of fact and his unrelated counterclaims should be severed. As such the Court granted summary judgment in favor of the Trust.

(Civil Court of the City of New York: County of Kings - Decided: November 17, 2014)
(Rosenberg & Estis, P.C. Team: Neil C. Dwork for petitioner)

184 Joralemon LLC v. Brklyn Hts Condos, LLC, et al.: Rosenberg & Estis, P.C. successfully enforced a liquidated damages provision of a contract of sale which permitted Brooklyn Law School's contract assignee to retain a $1,262,000.00 contract deposit due to a purchaser's failure to close. Rosenberg & Estis, P.C. also successfully moved for the dismissal of nine third-party claims asserted by the defendant against Brooklyn Law School and four other individual third-party defendants, including claims for breach of contract, breach of the covenant of good faith and fair dealing, tortious interference with contract and prospective business opportunity, prima facie tort, misrepresentation and conversion.

(Order/Judgment of the Supreme Court, Kings County (Pfau, J.), dated August 14, 2012, affirmed by the Appellate Division, 2nd Department on May 7, 2014.)
(Rosenberg & Estis, P.C. Team: Jeffrey Turkel , Deborah E. Riegel and Brett B. Theis , for plaintiff)

S&P Associates of New York LLC v. Vera Salnikova and Ronald Stone : Rosenberg & Estis, P.C. successfully obtained a judgment of possession for a 2,777 square foot, five bedroom, four bathroom apartment with panoramic views of Central Park and the Time Warner Center. The building in which the apartment was located was converted to condominium ownership pursuant to a "non-eviction" offering plan. The tenant chose not to purchase her apartment at the "insider price" during the exclusive purchase period and was therefore offered a lease containing a market rent, pursuant to General Business Law 352-eeee(2)(c)(iv) (the "Martin Act"). The rental rate in the lease offered by the Sponsor increased from $8,050 to $15,500 per month. When the tenant refused to execute the lease, the Sponsor commenced eviction proceedings. The central issue in the proceeding was whether the monthly rent set by the Sponsor constituted an unconscionable rent under the Martin Act. The Court concluded that the Sponsor properly established the rent based upon the rents of comparable apartments in the building and that the tenant had not been subjected to an "unconscionable increase beyond ordinary rentals" in violation of the Martin Act. The Court also awarded the Sponsor a money judgment for use and occupancy in the amount of $139,840 and attorneys' fees.

(Civil Court, New York - Decided: October 17, 2011)
(Rosenberg & Estis, P.C. Team: Deborah E. Riegel and Brett B. Theis , for petitioner)

In re Metropolitan Transit Authority (Fulton Street Transit Center): Appellate Division affirmed Supreme Court's condemnation award in favor of our client of over $35 million, and also affirmed the award of attorneys' fees and expenses based on fact that the condemnation award was so far in excess of the MTA's initial offer of just compensation.

(Supreme Court, Appellate Division, First Department, New York - Decided: July 21, 2011)
(Rosenberg & Estis, P.C. Team: Warren A. Estis , Michael E. Feinstein , and Jeffrey Turkel , for DLR Properties, LLC, respondent)

Tenant v. Manhattan Skyline Management Corp. : Order declaring that no illusory prime tenancy existed based upon the fact that they entered into possession of the apartment as subtenants after the legal monthly rent exceeded $2000 and Plaintiffs were not entitled to any greater rights than they would have had if they entered into a lease after the tenant vacated.

(Supreme Court, Appellate Division, First Department, New York - Decided: June 16, 2011)
(Rosenberg & Estis, P.C. Team: Deborah E. Riegel and Alexander Lycoyannis , for respondents)

Modern Art Services, Ltd v. OCA Long Island City, LLC: In Modern Art, Rosenberg & Estis represented a commercial landlord of a building in Long Island City. After the landlord exercised its option to terminate the lease, the tenant sued the landlord, alleging breach of the warranty of habitability and nuisance. At a deposition, the tenant's principal admitted that the tenant had suffered no actual damages, but was seeking over one million dollars in compensation based on the tenant's alleged "aggravation." The landlord moved for summary judgment based on the principal's admission. Supreme Court denied the motion, ruling that if the principal's allegations as to the landlord's conduct were true, damages could be "inferred," despite the principal's statement that tenant had not suffered damages.  On appeal, the Appellate Division, Second Department reversed, holding that in response to the landlord's motion for summary judgment, the tenant was obligated to put forth affirmative proof of actual damages. Because the tenant failed to do so, the Appellate Division granted the landlord summary judgment dismissing the complaint.

(Appellate Division, Second Department - Decided: May 17, 2011)
(Rosenberg & Estis, P.C. Team: Jeffrey Turkel , for appellant)

Estate of Spitz v. Pokoik: The Supreme Court, Appellate Division, held that the breach of fiduciary duty claims arising out of the co-tenant's sale of an apartment to his son, allegedly at below-market price, did not fall within the scope of earlier release.

(Supreme Court, Appellate Division, First Department, New York - Decided: April 14, 2011)

(Rosenberg & Estis, P.C. Attorney: Norman Flitt, for respondent-appellant)

Casado v. Markus: In Casado v. Markus, various tenants challenged the legality of Rent Guidelines Board (RGB) Orders 40 and 41, which required certain rent stabilized tenants renewing their leases to pay an additional increase where their rents were below $1,000 per month. The tenants alleged that the RGB did not have the authority to impose this surcharge, which they described as a "tax on the poor." The Supreme Court and the Appellate Division agreed, invalidating the surcharge.  The matter went to the Court of Appeals, wherein Rosenberg & Estis represented amici curiae Rent Stabilization Association (RSA) and Community Housing Improvement Program (CHIP). The Court of Appeals, reversing, held that the Rent Stabilization Law did not prohibit the RGB from making "common sense distinctions" between discrete classes of apartments, as the RGB had been doing for 40 years. The Court reinstated the surcharges, authorizing landlords throughout New York City to collect millions of dollars in back surcharges.

(Court of Appeals of New York - Decided: March 24, 2011)

(Rosenberg & Estis, P.C. Team: Jeffrey Turkel and Alexander Lycoyannis, for Rent Stabilization Association of New York City, Inc. and another, amici curiae)