FILED: NEW YORK COUNTY CLERK 08/18/2010 INDEX NO. 651303/2010 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/18/2010 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK FREDERICK GOLDMAN, INC., Plaintiff, v. ABNER PROPERTIES COMPANY, Index No. SUMMONS Plaintiff designates New York County as the place of trial based upon the location of the premises Defendant. TO THE ABOVE-NAMED DEFENDANT: YOU ARE HEREBY SUMMONED to answer the Complaint in this action within twenty days after the service of this summons, exclusive of the day of service or within thirty days after service is completed if the summons is not personally delivered to you within the State of New York. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. Plaintiff designates New York County as the place of trial. Venue is based upon the county in which the subject property is situated. Dated: New York, New York August 17, 2010 DICKSTEIN SHAPIRO LLP By: /s/ Neal S. Barlia Neal S. Barlia Jeffrey L. Schulman 1633 Broadway New York, New York 10019-6708 Telephone: (212) 277-6500 Facsimile: (212) 277-6501 Attorneys for Plaintiff Frederick Goldman, Inc. Defendant s Address: Abner Properties Company 40 East 69th Street New York, New York 10021
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK FREDERICK GOLDMAN, INC., Plaintiff, Index No. VERIFIED COMPLAINT v. ABNER PROPERTIES COMPANY, Defendant. Plaintiff, Frederick Goldman, Inc. ( Tenant ), by its attorneys Dickstein Shapiro LLP, for its verified complaint against Defendant, Abner Properties Company ( Landlord or Owner ), alleges as follows: PRELIMINARY STATEMENT 1. This action has its genesis in Tenant being wrongfully compelled to seek a Yellowstone injunction and related relief in order to preserve its tenancy in the premises known as 154 West 14th Street, New York, New York (the Premises ). Tenant has been operating its family owned and operated jewelry manufacturing business on numerous floors throughout the Premises for approximately forty years pursuant to a long-standing lease agreement that has been extended by Landlord on numerous occasions. 2. Tenant employs approximately 280 employees and currently leases approximately 70,000 square feet of the Premises (the Demised Premises ), pursuant to a lease agreement dated October 23, 1996, as thereafter modified (collectively, the Lease ). Tenant has always done so in good stead. Notwithstanding, Landlord waited in the shadows serving a purported default notice on Tenant (the Default Notice ) three days after Tenant exercised its option to
renew the Lease for an additional five year term. Annexed hereto as Exhibit A is a true and correct copy of the Default Notice. 1 3. The basis for Landlord s bad faith termination threat contained in the Default Notice are 56 Purported Defaults which range from: (i) the petty Purported Default Nos. 4, 36, 40, 48 and 52, requiring Tenant to merely relocate various storage items, computer cables, office furniture and equipment so as not to block access to doors, emergency signage and sprinkler control valves (all of which have already been cured by Tenant much of which were cured prior to Tenant s receipt of the Default Notice); Purported Default Nos. 3, 21, 22 and 27, requiring routine maintenance to lights and signage and minor repairs all of which have been or are in the process of being cured since Tenant s receipt of the Default Notice; (ii) to the routine 12 Purported Defaults regarding floor/sprinkler/ventilation/fire or updated construction plans; 6 Purported Defaults regarding equipment use permits; 4 Purported Defaults regarding approval of applications; and 6 Purported Defaults regarding certificates of completion; (iii) to the ancient Purported Default Nos. 4, 6, 7, 18, 26, 29 and 47, relating to permits or plans approved and filed two decades ago and various conditions in the Premises that pre-date Tenant s tenancy; (iv) to the incomprehensible Purported Default Nos. 11 and 39, purportedly relating to the ventilation of air in the Premises; Purported Default Nos. 7 and 54 refer to space that is not part of the Demised Premises; and Purported Default No. 56 refers to a stage room that does not exist. 4. None of the Purported Defaults are monetary or are alleged to involve an immediately dangerous or hazardous condition. Indeed, some of the Purported Defaults refer to 1 Annexed hereto as Exhibit A1 is a Default Notice Chart created by Tenant for the convenience of the Court. The Default Notice Chart numbers all of the defaults listed in the Default Notice in consecutive order as they appear in the Default Notice. Each will be individually referred to herein as Purported Default No. or as a Purported Default and collectively as the Purported Defaults. 2
conditions that are decades old, and approximately one-half of the Purported Defaults merely request that Landlord be provided with copies of permits and plans relating to Tenant s equipment or with respect to the millions of dollars in renovations and improvements made by Tenant to the Demised Premises. None of the Purported Defaults are sufficiently material to justify forfeiture of the Lease, evict Tenant or displace the business and the hundreds of individuals it employs. 5. The only conclusion that can be derived from these facts is that Landlord served the Default Notice for the sole purpose of exerting financial pressure and extracting financial concessions from Tenant all under the guise that Tenant has violated the terms and conditions of the Lease and that those violations mandate eviction and forfeiture of the Lease. Had Landlord intended otherwise, it would have and certainly should have communicated with Tenant in a good faith effort to cure any actual violations short of serving the Default Notice and compelling Tenant to file the instant application. To the contrary, Landlord s failure to do so, in conjunction with alleging the Purported Defaults, which wholly lack any merit, demonstrate its bad faith intentions and motivations. 6. The foregoing represents examples of alleged violations set forth in the Default Notice none of which, individually or in the aggregate, warrant forfeiture of the Lease. Tenant has not breached the Lease in any material respect. To the contrary, Tenant s tenancy in the Premises, in all material respects has been in compliance with the Lease in effect at the relevant times; and has been and remains lawful, proper and in compliance with applicable law. However, even if Tenant were found to have been in default in any respect or otherwise not in compliance with applicable law, Tenant has already cured many of the Purported Defaults and is presently undertaking all necessary steps to cure others even those that may ultimately be 3
deemed the responsibility of Landlord. To the extent ordered by this Court, Tenant has been and remains ready, willing and able to take all additional steps necessary to cure any remaining default in order to avoid forfeiture of the Lease and vacature of the Demised Premises. 7. In the interim, due to Landlord s threat to Tenant s valuable leasehold, and to prevent Landlord from terminating the Lease pursuant to the Default Notice, Tenant now brings this action for declaratory and permanent injunctive relief, as well as an application for a temporary restraining order and a Yellowstone preliminary injunction to maintain the status quo while the parties litigate the merits of the Purported Defaults alleged by Landlord in the Default Notice. Tenant plainly satisfies the four requirements for a Yellowstone injunction, in that (i) it has a commercial lease, (ii) its tenancy thereunder has been threatened by the Default Notice, (iii) it has the ability and willingness to cure the Purported Defaults if any are found to exist, and (iv) this application is brought prior to the expiration of the cure period set forth in the Default Notice. STATEMENT OF FACTS A. The Parties 8. Tenant is a domestic business corporation with its principal place of business located at the Premises. Tenant has operated its jewelry manufacturing business in some or all of the Premises since 1969-1970, a period of forty years. Tenant currently employs approximately 280 employees at the Demised Premises. 9. Upon information and belief, Landlord is a domestic limited partnership with its principal place of business located at 40 East 69th Street, New York, New York. B. The Relevant Lease Provisions 10. Tenant has been in all or part of the Premises for approximately forty years, and since October 23, 1996, under and in accordance with the Lease. A true and correct copy of the 4
Lease, including all subsequent lease modification agreements, is annexed hereto as Exhibit B and incorporated by reference herein. Since entering into the Lease, Tenant has expended approximately $2,500,000 in capital improvements to the Demised Premises. The Lease provisions most relevant to this action are described below. 11. Term: The initial term of the Lease was through August 31, 2011. Tenant has exercised its renewal option to further extend the term of the Lease through and including August 31, 2016. 12. Alterations: Article 3 of the Lease provides that Landlord s consent is not required for changes to the Premises except for structural changes. Article 3 represents an express change from the pre-printed form of the Lease which required Landlord s consent for all alterations (not just structural changes as is presently required). See Exhibit B at Article 3, which provides as follows: Id. (emphasis added). Tenant shall make no structural changes in or to the demised premises of any nature without Owner's prior written consent, except as otherwise provided in Exhibit C as attached hereto and incorporated herein by reference. 13. Tenant may make alterations which are non-structural using contractors approved by Landlord which approval shall not be unreasonable withheld. The Lease provides as follows: Tenant at Tenant's expense, may make alterations, installations, additions or improvements which are non-structural and which do not affect utility services or plumbing and electrical lines, in or to the interior of the demised premises using contractors or mechanics first approved by Owner, which approval shall not be unreasonably withheld or delayed. The contractors which Tenant has previously used in performing alterations to the demised premises under its previous leases with Landlord are deemed approved. Tenant shall, at its expense, before making any alterations, additions, installations or improvements obtain all permits, approval and certificates required by any governmental or quasigovernmental bodies and (upon completion) certificates of final approval thereof and shall deliver promptly duplicates of all such permits, approvals 5
and certificates to Owner, provided that Landlord shall cure all existing and future violations relating to the 6th floor and 12th floor space and all existing and future building wide violations which are prerequisite to Tenant obtaining such permits and approvals. Id. 14. Repairs: Article 4 of the Lease provides that Landlord shall make all structural repairs not required to be made by Tenant, and that Tenant shall: See Exhibit B at Article 4. take good care of the demised premises including the bathrooms and lavatory facilities (if the demised premises encompass the entire floor of the building) and the windows and window frames and, the fixtures and appurtenances therein and at Tenant's sole cost and expense promptly make all repairs thereto and to the building, whether structural or nonstructural in nature, caused by or resulting from the carelessness, omission, neglect or improper conduct of Tenant, Tenant s servants, employees, invitees, or licensees, and whether or not arising from such Tenant conduct or omissions, when required by other provisions of this lease, including Article 6. Tenant shall also repair all damage to the building and the demised premises caused by the moving of Tenant's fixtures, furniture and equipment. 15. Requirements of Law: Article 6 of the preprinted form of the Lease sets forth the Tenant s obligations with respect to compliance with law. However, the preprinted Article 6 was substantially modified to limit Tenant s responsibility and to place substantially all responsibility for compliance with laws upon Landlord. In this respect, the addendum to Article 6, set forth in paragraph 76 of a Rider to the Lease, states: Anything contained in this Article 6 to the contrary notwithstanding, Tenant shall not be required to perform any work in the building or the demised premises required under the provisions of New York City local Law No. 5. Landlord shall, at its own cost and expense, comply with all other laws, rules, orders, regulations and requirements which require structural repairs to or structural alterations of the building or the demised premises but may consent, appeal and defer compliance with the same provided that the use or occupancy of the demised premises by Tenant shall not be interfered with. See Exhibit B at Articles 6, 76. 6
16. Defaults: Article 17 of the Lease describes defaults and the parties rights if a default occurs including Tenant s right to cure and Landlord s right to terminate the Lease if Tenant fails to do so. For example: See Exhibit B at Article 17. (1) If Tenant defaults in fulfilling any of the covenants of this lease other than the covenants for the payment of rent or additional rent; then, upon Owner serving a written, thirty (30) days notice upon Tenant specifying the nature of said default and upon the expiration of said thirty (30) days, if Tenant shall have failed to comply with or remedy such default, or if the said default or omission complained of shall be of a nature that the same cannot be completely cured or remedied within said thirty (30) days period, and if Tenant shall not have diligently commenced curing such default, then Owner may serve a written three (3) days notice of cancellation of this lease upon Tenant, and upon the expiration of said three (3) days this lease and the term thereunder shall end and expire as fully and completely as if the expiration of such three (3) day period were the day herein definitely fixed for the end and expiration of this lease and the term thereof and Tenant shall then quit and surrender the demised premises to Owner but Tenant shall remain liable as hereinafter provided. 17. Tenant s Default: Article 80 of the Lease confirms that [w]herever in this lease reference is made to Tenant s default, the same shall mean after the expiration of all applicable grace or notice periods. See Exhibit B at Article 80, p. R16. 18. Landlord s Consent: Article 81 of the Lease requires Landlord to not unreasonably withhold or unreasonably delay consent where Landlord s consent is otherwise required under the terms of the Lease. Id. C. The Negotiations With Respect To An Early Surrender Of The Lease 19. In and around September 2008, the parties engaged in negotiations with respect to an early termination of the Lease. 20. Although those negotiations did not result in an actual early surrender of the Demised Premises, nor for that matter, any other binding agreement or lease modification, the negotiations memorialized Landlord s agreement in principal to pay Tenant the sum of 7
$3,750,000 as a lease surrender payment in the event that an early surrender was agreed upon. In negotiating this agreement, Landlord acknowledged its understanding that Tenant would likely need at least two years to arrange suitable alternative space to replace its leasehold in the Premises. D. Landlord Serves The Default Notice Immediately After Tenant Exercises Its Renewal Option 21. In addition to the Lease provisions set forth above, Tenant has the option to extend the Lease for an additional term of five years, from September 1, 2011 to August 31, 2016. See Exhibit B at Article 91. 22. On July 13, 2010, Tenant validly exercised its renewal option to extend the term of the Lease through and including August 31, 2016. A true and correct copy of Tenant s letter dated July 13, 2010, by which it exercised its renewal option, is attached hereto as Exhibit C and is incorporated by reference herein. 23. Three days later, Landlord served the Default Notice on Tenant. See Exhibit A. E. The Purported Defaults in the Default Notice Are Meritless 24. Although Landlord contends that each individual Purported Default is a violation of substantial obligations of [Tenant s] tenancy, a review of the Purported Defaults demonstrates otherwise. The following are non-limiting examples of Landlord s meritless Purported Defaults. (a) Storage Of Furniture 25. Purported Default Nos. 4, 36, 40, 48 and 52 allege that Tenant has stored items, equipment or furniture in a manner that blocks egress or access to sprinkler control valves. 26. Prior to serving the Default Notice, Landlord demanded that Tenant relocate furniture that was blocking a means of egress from a staff room. 8
27. Tenant immediately did so and Landlord had actual knowledge that Tenant cured this condition months prior to its service of the Default Notice. 28. Each of Purported Default Nos. 4, 36, 40, 48 and 50 have been cured, except for the relocation of certain computer cables, which is in the process of being cured. The allegations that form the basis for these Purported Defaults, even if true, individually or in the aggregate, do not constitute a violation of substantial obligations of [Tenant s] tenancy. (b) Areas That Are Not Within Tenant s Demised Premises 29. Purported Default Nos. 7 and 54 allege violations in space that is not within the Demised Premises. 30. Purported Default No. 54 is for the alleged failure to provide certificates of completion with respect to bathrooms located on the 12th Floor. The 12th floor bathrooms, however, are not within Tenant s Demised Premises. 31. Purported Default No. 7 seeks Tenant s eviction based upon a New York City Building Department application with respect to work on the second and eleventh floors that was apparently disapproved in 1991. Tenant has not occupied any portion of the eleventh floor for over a decade and has never occupied the eleventh floor in its entirety. 32. The allegations that form the basis for Purported Default Nos. 7 and 54, even if true, do not constitute a violation of substantial obligations of [Tenant s] tenancy. (c) Failure To Install Adequate Lighting In The Basement 33. Purported Default No. 3 alleges that the lighting in the basement is inadequate. 34. The basement lighting has existed substantially in its present form since before the Lease was executed in October 1996. 35. Landlord has set forth no basis for Purported Default No. 3, other than its own conclusory statement that the basement lighting is inadequate. 9
36. The allegations that form the basis for Purported Default No. 3, even if true, do not constitute a violation of substantial obligations of [Tenant s] tenancy. (d) Ancient Violations 37. Landlord asserts that Tenant is in violation of the Lease with respect to issues that pre-date the Lease or Tenant s tenancy. 38. Purported Default Nos. 4 (basement lighting); 6 (installation of sheetrock over interior windows); 7 (disapproved New York City Department of Buildings application dating back to 1991); and 18 and 26 (plans dating back to 1990 not produced) all pre-date the Lease. 39. The allegations that form the basis for Purported Default Nos. 4, 6, 7, 18 and 26, even if true, individually or in the aggregate, do not constitute a violation of substantial obligations of [Tenant s] tenancy. (e) Chemical Drainage 40. Purported Default No. 42 alleges that Tenant drains or has drained chemicals from the Premises in a harmful and dangerous manner, jeopardizing the health and safety of Tenant s employees and/or others that enter Landlord s building. 41. Landlord has never identified any individual, entity or agency which has made a claim or alleged to have sustained injuries or damages of any kind resulting from any alleged discharge by Tenant. 42. Tenant holds and remains in compliance with a wastewater permit issued to Tenant by the New York City Department of Environmental Protection. 43. Tenant routinely has samples of its wastewater analyzed and the Demised Premises inspected by the New York City Department of Environmental Protection, in addition to Tenant s self-monitoring efforts. 10
44. The allegations that form the basis for Purported Default No. 42, even if true, do not constitute a violation of substantial obligations of [Tenant s] tenancy. F. Landlord s Bad Faith 45. Landlord s bad faith permeates this proceeding. It is evident that Landlord has embarked on a campaign to terminate Tenant s Lease. Landlord s engineer inspected the Demised Premises in the spring of 2010 under the guise of conducting a walkthrough in order to update existing floor plans. Landlord apparently used the inspection to create the list of Purported Defaults that would later be enumerated in and serve as the basis for the Default Notice. 46. Yet, instead of providing its list of the Purported Defaults generated during the inspection to Tenant for Tenant s review and input, or otherwise conferring with Tenant in a good faith effort to rectify the Purported Defaults, Landlord simply served the Default Notice, claiming that each and every item, no matter how immaterial and untimely, was a violation of substantial obligations of the Lease. 47. Any landlord acting in good faith would have presented its list of purported defaults to such a long standing tenant for its input and would have worked with the tenant to cure any defects that were actually necessary. 48. Landlord s motivation is obvious. The rent under and accordance with the Lease is substantially below market. In recognition of this fact, Landlord engaged in negotiations to buy-out Tenant s interest in the Lease for $3,750,000. Landlord is now seeking to get that additional value by the assertion of 56 Purported Defaults, without providing Tenant any prior notice of all but one or two of the Purported Defaults, in an obvious attempt to use the leverage of the termination of its valuable leasehold to coerce Tenant to relinquish its leasehold interest. 11
49. Tenant has cured and has already diligently commenced efforts to cure all of the Purported Defaults that are within its Demised Premises and as to which it understands the nature of the Purported Defaults. 50. In furtherance of those good faith efforts, upon receipt of the Default Notice, Tenant contacted Landlord and expressed its interest in reaching an amicable resolution one which would include the curing of any actual defaults and permitting Tenant to quietly enjoy the Demised Premises for the additional five year period to which it is otherwise entitled under the Lease. To that end, Tenant sought a thirty (30) day extension of the cure period. Landlord rejected Tenant s request. 51. On August 11, 2010, Tenant s counsel sent a letter to Landlord s counsel in which it reiterated its desire to (i) reach an amicable resolution to this dispute; (ii) avoid the need for commencing the instant action; and (iii) cure any actual defaults under the Lease. Landlord has not responded to that letter. G. Tenant Is Ready, Willing and Able to Cure Any Defaults Deemed to Exist 52. As set forth herein, Tenant has been and remains ready, willing and able to cure any actual defaults by any means short of vacating the Demised Premises to the extent that the Court determines Tenant to be in violation of the Lease. 53. THUS, IF THIS COURT SHOULD CONCLUDE THAT ANY PURPORTED DEFAULTS ARE THE RESPONSIBILITY OF TENANT, TENANT IS READY, WILLING AND ABLE TO CURE ANY SUCH PURPORTED DEFAULTS RATHER THAN FORFEIT THE REMAINDER OF ITS VALUABLE INTEREST IN THE DEMISED PREMISES PURSUANT TO THE LEASE. 54. Tenant is entitled to damages stemming from any Purported Defaults which are cured by Tenant but later determined to be the responsibility of the Landlord. 12
55. Tenant has no adequate remedy at law for Landlord's wrongful efforts to terminate the Lease. FIRST CAUSE OF ACTION (Declaratory Judgment Tenant Is Not In Default Of The Lease) 56. Tenant repeats and realleges each and every allegation made in paragraphs 1 through 55 as if fully set forth herein. 57. Landlord contends that Tenant is in default under the terms and conditions of the Lease based upon 56 enumerated Purported Defaults. 58. Tenant is not in default under the Lease as, to the extent any Purported Defaults exist: (i) they have already been cured, (ii) Tenant has commenced to cure any such Purported Default; (iii) Tenant has the ability and desire to cure those Purported Defaults by any means short of forfeiting its valuable Lease; and/or (iv) they are the responsibility of Landlord as the owner of the Premises. 59. To the extent Tenant is found to be in default under the Lease based upon any Purported Default, any such default does not justify termination of the Lease, and eviction and vacature of the Premises. 60. By virtue of the foregoing, an actual and justiciable controversy exists between Landlord and Tenant as to whether Tenant is in default under the Lease by reason of any Purported Default or otherwise. 61. Tenant requires and is entitled to a declaration that it is not in default under the Lease by reason of the Purported Defaults set forth in the Default Notice. 13
SECOND CAUSE OF ACTION (Declaratory Judgment That The Default Notice Is A Nullity) 62. Tenant repeats and realleges each and every allegation made in paragraphs 1 through 61 as if fully set forth herein. 63. There exists an actual controversy of justiciable issues between Landlord and Tenant regarding the propriety of the Default Notice and the individual Purported Defaults alleged therein, which controversy may be determined by a declaratory judgment of this Court. Expeditious resolution of this controversy is both necessary and proper. 64. Accordingly, Tenant is entitled to a declaration that the Default Notice is of no force and effect and is therefore deemed a nullity. THIRD CAUSE OF ACTION (Breach Of Contract) 65. Tenant repeats and realleges each and every allegation made in paragraphs 1 through 64 as if fully set forth herein. 66. The Lease constitutes a valid and binding contract between Landlord and Tenant. 67. Landlord s generation of Purported Defaults and service of the Default Notice constitutes a breach of the Lease. 68. As a direct and proximate result of Landlord s breach of the Lease, Tenant has been damaged in an amount to be determined at trial, but in no event, less than (i) the amounts expended by Tenant to cure Purported Defaults which are ultimately declared the responsibility and obligation of Landlord, and (ii) all costs, charges and expenses, including attorneys fees and disbursements incurred by Tenant as a result of Landlord s bad faith breach of the Lease. 14
FOURTH CAUSE OF ACTION (Breach Of The Covenant Of Good Faith And Fair Dealing) 69. Tenant repeats and realleges each and every allegation made in paragraphs 1 through 68 as if fully set forth herein. 70. The Lease contains an implied covenant of good faith and fair dealing under which the Landlord must deal with Tenant honestly and in good faith with respect to the performance of the Lease and its enforcement of the terms of the Lease. 71. Landlord had exercised its discretion under and pursuant to the Lease in bad faith, and has acted to (i) frustrate Tenant s rights under and pursuant to the Lease, (ii) deprive Tenant of its contractual bargain, and (iii) to realize a gain for itself contrary to the terms of the Lease. 72. Landlord s conduct as alleged herein constitutes a breach of the covenant of good faith and fair dealing owed to Tenant. 73. As a result of the foregoing, Tenant has suffered substantial damages in an amount to be proven at trial. WHEREFORE, Tenant respectfully prays for judgment as follows: a. On the First Cause of Action, issue a declaration that the Default Notice is of no force and effect, and adjudging and decreeing that Tenant is not in default under the Lease by reason of any of the Purported Defaults and allegations contained therein; b. On the Second Cause of Action, issue a declaration that the Default Notice is stricken as null and void; c. Temporarily, preliminarily and permanently enjoining and restraining Landlord, its agents, attorneys, servants and all persons acting under it or on its behalf, from taking any action or otherwise engaging in any conduct to interfere with Tenant's performance under the Lease, or to cancel or terminate the Lease based on the Default Notice or any of the Purported Defaults, or declaring a default with regard to the Lease, or attempting to recover possession of the Premises based on any alleged acts of default set forth in the Default Notice, until thirty days following a final determination and notice of entry of final judgment in this action that a default exists under the Lease, and until Tenant fails to 15
commence to cure such default within the time permitted for it to do so under the Lease, and tolling the running of Tenant's time to cure the Purported Defaults that the Default Notice purports to assert; d. On the Third Cause of Action, award Tenant the damages suffered by reason of Landlord s breach of the Lease, in an amount to be determined at trial together with appropriate interest; e. On the Fourth Cause of Action, award Tenant the damages suffered by reason of Landlord s bad faith conduct, in an amount to be determined at trial together with appropriate interest; f. Granting Tenant the costs, charges, expenses and disbursements of this action, including attorneys fees incurred by Tenant; and g. Granting Tenant such other and further relief as is just and proper. Dated: New York, New York August 17, 2010 DICKSTEIN SHAPIRO LLP By: /s/ Neal S. Barlia Neal S. Barlia Jeffrey L. Schulman 1633 Broadway New York, New York 10019-6708 Telephone: (212) 277-6500 Facsimile: (212) 277-6501 Attorneys for Plaintiff Frederick Goldman, Inc. 16