FILED: NEW YORK COUNTY CLERK 12/12/2016 10/30/2017 03:39 06:55 PM INDEX NO. 656279/2016 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 12/12/2016 10/30/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X 12 WEST 21ST STREET ASSOCIATES LLC, Plaintiff, Index No. /16 SUMMONS - against CLAUDIO BALLARD, Defendant. TO THE ABOVE NAMED DEFENDANT: X Plaintiff designates New York County as the place of trial. The basis of venue is, inter alia, that the leased premises, which is the subject of this action is situated in New York County. YOU ARE HEREBY SUMMONED to answer the verified 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 the plaintiff's attorneys within twenty (20) days after the service of this summons, exclusive of the day of service; or within thirty (30) days after completion of service made in any other manner then by personal delivery within the State. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the verified complaint. Dated: New York, New York December 6, 2016 Luise.Barrack 733 hird Ave ue New rk, Ne York 10017 (212) 86 RE~57406\0538\654056v 1 1 of 12
~~~ Claudio Ballard 4611 North Federal Highway, Apt. 605 Pompano Beach, Florida 33064 RE\57406\0538\654056v1-2- 2 of 12
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------- X 12 WEST 21ST STREET ASSOCIATES LLC, Plaintiff, Index No. /16 VERIFIED COMPLAINT - against CLAUDIO BALLARD, Defendant. ------------------------------------------------------------------ X Plaintiff 12 West 21st Street Associates LLC ("Plaintiff'), by its attorneys, Rosenberg & Estis, P.C., for its Verified Complaint, alleges as follows: A. The Parties 1. Plaintiff is a New York limited liability company, with offices at c/o Meringoff Properties, Inc., 30 West 26th Street, Eighth Floor, New York, New York 10010, in the City, County and State of New York, and the owner of the building known as and located at 12 West 21st Street, New York, New York 10010 (the "Building"). 2. Upon information and belief, defendant Claudio Ballard ("Defendant") is an individual and a resident of the State of Florida, having an address, upon information and belief, at 4611 North Federal Highway, Apt. 605, Pompano Beach, Florida 33064. 3. Non-party Iconic Asset Management LLC, is the former commercial tenant of the entire eighth floor in the Building (the "Premises") pursuant to a written lease agreement and rider, dated February 23, 2011, between Plaintiff, as landlord, and Iconic Asset Management LLC ("Tenant") as tenant, as further amended by an Amendment of Lease dated December 2, 2013 (collectively, the "Lease"). RE\57406\0538\654056v 1-3- 3 of 12
B. The Lease i. Tenant's Fixed Rent Obligations 4. The Lease term was seven (7) years, commencing March 1, 2011 and expiring February 28, 2018. 5. Pursuant to paragraph 41(a)(vi) of the Lease, Tenant was required to pay fixed rent ("Fixed Rent") to Plaintiff "on or before the first day of each calendar month,'' payable in monthly installments of $14,504.52 for the period of March 1, 2016 through February 28, 2017. ii. Tenant's Additional Rent Obligations stating: 6. The Lease also required Tenant to pay additional rent ("Additional Rent"), 39. Notwithstanding anything to the contrary contained in this Lease, any monies due Landlord other than the Fixed Rent are deemed to be additional rent, and any default in the payment of additional rent shall give to Landlord the same remedies as it has with respect to a default in the payment of Fixed Rent. 7. Pursuant to the paragraph 28 of the Lease, Tenant was obligated to pay water charges to Plaintiff in the amount of $100.00 per month. 8. Pursuant to paragraph 29 of the Lease, Tenant was obligated to pay sprinkler charges to Plaintiff in the amount of $100.00 per month. 9. Pursuant to paragraph 40 of the Lease, Tenant was obligated to pay 8.33% of any and all increases in real estate taxes or assessments above the July 1, 2011 base tax year to Plaintiff. RE\57406\053 8\654056v 1-4- 4 of 12
10. Pursuant to paragraph 62 of the Lease, Tenant was also obligated to pay certain late charges and interest to Plaintiff due to Tenant's nonpayment of Fixed Rent and/or Additional Rent. iii. The Acceleration Clause 11. Paragraph 76 of the Lease provides, in relevant part: In the case of any default, re-entry, expiration and/or dispossession by summary proceedings or otherwise, (a) the Fixed Rent and additional rent shall become due thereupon and be paid to the time of such re-entry, dispossession and/or expiration, together with such expenses as Landlord may incur for legal expenses, attorneys' fees, brokerage, and/or putting the Demised Premises in good order or for preparing the same for re-rental; (b) Landlord may re-let the Demised Premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms, which may at Landlord's option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and may grant concessions or free rent; and/or (c) Tenant or the legal representative of Tenant shall also pay Landlord as liquidated damages for the failure of Tenant to observe and perform said Tenant's covenants herein contained, any deficiency between the rent and additional rents hereby reserved and/or covenanted to be paid and the net amount, if any, of the rents collected or to be collected on account of the lease or leases of the Demised Premises for each month the period would otherwise have constituted the balance of the term of this Lease...In computing such damages there shall be added to said deficiency such expenses as Landlord may incur in connection with re-letting, such as legal expenses, attorneys' fees, brokerage and for keeping the Demised Premises in good order or for preparing same for reletting... In lieu thereof, Landlord may immediately accelerate such deficiency for the entire balance of the term. Any installment of rent becoming due hereunder after the date of such acceleration shall RE\57406\0538\654056v1-5- 5 of 12
be discounted at the rate of four percent (4%) per annum. [emphasis added]. C. Defendant Guaranteed Tenant's Obligations Under the Lease 12. In order to induce Plaintiff to enter into the Lease with Tenant, Defendant executed the absolute, irrevocable and unconditional Guaranty on February 23, 2011 (the "Guaranty"), pursuant to which Defendant guaranteed Tenant's full and timely compliance with, and performance of, Tenant's obligations under the Lease, including, without limitation, the timely and full payment of all Fixed Rent and Additional Rent due under the Lease. 13. Specifically, paragraph 4(A) of the Guaranty provides, in relevant part: Guarantor absolutely, irrevocably and unconditionally guarantees to Landlord the punctual payment, performance and fulfillment of all of the Obligations...' Guarantor hereby fully indemnifies and holds Landlord harmless from and against any cost, claim, liability, damage or expense (including but not limited to reasonable attorneys' fees and disbursements to the extent provided in Paragraph 7 hereof which Landlord may incur in the event Guarantor does not punctually pay, perform and/or fulfill any of the Obligations. 14. Paragraph 5 of the Guaranty further provides: Guarantor hereby waives notice of nonpayment, nonperformance or nonobservance of any notice of acceptance this Guaranty and any other notice to or demand upon Guarantor which Landlord might otherwise be required to give or make in connection with any matter relating to this Guaranty. 15. Moreover, paragraph 6 of the Guaranty provides: This Guaranty is direct and immediate and may be enforced without prior resort by Landlord to any right of dispossess or other remedies it may have under the Lease or against Tenant or any other 1 Pursuant to paragraph 3 of the Guaranty, "Obligations" refers to "all obligations of Tenant arising under or in connection with the Lease, including but not limited to Tenant's obligations to pay any and all fixed rent, percentage rent and additional rent due and owing under the Lease." RE\57406\0538\654056v 1-6- 6 of 12
person or against any security or collateral and without the necessity of any suit or proceedings by Landlord of any nature whatsoever against Tenant. 16. Finally, Paragraph 8 of the Guaranty provides: If Guarantor fails to pay any amount payable under this Guaranty when such amount is due...all such amounts shall accrue at the rate of eighteen (18%) percent per annum until such amount is paid. D. Tenant's Material Breach of the Lease 17. In material breach of the Lease, Tenant has failed to pay Fixed Rent and Additional Rent when due under the Lease. 18. Accordingly, on September 22, 2016, Plaintiff served Tenant with a Three (3) Day Notice to Tenant, dated September 21, 2016 (the "Rent Demand"), demanding payment of $29,507.83 (the "Arrears"), representing Fixed Rent and Additional Rent due and owing under the Lease for the period of September 1, 2016 through September 10, 2016. 19. Tenant failed to pay the Arrears on or before September 29, 2016, as required by the Rent Demand, or at any time thereafter. E. Upon Tenant's Default, Plaintiff Commenced allon-payment Proceeding and Elected to Accelerate the Rent Pursuant to Paragraph 76 of the Lease 20. As a result of Tenant's default in its monetary obligations under the Lease, Plaintiff commenced a nonpayment proceeding against Tenant in the Civil Court of the City of New York, County of New York, captioned 12 West 21st Street Associates LLC v. Iconic Asset Management LLC, et al., L&T Index No. 77605/16 (the "Nonpayment Proceeding") seeking, inter alia, the Arrears and/or to reclaim possession of the Premises. 21. Tenant defaulted in the Nonpayment Proceeding and the Court issued a judgment of possession for the premises (the "Judgment") and a warrant of eviction in favor of Plaintiff and against Tenant (the "Warrant") RE\57406\0538\654056v I -7-7 of 12
22. On November 29, 2016, the Marshal executed the Warrant and returned possession of the Premises to Plaintiff. 23. In light of Tenant's default, Plaintiff has elected to accelerate the rent due to Plaintiff pursuant to paragraph 76 of the Lease for the entire balance of the term, ending February 28, 2018. AS AND FOR A FIRST CAUSE OF ACTION (Breach of Contract The Arrears) Arrears. 24. Plaintiff repeats and realleges all prior statements. 25. Pursuant to the Lease, Tenant is obligated to timely pay Plaintiff the 26. Tenant has defaulted under the Lease by failing to pay Plaintiff the Arrears, in the amount of $29,507.83, through September, 2016. 27. Pursuant to the terms of the Guaranty, Defendant is liable to Plaintiff for, inter alia, the full and prompt payment of the Arrears. 28. Neither Defendant, nor Tenant has paid the Arrears. 29. Plaintiff has performed its obligations under the Lease and the Guaranty. 30. By reason of the foregoing, Plaintiff has suffered damages, in an amount not less than $29,507.83, plus interest, costs and attorneys' fees, the full amount of which shall be established at trial. AS AND FOR A SECOND CAUSE OF ACTION (Rent Acceleration) 31. Plaintiff repeats and realleges all prior statements. 32. Tenant, in breach and default of its obligations under the Lease, has failed to pay Fixed Rent and Additional Rent from September 1, 2016 to present. RE\57406\0538\654056v 1-8- 8 of 12
33. Upon Tenant's breach and default, Plaintiff elected to accelerate the Fixed Rent and Additional Rent for the entire balance of the term pursuant to paragraph 76 of the Lease. 34. As a result, for the period of September 29, 2016 through February 28, 2018, the Lease expiration date, Tenant and Defendant are liable to Plaintiff for the Fixed Rent and Additional Rent, including real estate tax escalations, water and sprinkler charges, together with such expenses Plaintiff may incur for re-letting, including legal expenses, brokerage, putting the Premises in good order and/or preparing the Premises for re-rental, as well as attorneys' fees. 35. By reason of the foregoing, Plaintiff is entitled to judgment against Defendant in amount not less than $249,241.68, representing the sum of $250,928.15 in Fixed Rent through the end of the Lease Term, $1,700.00 in water charges through the end of the Lease Term and $1,700.00 in sprinkler charges through the end of the Lease Term, discounted at the rate of 4% per annum as required by Article 76 of the Lease, together with real estate tax escalations, and all associated expenses in connection with Tenant's breach and default of its obligations under the Lease, in an amount to be determined at trial. AS AND FOR A THIRD CAUSE OF ACTION (Attorneys' Fees) 36. Plaintiff repeats all prior statements. 37. Paragraph 7 of the Guaranty provides: All losses, damages and other costs and reasonable expenses of whatsoever nature which Landlord incurs in connection with or incidental to the enforcement of the performance of any of the Guarantor's obligations under this Guaranty shall immediately be payable by Guarantor to Landlord. RE\57406\0538\654056v I -9-9 of 12
38. Plaintiff has incurred (and will continue to incur) legal fees, costs and disbursements in connection with Defendant's failure to comply with the Guaranty. 39. As a result, Plaintiff has been damaged and is entitled to a judgment in an amount to be determined by the Court after a hearing or upon the submission of affidavits, but believed to exceed $15,000. WHEREFORE, Plaintiff demands judgment herein as follows: 1. On its First Cause of Action, awarding money damages in favor of Plaintiff and against Defendant, in an amount not less than $29,507.83, plus interest, costs and attorneys' fees, the full amount of which shall be established at trial; and 2. On its Second Cause of Action, awarding money damages in favor of Plaintiff and against Defendant, in an amount not less than $249,241.68, together with real estate tax escalations, and all associated expenses in connection with Tenant's breach and default of its obligations under the Lease, in an amount to be determined at trial; 3. On its Third Cause of Action, awarding attorneys' fees, costs and disbursements in favor of Plaintiff and against Defendant, in an amount believed to exceed $15,000; and 4. Granting such other and further relief as the Court deems just and proper. RE\57406\0538\654056v 1-10- 10 of 12
Dated: New York, New York RO December 6, 2016 Attu r i B uise A. Barrack 733 Thir Avenue ew Y,New York 10017 (2 867-6000 RE~57406\0538\654056v 1-11- 11 of 12
STATE OF NEW YORK ) ss.: COUNTY OF NEW YORK ) LIMITED LIABILITY COMPANY VERIFICATION Stephen J. Meringoff, being duly sworn, deposes and says: 1. I am the President of Meringoff & Shidler NY Portfolio Corp., which is the managing member of 12 West 21st Street Associates LLC, which is the managing member of Plaintiff; a New York Limited Liability Company. 2. I have read the foregoing complaint and know the contents thereof; and the same is true to my own knowledge, except as to those matters therein stated to be alleged upon information and belief, and as to those matters I believe them to be true. The source of my information and belief is the Plaintiff's books and records. 3. This Verification is made by deponent because Plaintiff is a Limited Liability Company and I am the President for the managir Sworn to before me this day of December, 2016 ~r ~ ~~ ~ ~ ~ NOTARY PUBLIC SUSAP! MC'~{~RI~ Notary Public, State rid IVew York No. of PO 4932995 Qualified in New York County Certificate Filed In New York County Commission Expires August 31, 2017 RE\57406\0538\654056v i -12-12 of 12