FILED: NEW YORK COUNTY CLERK 05/22/2012 INDEX NO. 651762/2012 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/22/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------X Index No. /12 Date Purchased: May 22, 2012 GETTY PROPERTIES CORP. and GETTYMART INC., -against- Plaintiffs, GETTY PETROLEUM MARKETING INC., 1314 SEDG WICK AVE. LLC, 262-12 HILLSIDE AVE. LLC A/KIA 262-12 HILLSIDE AVE LLC, 1224 ROUTE 22 LLC, 310 BAY SHORE ROAD LLC, 751 WHITE PLAINS ROAD LLC, 1245 NEPPERHAM AVE. LLC, 26-27 COLLEGE POINT BOULEVARD #2 LLC, 2 MONTAUK HIGHWAY LLC, 1714 NEW YORK AVE, LLC, 292 RAILROAD AVE., LLC, 600 WHITE PLAINS ROAD LLC, 286 ASHBIJRTON AVE., LLC, 857 RT. 6 MAHOPAC LLC, 49-25 VAN DAM STREET LLC A/K/A 49-25 VANDAM STREET LLC, 31-05 QUEENS BLVD. LLC A/K/A 31-05 QUEENS BLVD LLC, 69 BK STREET LLC A/K/A 69 BK STREET, LLC, 67 QUAKER RIDGE ROAD LLC, ONE PLEASANT VILLE ROAD LLC, 894 ROUTE 109, LLC, 185 EAST LINCOLN AVENUE LLC, ROBERT G. DEL GADIO and FRANK MASCOLO, SUMMONS Plaintiffs designate New York County as the place of trial based based upon the CPLR. Defendants. ----------------------x TO THE ABOVE NAMED DEFENDANT(S): YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance on the plaintiffs attorneys within twenty (20) days after service of this summons, exclusive of the day of service; or within thirty (30) days after completion of service where the service is made in any other manner than by personal delivery within the state; and in case of
your failure to appear or answer, judgment will be taken against you by default, for the relief demanded in the complaint. Dated: New York, New York May 21, 2012 ROSENBERG & ESTIS, P.C. Attorneys for Plaintiffs By Howard W. King< e-y 7Third Avenue New York, New York 10017 (212) 867-6000 -2-
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------X Index No. /12 Date Purchased: May 22, 2012 GETTY PROPERTIES CORP. and GETTYMART INC., -against- Plaintiffs, GETTY PETROLEUM MARKETING INC., 1314 SEDG WICK AVE. LLC, 262-12 HILLSIDE AVE. LLC A/K/A 262-12 HILLSIDE AVE LLC, 1224 ROUTE 22 LLC, 310 BAY SHORE ROAD LLC, 751 WHITE PLAINS ROAD LLC, 1245 NEPPERHAM AVE. LLC, 26-27 COLLEGE POINT BOULEVARD #2 LLC, 2 MONTAUX HIGHWAY LLC, 1714 NEW YORK AVE, LLC, 292 RAILROAD AVE., LLC, 600 WHITE PLAINS ROAD LLC, 286 ASHBIJRTON AVE., LLC, 857 RT. 6 MAHOPAC LLC, 49-25 VAN DAM STREET LLC A/K/A 49-25 VANDAM STREET LLC, 31-05 QUEENS BLVD. LLC A/K/A 31-05 QUEENS BLVD LLC, 69 BK STREET LLC A/K/A 69 BK STREET, LLC, 67 QUAKER RIDGE ROAD LLC, ONE PLEASANT VILLE ROAD LLC, 894 ROUTE 109, LLC, 185 EAST LINCOLN AVENUE LLC, ROBERT G. DEL GADIO and FRANK MASCOLO, VERIFIED COMPLAINT Defendants. ----------------------x Plaintiffs, Getty Properties Corp. and Gettymart Inc., by their attorneys, Rosenberg & Estis, P.C., as and for their Verified Complaint allege as follows: PARTIES Getty Properties Corp. ("GPC") is, and was at all relevant times, a Delaware corporation authorized to do business in the State of New York.
2. Gettymart Inc. ("GM") is, and was at all relevant times, a Delaware corporation authorized to do business in the State of New York. 3. GM is, and was at all relevant times, an affiliate of GPC. 4. Upon information and belief, defendant Getty Petroleum Marketing Inc. ("Tenant" or "Debtor") is, and was at all relevant times, a Maryland corporation authorized to do business in the State of New York. 5. Upon information and belief, defendant 1314 Sedgwick Ave. LLC ("1314") is, and was at all relevant times, a New York limited liability company. 6. Upon information and belief, defendant 262-12 Hillside Ave. LLC a/k/a 262-12 Hillside Ave LLC ("262-12") is, and was at all relevant times, a New York limited liability company. 7. Upon information and belief, defendant 1224 Route 22 LLC ("1224") is, and was at all relevant times, a New York limited liability company. 8. Upon information and belief, defendant 310 Bay Shore Road LLC ("310") is, and was at all relevant times, a New York limited liability company. 9. Upon information and belief, defendant 751 White Plains Road LLC ("751") is, and was at all relevant times, a New York limited liability company. 10. Upon information and belief, defendant 1245 Nepperham Ave. LLC ("1245") is, and was at all relevant times, a New York limited liability company. 11. Upon information and belief, defendant 26-27 College Point Boulevard #2 LLC ("26-27") is, and was at all relevant times, a New York limited liability company. GPC and GM are hereinafter, collectively and/or individually, referred to as "Landlord." -2-
12. Upon information and belief, defendant 2 Montauk Highway LLC ("2 Montauk") is, and was at all relevant times, a New York limited liability company. 13. Upon information and belief, defendant 1714 New York Ave, LLC ("1714") is, and was at all relevant times, a New York limited liability company. 14. Upon information and belief, defendant 292 Railroad Ave., LLC ("292") is, and was at all relevant times, a New York limited liability company. 15. Upon information and belief, defendant 600 White Plains Road LLC ("600") is, and was at all relevant times, a New York limited liability company. 16. Upon information and belief, defendant 286 Ashburton Ave., LLC ("286") is, and was at all relevant times, a New York limited liability company. 17. Upon information and belief, defendant 857 Rt. 6 Mahopac LLC ("857") is, and was at all relevant times, a New York limited liability company. 18. Upon information and belief, defendant 49-25 Van Dam Street LLC alicia 49-25 Vandam Street LLC ("49-25") is, and was at all relevant times, a New York limited liability company. 19. Upon information and belief, defendant 31-05 Queens Blvd. LLC alicia 31-05 Queens Blvd LLC ("31-05") is, and was at all relevant times, a New York limited liability company. 20. Upon information and belief, defendant 69 BK Street LLC alicia 69 BK Street, LLC ("69") is, and was at all relevant times, a New York limited liability company. 21. Upon information and belief, defendant 67 Quaker Ridge Road LLC ("67") is, and was at all relevant times, a New York limited liability company. -3-
22. Upon information and belief, defendant One Pleasantville Road LLC ("One") is, and was at all relevant times, a New York limited liability company. 23. Upon information and belief, defendant 894 Route 109, LLC ("894") is, and was at all relevant times, a New York limited liability company. 24. Upon information and belief, defendant 185 East Lincoln Avenue LLC ("185") is, and was at all relevant times, a New York limited liability company. 2 25. Upon information and belief, defendant Robert G. Del Gadio ("Del Gadio") is, and was at all relevant times, a resident of the County of Nassau, State of New York. 26. Upon information and belief, defendant Frank Mascolo ("Mascolo") is, and was at all relevant times, a resident of the County of Suffolk, State of New York. FACTS A. The Master Lease between Landlord and Tenant 27. By Consolidated, Amended and Restated Master Lease, dated as of November 2, 2000, between Landlord and Tenant, Landlord leased certain properties to Tenant. 3 28. Pursuant to Master Lease 16.3, inter alia, all subleases entered into by Tenant with a subtenant "shall be subject to and subordinate to the terms and conditions of [the Master] Lease," and shall terminate upon the termination of the Master Lease. B. The Subleases Between Tenant and Subtenants 29. Upon information and belief, on or about January 24, 2006, Tenant, as landlord, and 1314, as tenant, entered into a Sublease Agreement by which 1314 subleased from Tenant the premises located at 1314 Sedgwick Avenue, Bronx, New York, which sublease was 2 Defendants 1314, 262-12, 1224, 310, 751, 1245, 26-27,2 Montauk, 1714, 292, 600, 286, 857, 49-25, 31-05, 69, 67, One, 894 and 185 are hereinafter referred to, collectively and/or individually, as "Subtenants." Such lease, as subsequently amended and modified, is hereinafter referred to as the "Master Lease." -4-
amended by First Amendment to Sublease, dated as of February 15, 2006 (such sublease as amended by such amendment or otherwise is referred to hereinafter as the "1314 Sublease"). 4 30. Upon information and belief, on or about November 29, 2005, Tenant, as landlord, and 262-12, as tenant, entered into a Sublease Agreement by which 262-12 subleased from Tenant the premises located at 262-12 Hillside Avenue, Floral Park, New York, which was amended by First Amendment to Sublease, dated as of February 15, 2006 (such sublease as amended by such amendment or otherwise is referred to hereinafter as the "262-12 Sublease"). 5 31. Upon information and belief, on or about January 16, 2006, Tenant, as landlord, and 1224, as tenant, entered into a Sublease Agreement by which 1224 subleased from Tenant the premises located at 1224 Route #22, Brewster, New York, which sublease was amended by First Amendment to Sublease, dated as of February 15, 2006 (such sublease as amended by such amendment or otherwise is referred to hereinafter as the "1224 Sublease"). 6 32. Upon information and belief, on or about January 31, 2006, Tenant, as landlord, and 310, as tenant, entered into a Sublease Agreement by which 310 subleased from Tenant the premises located at 310 Bay Shore Road, North Babylon, New York, which sublease was amended by First Amendment to Sublease, dated as of January 31, 2006 (such sublease as amended by such amendment or otherwise is referred to hereinafter as the "310 Sublease"). 7 33. Upon information and belief, on or about January 19, 2006, Tenant, as landlord, and 751, as tenant, entered into a Sublease Agreement by which 751 subleased from Tenant the premises located at 751 White Plains Road, Scarsdale, New York, which sublease Upon information and belief, such premises is further described in Exhibit A annexed hereto. Upon information and belief, such premises is further described in Exhibit B annexed hereto. 6 Upon information and belief, such premises is further described in Exhibit C annexed hereto. Upon information and belief, such premises is further described in Exhibit D annexed hereto. -5-
was amended by First Amendment to Sublease, dated as of February 15, 2006 (such sublease as amended by such amendment or otherwise is referred to hereinafter as the "751 Sublease"). 8 34. Upon information and belief, on or about November 21, 2005, Tenant, as landlord, and 1245, as tenant, entered into a Sublease Agreement by which 1245 subleased from Tenant the premises located at 1245 Nepperhan Avenue, Yonkers, New York, which sublease was amended by First Amendment to Sublease, dated as of February 15, 2006 (such sublease as amended by such amendment or otherwise is referred to hereinafter as the "1245 Sublease"). 9 35. Upon information and belief, on or about November 17, 2005, Tenant, as landlord, and 26-27, as tenant, entered into a Sublease Agreement by which 26-27 subleased from Tenant the premises located at 26-27 College Point Boulevard, Flushing, New York, which was amended by First Amendment to Sublease, dated as of February 15, 2006 (such sublease as amended by such amendment or otherwise is referred to hereinafter as the "26-27 Sublease"). 36. Upon information and belief, on or about December 1, 2005, Tenant, as landlord, and 2 Montauk, as tenant, entered into a Sublease Agreement by which 2 Montauk subleased from Tenant the premises located at 2 Montauk Highway, East Hampton, New York, which was amended by First Amendment to Sublease, dated as of February 15, 2006 (such sublease as amended by such amendment or otherwise is referred to hereinafter as the "2 Montauk Sublease")." 37. Upon information and belief, on or about April 1, 2003, Tenant, as landlord, and 1714, as tenant, entered into a Lease Agreement by which 1714 subleased from 8 Upon information and belief, such premises is further described in Exhibit E annexed hereto Upon information and belief, such premises is further described in Exhibit F annexed hereto 10 Upon information and belief, such premises is further described in Exhibit G annexed hereto. " Upon information and belief, such premises is further described in Exhibit H annexed hereto. -6-
Tenant the premises located at 1714 New York Avenue, Huntington Station, New York (such Lease Agreement if and as amended is referred to hereinafter as the "1714 Sublease"). 12 38. Upon information and belief, on or about May 1, 2003, Tenant, as landlord, and 292, as tenant, entered into a Lease Agreement by which 292 subleased from Tenant the premises located at 292 Railroad Avenue, Sayville, New York, which was amended by Amendment Agreement, dated as of June 26, 2003 (such Lease Agreement as amended by such amendment or otherwise is referred to hereinafter as the "292 Sublease"). 13 39. Upon information and belief, on or about August 15, 2005, Tenant, as landlord, and 600, as tenant, entered into a Lease Agreement by which 600 subleased from Tenant the premises located at 600 White Plains Road, Eastchester, New York (such Lease Agreement if and as amended is referred to hereinafter as the "600 Sublease"). 14 40. Upon information and belief, on or about April 1, 2003, Tenant, as landlord, and 286, as tenant, entered into a Lease Agreement by which 286 subleased from Tenant the premises located at 286 Ashburton Avenue, Yonkers, New York, which Lease Agreement was amended by Amendment Agreement, dated as of "June, 2003" (such Lease Agreement as amended by such amendment or otherwise is referred to hereinafter as the "286 Sublease"). 15 41. Upon information and belief, on or about July 11, 2005, Tenant, as landlord, and 857, as tenant, entered into a Lease Agreement by which 857 subleased from 12 Upon information and belief, such premises is further described in Exhibit I annexed hereto. 13 Upon information and belief, such premises is further described in Exhibit J annexed hereto. Upon information and belief, such premises is further described in Exhibit K annexed hereto. 15 Upon information and belief, such premises is further described in Exhibit L annexed hereto. -7-
Tenant the premises located at Route #6, Mahopac, New York (such Lease Agreement if and as amended is referred to hereinafter as the "857 Sublease"). 16 42. Upon information and belief, on or about May 16, 2005, Tenant, as landlord, and 49-25, as tenant, entered into a Lease Agreement by which 49-25 subleased from Tenant the premises located at 49-25 Van Dam Street, Long Island City, New York (such Lease Agreement if and as amended is referred to hereinafter as the "49-25 Sublease"). 17 43. Upon information and belief, on or about May 16, 2005, Tenant, as landlord, and 31-05, as tenant, entered into a Lease Agreement by which 31-05 subleased from Tenant the premises located at 31-05 Queens Boulevard, Long Island City, New York (such Lease Agreement if and as amended is referred to hereinafter as the "31-05 Sublease"). 18 44. Upon information and belief, on or about August 8, 2005, Tenant, as landlord, and 69, as tenant, entered into a Lease Agreement by which 69 subleased from Tenant the premises located at 69 Bank Street, White Plains, New York (such Lease Agreement if and as amended is referred to hereinafter as the "69 Sublease"). 19 45. Upon information and belief, on or about July 11, 2005, Tenant, as landlord, and 67, as tenant, entered into a Lease Agreement by which 67 subleased from Tenant the premises located at 67 Quaker Ridge Road, New Rochelle, New York, which Lease Agreement was amended by Amendment to Lease Agreement (such Lease Agreement as amended by such amendment or otherwise is referred to hereinafter as the "67 Sublease"). 20 16 Upon information and belief, such premises is further described in Exhibit M annexed hereto. 17 Upon information and belief, such premises is further described in Exhibit N annexed hereto. 18 Upon information and belief, such premises is further described in Exhibit 0 annexed hereto. 19 Upon information and belief, such premises is further described in Exhibit P annexed hereto. 20 Upon information and belief, such premises is further described in Exhibit Q annexed hereto. -8-
46. Upon information and belief, on or about June 10, 2004, Tenant, as landlord, and One, as tenant, entered into a Lease Agreement by which One subleased from Tenant the premises located at 1 Pleasantville Road, Pleasantville, New York (such Lease Agreement if and as amended is referred to hereinafter as the "One Sublease"). 21 47. Upon information and belief, Tenant, as landlord, and 894, as tenant, entered into a Lease Agreement by which 894 subleased from Tenant the premises located at 894 Route 109, North Lindenhurst, New York (such sublease if and as amended is referred to hereinafter as the "894 Sublease"). 48. Upon information and belief, Tenant, as landlord, and 185, as tenant, entered into a Lease Agreement by which 185 subleased from Tenant the premises located at 185 East Lincoln Avenue, Pelham, New York (such sublease if and as amended is referred to hereinafter as the "185 Sublease"). 22 49. Upon information and belief, each Sublease provides, inter a/ia, that: a. it is "subject and subordinate to the Master Lease;" and b. if the Subtenant thereunder breaches the Sublease, that the Subtenant shall "indemnify and hold harmless...getty Properties Corp., Getty Realty Corp., and each of their parent and subsidiary companies and affiliates...from and against any and all losses, claims, demands, suits, actions, judgments, fines, costs, expenses or payments, environmental or otherwise, for, or in connection with this Sublease... and from and against all costs, expenses and liabilities incurred whether or not in connection with any such claim or proceeding brought in connection therewith." 21 Upon information and belief; such premises is further described in Exhibit R annexed hereto. 22 The 1314 Sublease, the 262-12 Sublease, the 1224 Sublease, the 310 Sublease, the 751 Sublease, the 1245 Sublease, the 26-27 Sublease, the 2 Montauk Sublease, the 1714 Sublease, the 292 Sublease, the 600 Sublease, the 286 Sublease, the 857 Sublease, the 49-25 Sublease, the 3 1-05 Sublease, the 69 Sublease, the 67 Sublease, the One Sublease, the 894 Sublease and the 185 Sublease are referred to hereinafter, collectively, and or individually, as the "Subleases." Each of the properties subleased by Subtenants pursuant to the terms of the Subleases referred to hereinafter, collectively and/or individually, as the "Properties." -9-
50. Upon information and belief, many of the Subleases also provide, inter alia, that "[i]n the event that the Master Lease terminates for any reason except due to sole default by [Landlord] under the Master Lease, this [Sublease] shall terminate with immediate effect." C. Personal Guarantees of Del Gadio and Mascolo 51. Upon information and belief, by separate written Guarantees to Lease Agreement (the "DG Guarantees"), each signed on or about the date of each of the respective Subleases, Del Gadio, inter alia, guaranteed the payment of all sums due under the Subleases, except for the 1714 Sublease, the 292 Sublease and the 286 Sublease. 52. Upon information and belief, by separate written Guarantees to Lease Agreement (the "Mascolo Guarantees"), each signed on or about the date of each of the respective Subleases, Mascolo, inter alia, guaranteed the payment of all sums due under the 1714 Sublease, the 292 Sublease and the 286 Sublease. D. Tenant s Chapter 11 53. On or about December 5, 2011, Tenant filed for chapter 11 bankruptcy protection in the Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court") (case no. 11-15606-ssc) (the "Chapter 11"). Termination of the Master Lease and the Subleases 54. In the Chapter 11, on April 2, 2012, the Bankruptcy Court entered a Stipulation and Order Deferring Rents Owing to Getty Properties, Establishing Procedures for the Administration of the Chapter 11 Cases, Extending the Time for the Debtors to Assume or Reject the Master Lease and Other Matters (the "Rejection Order"). 55. Paragraph 4(c) of the Rejection Order states, inter alia, that: RE\32020\0002\47643v1-10 -
"upon the effective date of any rejection of the Master Lease, the Master Lease shall be deemed terminated and the Debtors shall immediately and without further action or proceeding or order of this Court relinquish possession and deliver the Premises to Getty Properties or as Getty Properties shall direct, in the condition required by the Master Lease... free and clear of all other tenancies and occupancies (which shall be deemed terminated)... If the Debtors fail to so relinquish possession and deliver the Premises to Getty Properties, and in addition to any and all other rights and remedies available to Getty Properties under the Master Lease...the Debtors agree that Getty Properties shall have all of the following rights and remedies: (i) to evict the Debtors... and (ii) in state or other court, to: (A) obtain and/or enter an immediate judgment of possession, order of ejectment or similar order or judgment (collectively, Ejectment Order ) in favor of Getty Properties against the Debtors and any and all other persons or entities occupying the Premises by summary proceeding, other proceeding or any type of legal action or proceeding (collectively, Legal Proceeding ) by which Getty Properties is entitled to the immediate possession of the Premises; and (B) obtain a warrant of eviction, other decree, order, judgment, or otherwise directing a marshal, sheriff, law enforcement agency or otherwise to enter upon the Premises and to evict and remove the Debtors and any and all other persons or entities occupying the Premises (collectively, Warrant ), which Warrant shall not be stayed and shall be executed forthwith."" 56. Paragraph 4(d) of the Rejection Order states, inter alia, that: "if any unrelated third-party subtenants or occupants of the Premises shall not relinquish and vacate the Premises occupied by them on or before [the Effective Date], notwithstanding the demand of the Debtors upon them, without prejudice to the right of Getty Properties to assert a claim for all such Eviction Expenses (as hereinafter defined), the 23 The plaintiffs herein were defined as "Getty Properties" in the Rejection Order. -11-
(the "Termination Date") Debtors shall have no obligation to seek relief or any other remedy and shall not be required to incur any additional cost or expense to evict any such unrelated third-party subtenants and occupants." 57. The effective date of the rejection of the Master Lease was April 30, 2012 58. The Master Lease terminated, effective on the Termination Date. 59. The Subleases terminated, effective on the Termination Date. 60. Tenant failed, inter alia, to relinquish the Properties free and clear of all other tenancies and occupancies on or before the Termination Date. 61. Upon information and belief, by letter dated May 4, 2012, Tenant s counsel demanded the Subtenants to vacate each of the respective Properties that they subleased from Tenant and advised them that their failure to vacate the Properties "is preventing the Debtors from complying with the terms of the [Rejection] Order." 62. On May 18, 2012, the Bankruptcy Court entered an Order Rejecting Certain Subleases, which states, inter alia, that the Subleases were "deemed rejected, nunc pro tunc, to April 30, 2012, immediately following the rejection of the Master Lease." 63. Upon information and belief, each Subtenant thereafter failed to vacate the Property that it subleased from Tenant. forth at length herein. FIRST CAUSE OF ACTION (Ejectment) 64. Landlord repeats and realleges paragraphs 1 through 63 above as if set 65. Plaintiffs are net lessees and landlords of each of the Properties. 66. The Master Lease has been terminated. 67. Tenant does not have any right to occupy the Properties. RE\32020\0002\476438y1-12 -
68. The Subleases have been terminated. 69. Each subtenant has no right to occupy the Property that it subleased from Tenant. Landlord s permission. 70. Tenant and Subtenants remain in possession of the Properties without 71. Plaintiffs are entitled to the immediate and actual possession of each of the Properties pursuant to Article 6 of the New York State Real Property Actions and Proceeding Law. 72. By reason of the foregoing, plaintiffs are entitled to: a. a judgment declaring that plaintiffs are entitled to immediate possession of each of the Properties; b. a judgment directing the Sheriff or Marshal of the respective Counties in which the Properties are located to eject Tenant and Subtenants therefrom; and C. the issuance of a Warrant of Eviction for each Property removing Tenant and the Subtenant therefrom, and putting plaintiffs into immediate possession of the respective Properties. SECOND CAUSE OF ACTION (Use and Occupancy Against Subtenants) 73. Landlord repeats and realleges paragraphs 1 through 63 and 65 through 70 above as if set forth at length herein. Termination Date. 74. Tenant has held over in possession of each of the Properties after the 75. Each Subtenant has held over in possession of the Property that it subleased from Tenant after the Termination Date. RE\32020\0002\476438y1-13 -
76. Each Subtenant is liable for the fair market rental value for its use and occupancy of the Property that it had subleased from Tenant from May 1, 2012 through and including the date that it vacates its respective Property. 77. By reason of the foregoing, plaintiffs are entitled to a money judgment against each Subtenant in an amount to be determined by the Court, plus interest. THIRD CAUSE OF ACTION (Indemnification against Subtenants) 78. Landlord repeats and realleges paragraphs 1 through 63, 65 through 70 and 74 and 75 above as if set forth at length herein. 79. Upon information and belief, pursuant to paragraph 23 of each of the Subleases, each Subtenant is required to indemnify plaintiffs for all, inter alia, losses, costs, expenses, etc., including, without limitation, attorneys fees, that plaintiffs have incurred and will incur in connection with each Subtenants breach of its respective Sublease. 80. Upon information and belief, each Subtenant has breached its respective Sublease by holding over in the Property that it subleased from Tenant after the respective Sublease was terminated. 81. By reason of the foregoing, plaintiffs are entitled to a money judgment against each Subtenant in an amount to be determined by the Court, plus interest. FOURTH CAUSE OF ACTION (Breach of Del Gadio s Personal Guaranty) 82. Landlord repeats and realleges paragraphs 1 through 63, 65 through 70 and 74, 75, 79 and 80 above as if set forth at length herein. 83. Upon information and belief, pursuant to paragraph 23 of each of the Subleases, each Subtenant is required to indemnify plaintiffs for all, inter alia, losses, costs, - 14 -
expenses, etc., including, without limitation, attorneys fees, that plaintiffs have incurred and will incur in connection with each Subtenants breach of its respective Sublease. 84. Upon information and belief, pursuant to the terms of the DG Guarantees, Del Gadio guaranteed to pay all sums due under each of the respective Subleases, except for the 1714 Sublease, the 292 Sublease and the 286 Sublease, including, without limitation, the sums due under paragraph 23 of each of the Subleases. respective Subtenant. 85. Upon information and belief, each of the Subleases was breached by the 86. Upon information and belief, as a result, Del Gadio is liable for all damages sustained by plaintiffs as a result of the respective Subtenant s breach of each of its respective Sublease, except for the 1714 Sublease, the 292 Sublease and the 286 Sublease. 87. By reason of the foregoing, plaintiffs are entitled to a money judgment against Del Gadio in an amount to be determined by the Court, plus interest. FIFTH CAUSE OF ACTION (Breach of Mascolo s Personal Guaranty) 88. Landlord repeats and realleges paragraphs 1 through 63, 65 through 70 and 74, 75, 79 and 80 above as if set forth at length herein. 89. Upon information and belief, pursuant to paragraph 23 of each of the Subleases, each Subtenant is required to indemnify plaintiffs for all, inter alia, losses, costs, expenses, etc., including, without limitation, attorneys fees, that plaintiffs have incurred and will incur in connection with each Subtenants breach of its respective Sublease. 90. Upon information and belief, pursuant to the terms of the Mascolo Guarantees, Mascolo guaranteed the payment of all sums due under the 1714 Sublease, the 292 RF\32020\0002\476438v1-15 -
Sublease and the 286 Sublease, including, without limitation, the sums due under paragraph 23 of each of the Subleases. 91. Upon information and belief, pursuant, the 1714 Sublease, the 292 Sublease and the 286 Sublease were breached by the respective Subtenant. 92. Upon information and belief, as a result, Mascolo is liable for all damages sustained by plaintiffs as a result of the respective Subtenant s breach of the 1714 Sublease, the 292 Sublease and the 286 Sublease. 93. By reason of the foregoing, plaintiffs are entitled to a money judgment against Mascolo in an amount to be determined by the Court, plus interest. WHEREFORE, plaintiffs demand judgment as follows: A. On the first cause of action: i. a judgment declaring that plaintiffs are entitled to immediate possession of each of the Properties; ii. iii. a judgment directing the Sheriff or Marshal of the respective Counties in which the Properties are located to eject Tenant and Subtenants therefrom; and the issuance of a Warrant of Eviction for each Property removing Tenant and the Subtenant therefrom and putting plaintiffs into immediate possession of the respective Property; B. On the second cause of action, a money judgment against Subtenants in an amount to be determined by the Court, plus interest; C. On the third cause of action, a money judgment against each Subtenant in an amount to be determined by the Court, plus interest; D. On the fourth cause of action, a money judgment against Del Gadio in an amount to be determined by the Court, plus interest; E. On the fifth cause of action, a money judgment against Mascolo in an amount to be determined by the Court, plus interest; and - 16 -
F. For such other and further relief that the Court deems just and proper. Dated: New York, New York May 21, 2012 ROSENBERG & ESTIS, P.C. Attorneys for Plaintiffs I ll, ardw.ki 7venue AThird New York, New York 10017 (212) 867-6000 "?*~ - 17 -
STATE OF NEW YORK ) ) ss.: COUNTY OF NASSAU ) Properties Corp. VERIFICATION JOSHUA DICKER, being duly sworn, deposes and says: I am the Senior Vice President and General Counsel of plaintiff Getty 2. I have read the annexed Complaint and know the contents thereof, and the same is true to my own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters, I believe them to be true. Sworn to before me this 21st day of May, 2012 (A"k Notary Public Joshua -bicker CHRISTINE FITTER Notary Public, State of New York N0.4948579 Qualified in Suffolk County Certified in Nassau County Commission Expires March 20, 20