FILED: ONONDAGA COUNTY CLERK 01/22/ :43 PM

Transcription

1 STATE OF NEW YOPJC SUPREME COURT COUNTY OF ONONDAGA INTEGRATED CONSTRUCTION & POWER SYSTEMS, INC. Plaintiff AFFIDAVIT OF VIRAJ PATEL V. Index No. 2016EF4718 RADHA KRISHNA CORP., Defendant STATE OF NEW YORK) COUNTY OF ONONDAGA) VIRAJ PATEL, being duly sworn deposes and says: 1) I am the Vice President of Radha Krishna Corporation, a New York Corporation, who is the Defendant in this matter and as such am familiar with the facts of this Case. 2) I have a Masters in Hospitality Management from Cornell University Hotel School, and a Masters in Business Administration from Cornell University's Johnson School of Management. 3) In 2014, Plaintiff and Defendant had several meetings, which I attended regarding a plan to renovate and convert its Econo Lodge to a Quality Inn. ("the Project") Throughout, there has always been an emphasis on completion before summer of In fact, in one meeting, Plaintiff presented us with a detailed completion schedule with an expected completion date of May 13, (Exhibit "A") Everyone in the hotel industry in 1 of 5

2 Syracuse knows that renovations are performed in the winter so that your hotel is open for summer, the busiest time of the year. 4) Plaintiff indicated in these meetings that he would need to start in January 2015, in order to have a May 2015 completion date. We privately funded the initial renovations in order to meet Plaintiff's request so that he could start in January I spoke with our lender in December 2014 and received a verbal approval to ensure the Project would not be delayed on our end. We continued to finance the Project until the loan was provided. 5) On April 15, 2015, Plaintiff ed an AIA contract to Defendant. Plaintiff incorrectly states in his affidavit that this was provided in January. On that same day, there is an written by Plaintiff to AIA Contract Documents asking how his draft could be made into final form. 6) This contract was not negotiated and was not signed by either party. As Plaintiff stated in his affidavit, this did not have a completion date. We did not sign this document as it was sent in the middle of the Project, and would allow him to complete whenever he was able to, instead of the agreed upon completion date. 7) Plaintiff failed to provide the proper manpower necessary for a May 2015 completion. Plaintiff's claim that he was held up by other tradesmen is incorrect. In the beginning of the Project, we had another do the demolition in Phase one. Plaintiff complained that this company was taking too long, so we hired him for the demolition of Phase Two and Three. If Plaintiff was held up at all, it was by his own employees. 8) In May of 2015, Plaintiff was aware that he was behind on the Project and orally offered Defendant $20, in liquidated damages for his delay. On May 19, 2015, Plaintiff's President Michael Pascarella later ed his understandings of the agrccracñt to Defendant's President Naresh Patel. 2 of 5

3 9) Throughout the Project, Plaintiff had promised expeditious work. Plaintiff understood that delay could cause financial hardship to Defendant. This was communicated to Plaintiff in person, through the telephone and also through . 10) When he failed to complete by May as he promised we urged him to provide us with date certain. On July 7*, Naresh Patel wrote Michael Pascarella to confirm their previous discussions. 11)In July 13th he promised the completion of the third floor by August 14*' and was unable to meet that date. He promised an overall completion date of August 24*, and was unable to meet that date. 12) On June 23, 2016, Defendant wrote Plaintiff in response to a request for payment regarding unfinished punch list items. Defendant gives examples of these punch list items. On July 1, 2016, Plaintiff responds that he is planning on completing the remainder of the punch list items. Here,-he acknowledges that there is in fact a punch list. 13) My attorney transmitted a final written punch list to Pl aintiff, which reflected what was previously discussed. 14) The $414, is an amount certain, generated by widely used and accepted property management software, Choice Advantage used by Choice Hotels franchisees throughout the country. 15) Choice Advantage has a number of features such as making, updating, cancellation of reservations, guest relations, processing payment, daily, and monthly and yearly revenue reports. Choice Advantage is the preferred management software for Choice Hotels, which has over 6,000 hotels including Comfort Inn, and Quality Inn. 16) The hotel industry bases its projections in large part on historical performance. In areas like Syracuse where there is not much fluctuation in land value this tool is particularly 3 of 5

4 useful because hotels commonly trade at a multiple of their revenue. The Smith Travel Research Report drafted by the leading hotel research firm for the Syracuse market shows that for the period in question, from May to November, the revenue per available room between saw about a 4 percent increase over a five-year period. 17) The calculation of lost revenue is concrete. It is based on the difference between revenue generated between May 14, 2015 through November 20, 2015 and that generated May 14, 2016 through November 20, ) The Redacted Tax Returns for the years in question also support this claim for damages. Attached hereto is a copy of these. (Exhibit "B") 19) The hotel business is a high fixed cost, low variable cost business model. Some of the major fixed costs that don't change, based on occupancy, is the mortgage, cost for front desk personnel, property taxes, insurance, administrative and professional fees. 20) The information I provided to our attorney was the basis for determining the damages, and the difficulty the Plaintiff's attorney may have is in interpreting the numbers. 4 of 5

5 WHEREFORE, deponent respectfully requests that this Court deny Plaintiff's Motion for Summary Judgmêñ with respect to each and every counterclaim and for such other and further relief the Court deems just and proper. DATED: JANUARY 4, 2019 Viraj Sworn to before me on this 4* day of January 2019 Notary ublic EÜZÃBETN N01 Notary Public, State offnew York Registration #02H Qualified In Onondaga Cou t LCommission Expires March i3, 20 5 of 5