FILED: WESTCHESTER COUNTY CLERK 10/31/ :05 PM INDEX NO /2017 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/31/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER x HH MARINA DEVELOPMENT LLC, Index No /2017 Plaintiff, AFFIRMATION IN SUPPORT OF CROSS MOTION FOR PRELIMINARY INJUNCTION AND IN - against - OPPOSITION TO DEFENDANT BOAT TARRYTOWN BOAT CLUB, INC., ROBERT HARRIS, CLUB S MOTION FOR CHRISTOPHER SURACE, LIAM O KEEFE and PRELIMINARY INJUNCTION TARRYTOWN HOSPITALITY GROUP, LLC, Defendants x THOMAS B. DECEA affirms the following under penalty of perjury: 1. I am a member of the law firm of Fishman Decea & Feldman, attorneys for plaintiff HH Marina Development LLC ( Plaintiff ). I make this affirmation in reply to the opposition of defendant Tarrytown Boat Club, Inc. ( Boat Club or Defendant ) to Plaintiff s motion for a preliminary injunction and in further support of Plaintiff s cross-motion for a preliminary injunction. 2. Defendant s motion cannot, as a matter of law, be granted because it simply cannot show irreparable harm; there is none. Assuming for arguments sake Boat Club has or will suffer any damages, which Plaintiff does not concede, not only do money damages make Boat Club whole, but the alleged damage of which it complains was contemplated by and among defendants in anticipation of this lawsuit. 3. The License Agreement among the defendants anticipates a number of possible issues, such as the failure to obtain a liquor license. Provision is made in the License Agreement as to what happens in the event the liquor license is not granted; the licensee is required to 1 1 of 6

2 continue to operate the concession stand. If the failure to obtain the liquor license was determined by the parties to constitute irreparable harm, the license could have stated that such an event would cause the license to be terminated. However, by providing for the eventuality that the liquor license might not be obtained, the parties cannot now claim that such failure constitutes irreparable harm. In effect, they bargained that away. 4. The contract at issue in this case is the license agreement by and among defendants (the License Agreement ). The only defendant which seeks a preliminary injunction as a result of this lawsuit is Boat Club. Boat Club is paid by defendant Tarrytown Hospitality Group, LLC ( Hospitality ) $100 per month under the License Agreement; therefore the maximum amount of its damages under the License Agreement is $100 monthly. The only other damage it alleges is that the concession stand cannot serve alcohol without a liquor license but that argument is unavailing as set forth above. 5. Boat Club asserts that Hospitality may not get a liquor license because of this lawsuit but admits that its application is pending but not yet adjudicated. We have no way of knowing the status of the application. Nonetheless, the License Agreement contemplates a denial of a liquor license and requires Hospitality to continue operating its concession stand. Boat Club has incurred no damages, let alone irreparable damages. 6. Conversely, absent the preliminary injunction sought by Plaintiff herein, Plaintiff s plan for the property will be harmed by the branding by defendants of the subject premises (the Demised Premises ) as a concession stand. The concession stand will impede Plaintiff s plans for its upscale restaurant at the Premises. 2 2 of 6

3 7. Boat Club alleges that the affidavit of Daniel Pennessi, Esq., Plaintiff s general counsel and the general counsel of all of Plaintiff s affiliated entities 1 (which comprise the owners of the neighboring $200,000,000 development project) is insufficient to establish that the Plaintiff s development project will be harmed by the operation of the concession stand (Hurvich Affidavit dated October 27, 2017, 3 Hurvich Aff. ). In point of fact, attorney Pennessi has overseen the entire development project and there is no person more intimately familiar with the facts put forth on this record or qualified to swear to them. To say that he lacks personal knowledge of the relevant history (Hurvich Aff. 2) of the facts alleged is abjectly false. 8. While Boat Club argues that attorney Pennessi lacks personal knowledge of the relevant history, it simultaneously has not produced a single piece of evidence that the State Liquor Authority ( SLA ) will not grant a license absent the preliminary injunction sought by Boat Club. The affidavit submitted by attorney Aldo Vitigliano is hearsay, inherently unreliable and has no probative value on this issue. Conspicuously, there is no such mandate from the SLA attached to the Vitigliano affidavit or otherwise. However, as aforesaid, even if there were evidence of such harm, it was anticipated in the License Agreement and certainly does not constitute irreparable harm which might warrant provisional relief. The SLA should be allowed to do its job in determining what liquor licenses it issues and to whom, based upon the facts extant at the time of the review of the application. 9. In an apparent attempt to divert the Court s attention from the lack of irreparable harm,, Boat Club turns its attention to the underlying merits Hurvich Aff. ( 6-13). Without irreparable harm, which has not and cannot be demonstrated in this case, the likelihood of success on the merits is irrelevant because, in order to obtain a preliminary injunction, a party needs to demonstrate irreparable harm, likelihood of success on the merits, and balancing of the 1 All of the affiliated entities involved with the development project have the same majority ownership. 3 3 of 6

4 equites. Once it is determined that there is no irreparable harm, the analysis stops and the motion must be denied. 10. Nevertheless, Boat Club s version of the facts, which it asserts supports the merits of its defenses and counterclaims, is totally disputed. 2 The fact of the matter is that the Boat Club never served the required thirty day notice to quit which is a predicate to default. Conspicuously, the record is devoid of any thirty day notice to cure let alone a default notice or termination notice. In order to hold Plaintiff in default of the Lease, Boat Club was required to provide to Plaintiff a thirty day notice to cure as required under Article 18 of the Lease. Without a notice to cure and notice of termination, there is no default and the Lease is in full force and effect. 11. Nor has Boat Club made any attempt to evict Plaintiff, presumably because it knows that without the predicates of a notice to cure and termination, there is no default and there can be no eviction. Undeterred, and in its zest immediately to obtain a liquor license, Boat Club resorted to self-help and just took possession of the subject premises. To do otherwise would have prevented the Boat Club from taking advantage of the summer season of Had the Boat Club pursued the proper procedure to attempt to terminate the Plaintiff s lease, the resulting dispute would have tied up the premises for the summer season. 12. With respect to the Lease, it was duly extended prior to the October 15, 2015, Approval Deadline; during the extension period Lease payments of $10,000 monthly were paid. On or about July 20, 2015, the Village of Tarrytown passed a moratorium on all development including the consideration of Plaintiff s then pending approval application under the Lease. The moratorium local law provided that No applications for construction affected by this Local Law or for approvals for site plan, subdivision, variance or special permit shall be considered by any 2 Boat Club makes several references to undisputed facts in the Hurvich Aff. and in its brief. However, other than the Lease, all of the facts asserted by Boat Club are disputed. 4 4 of 6

5 board or agency of the Village while this Local Law is in effect. In spite of the moratorium, which effectively tolled the Approval Date, Plaintiff continued to pay $10,000 under the Lease. The moratorium not only tolled the Approval Deadline, but suspended the monthly payments, so the $10,000 monthly rent payments made during the moratorium were to be applied to Lease payments due after the moratorium was lifted. All in all Plaintiff paid $180,000 under the Lease and clearly it has no intention of abandoning it. 13. The Lease was never terminated and Boat Club has produced no termination notice or thirty day notice to quit required under the Lease because no such notice was ever given. For these reasons, Boat Club is very unlikely to be able to successfully defend this action. 14. Boat Club next attempts to explain away the fact that the very harm it would have this Court consider as irreparable was self-inflicted, negotiated and memorialized by the License Agreement. Boat Club half-heartedly argues (because it is contradicted by its own documents) that the License Agreement mandates that Hospitality obtain a liquor license which was material to success of the concession (Hurvich Aff. 18). As noted above, this argument is contradicted by the terms of the License Agreement which requires Hospitality to operate the concession with or without a liquor license (License Agreement, 4). In any event, the success of the concession has nothing to do with Boat Club and only impacts Hospitality, which has made no motion. Boat Club cannot claim that harm to Hospitality may be a basis for its motion for a preliminary injunction. As previously stated, and tellingly, only Boat Club has made a motion for a preliminary injunction; Hospitality has not because it knows such a motion would be frivolous. 15. Boat Club has failed to prove its entitlement to a preliminary injunction and its motion must be denied. If the motion is granted, the damages to Plaintiff in connection with its 5 5 of 6

6 $200,000,000 redevelopment project mandates a bond in the sum of at least 10% of the project cost or $20,000, In fact, it is Plaintiff who will be irreparably harmed by reason of the conduct of defendants. Plaintiff s motion, and not Boat Club s, should be granted. Dated: Armonk, New York October 31, 2017 /s/ Thomas B. Decea THOMAS B. DECEA 6 6 of 6