FILED: KINGS COUNTY CLERK 01/13/ :11 AM INDEX NO /2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/17/2017

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1 FILED: KINGS COUNTY CLERK 01/13/ :11 AM INDEX NO /2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/17/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS x FPG CH 112 PACIFIC LLC and FPG CH 349 HENRY : LLC, : Petitioners, : -against- 116 PACIFIC STREET LLC, ELLEN KNOX ROSTON, individually, UNIFIED CREDIT TRUST, ELLEN KNOX ROSTON, as Trustee of the Unified Credit Trust, CHARLOTTE REA, as Trustee of the Unified Credit Trust, and TREZZA MANAGEMENT INC., : : : Index No. VERIFIED PETITION Respondents x Petitioners, FPG CH 112 PACIFIC LLC and FPG CH 349 HENRY LLC, by their attorneys, Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, as and for the Verified Petition, pursuant to Real Property Actions and Proceedings Law 881, respectfully submit, upon knowledge as to themselves and their own actions, and upon information and belief as to all other matters, as follows: NATURE OF THIS PROCEEDING 1. Petitioners bring this proceeding, pursuant to the provisions of Section 881 of the Real Property Actions and Proceedings Law ( RPAPL ), for an order granting Petitioners FPG CH 112 PACIFIC LLC and FPG CH 349 HENRY LLC, and their agents, subsidiaries, assigns and representatives, a license to enter upon and access the real property owned by Respondent 116 PACIFIC STREET LLC known as 116 Pacific Street, Brooklyn, New York (Block 291, Lot 10) and the real property owned by Respondents ELLEN KNOX ROSTON, UNIFIED CREDIT 1 of 13

2 TRUST, and CHARLOTTE REA known as 129 Amity Street, Brooklyn, New York (Block 291, Lot 46) for the purpose of: (a) conducting necessary surveys and inspections of existing conditions at these properties; (b) installing monitoring equipment; and (c) erecting and maintaining all scaffolding, bridging, shedding, netting, roof protection and other protections required by the New York City Department of Buildings and/or any other City and/or State agencies having jurisdiction, in connection with the demolition of the adjoining properties located at 112 Pacific Street, Brooklyn, New York (Block 291, Lot 8) and 349 Henry Street, Brooklyn, New York (Block 291, Lot 1). 2. This Verified Petition also seeks an order directing Respondents to cooperate with Petitioners by signing and submitting applications and other necessary documentation to the NYC Department of Buildings required for the purpose of securing permits. JURISDICTION AND VENUE 3. This Court has jurisdiction pursuant to RPAPL 881 and venue in Kings County is proper based on the location of the subject properties. PARTIES 4. Petitioner FPG CH 112 Pacific, LLC ("Petitioner Pacific") is a limited liability company, organized and existing under the laws of the State of Delaware. Petitioner Pacific is registered to do business as a foreign limited liability company in the State of New York. 5. Petitioner Pacific is the owner in fee title of the real property known as 112 Pacific Street, Brooklyn, New York (Block 291, Lot 8) ("112 Pacific Street"). (A copy of the Deed to 112 Pacific Street is attached hereto as Exhibit A ). 2 of 13

3 6. FPG CH 349 Henry, LLC ( Petitioner Henry") is a limited liability company, organized and existing under the laws of the State of Delaware. Petitioner Henry is registered to do business as a foreign limited liability company in the State of New York. 7. Petitioner Henry is the owner in fee title of the real property known as 349 Henry Street, Brooklyn New York (Block 291, Lot 1) ("349 Henry Street"). (A copy of the Deed to 349 Henry Street is attached hereto as Exhibit B ). 8. Upon information and belief, Respondent 116 Pacific Street LLC ( Respondent Pacific ) is a limited liability company organized and existing under the laws of the State of New York with its principal place of business at 244 Pacific Street, Brooklyn, New York Respondent Pacific is the owner in fee title of the real property known as 116 Pacific Street, Brooklyn, New York (Block 291, Lot 10) ( 116 Pacific Street ). (A copy of the Deed to 116 Pacific Street is attached hereto as Exhibit C ). 10. Upon information and belief, Respondent Ellen Knox Roston is an individual residing in the County of Escambia, State of Florida. 11. Upon information and belief, Respondent Charlotte Rea is an individual residing in the County of New Haven, State of Connecticut 12. Upon information and belief, Respondent United Credit Trust ( the Trust ) is a testamentary trust created under Article 4 of the will of Ronald E. Roston, dated July 19, Respondent Ellen Knox Roston and Respondent Charlotte Rea are Trustees of the Trust. 13. Respondent Ellen Knox Roston, as an individual, and Respondents Ellen Knox Roston and Charlotte Rea, as Trustees of the Trust, (collectively, Respondent Amity ) are the owners in fee title of the real property known as 129 Amity Street, Brooklyn, New York, (Block 3 of 13

4 291, Lot 46) ( 129 Amity Street ). (A copy of the Deed to 129 Amity Street is attached hereto as Exhibit D ). 14. Upon information and belief, Respondent Trezza Management, Inc. ( Trezza ) is a corporation organized and existing under the laws of the State of New York. 15. Upon information and belief, Respondent Trezza is the on-site agent authorized by Respondent Pacific and Respondent Amity to manage their properties located at 116 Pacific Street and 129 Amity Street 1. FACTUAL BACKGROUND The Redevelopment of the Subject Properties 16. Petitioners are planning, and in the process of, redeveloping the properties located at 112 Pacific Street and 349 Henry Street in Brooklyn. As part of the redevelopment plan, Petitioners are required to demolish both properties. 17. Currently, Petitioners are scheduled to demolish the four (4) and five (5) story building located at 112 Pacific Street and the five (5) story building at 349 Henry Street in the immediate future. Petitioners demolition contractor, Scala Contracting Co., Inc., has filed for and obtained approval of demolition plans for the demolition of 112 Pacific Street and 349 Henry Street and obtained a permit for the full building demolition of 349 Henry Street from the NYC Department of Buildings ("DOB"). (Copies of the approvals obtained by Scala Contracting Co., Inc. for 112 Pacific Street and 349 Henry Street are attached hereto as Exhibit E ). (A copy of 1 As discussed above, since Respondents Ellen Knox Roston and Charlotte Rea reside outside of the State of New York, Respondent Trezza is the authorized agent and management company of Respondent Amity. Similarly, upon information and belief, Respondent Trezza is the management company of Respondent Pacific. In fact, Petitioners have negotiated primarily with Trezza for access to both properties. In the event that the Petition is granted, in reality, Trezza will be the party tasked with providing access to Petitioners. Accordingly, Trezza should be bound by an Order resulting from this proceeding and has therefore been named as a party herein. 4 of 13

5 the permit obtained by Scala Contracting Co., Inc. for 349 Henry Street is attached hereto as Exhibit "F"). 18. Demolition is to be performed on the east side of Henry Street between Amity Street and Pacific Street (Block 291, Lots 1 and 8). (A survey of Block 291, Lots 1 and 8 is attached hereto as Exhibit G ). 19. Notably, the properties owned by Respondent Pacific and Respondent Amity border the properties owned by Petitioner Pacific and Petitioner Henry. Specifically, 116 Pacific Street (Block 291, Lot 10) directly abuts 112 Pacific Street (Block 291, Lot 8), while 129 Amity Street (Block 291, Lot 10) borders 349 Henry Street (Block 291, Lot 1). The Necessity of Access to Respondents Adjoining Properties 20. Due to the adjoining nature of the properties, in order to proceed with the demolition plans, Petitioners must access the properties owned by Respondent Pacific and Respondent Amity. The access required, and sought in this proceeding, will serve to protect the properties of all parties and the public at large. 21. To start, for safety purposes, Petitioners demolition contractor, pursuant to NYC Building Code 3307 ( Protection of Pedestrians ), 3308 ( Protections of Unenclosed Perimeters ) and 3309 ( Protection of Adjoining Property ), is required to provide and maintain protection around the perimeter of the site consisting of protective sheds, scaffolding, netting, roof protection and other protections and construction fencing. As of this date, Petitioners demolition contractor has prepared plans, received approvals and obtained permits for these required protections. (See Exhibit E ). 22. However, the east wall of the building located at 112 Pacific Street runs along the west wall of the building located at 116 Pacific Street. (Annexed hereto as Exhibit H" is the NYC 5 of 13

6 Tax Map for Kings County, Block 291). As a result, there are certain protections, including, but not limited to, scaffolding, netting, and roof protection, that Petitioner Pacific is required to install upon Respondent Pacific s adjacent property. As a result, Petitioner Pacific requires access to the adjacent property owned by Respondent Pacific in order to erect, install and maintain the protections mandated by the NYC Building Code in connection with the demolition of the structure located at 112 Pacific Street. 23. Moreover, while the above protections are only applicable to 116 Pacific Street, Petitioners nonetheless require access to both 116 Pacific Street and 129 Amity Street in order to properly survey and monitor the properties prior to and during the demolition process. 24. As the abutting properties owned by Respondent Pacific and Respondent Amity are located within the Cobble Hill Historic District, Petitioners have agreed to comply with the DOB's Technical Policy and Procedure Notice 10/88 ("TPPN 10/88") 2. (A copy of TPPN 10/88 is annexed hereto as Exhibit I ). It is Petitioners intent, following the guidelines of TPPN 10/88, to establish a monitoring program for these adjacent buildings in order to monitor, and protect against, any movement during the course of the full building demolition projects. The monitoring program is designed to: I. Monitor any movement across existing cracks: a. The monitoring of existing cracks will require the installation of small crack gauges that will be adhered to existing visible cracks to be surveyed by consultants that Petitioner has retained. The installed crack gauges will be 2 It is Petitioners position that TPPN 10/88 does not apply as there is no blasting planned as part of the demolition but Petitioners will nonetheless abide by TPPN 10/88 s guidelines for a monitoring program for these adjacent properties. 6 of 13

7 monitored for the duration of the full building demolition projects. The crack monitors will be removed at the completion of demolition. II. Provide seismic monitoring to record vibrations during demolition operations: a. Seismic monitors will be installed at the properties adjacent to the demolition site and remotely monitored. III. Monitor any movement or tilting of adjacent building structures: a. Small targets (approximately 4" in diameter) will be adhered to locations on adjacent building facades. Petitioners engineers will regularly survey the targets to monitor any movement or tilting of adjacent building facades for the duration of the full building demolition. The targets will be removed at the completion of the demolition. 25. In order to monitor the full building demolition projects as described above, Petitioners and their subcontractors require access to the abutting properties owned by Respondent Pacific and Respondent Amity for the purpose of: (a) conducting pre-demolition surveys of the interiors and exteriors of the Respondents properties to be performed by Petitioners consultant, Protec Documentation Services; (b) installing seismographs for remote monitoring of vibrations at the lower levels of Respondents properties; (c) installing targets for remote surveying of movement at these properties; and (d) installing crack gauges for surveying crack movement. 26. For those reasons set forth above, Petitioners will require access to these properties for approximately four (4) months, commencing immediately. Petitioners Good Faith Attempts to Negotiate Access with Respondents 27. Since approximately October 2016, Petitioners have repeatedly tried to secure Respondents cooperation to gain the access Petitioners need to proceed with these demolition 7 of 13

8 projects. Unfortunately, despite their good faith efforts, Petitioners have been unable to secure cooperation from Respondents. 28. As early as October 14, 2016, Petitioners provided Respondents with an initial License Agreement as to the 116 Pacific Street property. (A copy of the Draft Proposed License Agreement, dated and sent on October 14, 2016, is annexed hereto as Exhibit K ). Subsequently, Petitioners sent a draft License Agreement to Respondents regarding the 129 Amity Street property. (A copy of the Draft Proposed License Agreement, dated and sent on November 1, 2016, is annexed hereto as Exhibit L ). 29. On or about November 18, 2016, pursuant to the NYC Building Code, Petitioners sent written notice to Respondents of the planned structural demolition and the required access to the properties. (A copy of the Notices is annexed hereto as Exhibit M ). 30. In December 2016, the attorneys for both parties discussed the proposed access to the properties. Specifically, Petitioners attorney Joshua Levy engaged in good faith negotiations with Respondents attorney Kurt Roth. On December 23, 2016, there was a telephone conference that included representatives from Petitioners, namely Akiva Kobre and Mr. Levy, and representatives from Respondents, namely Madeline Trezza of Respondent Trezza and Mr. Roth. Throughout the negotiations, Ms. Trezza represented that Trezza was the authorized managing agent of both properties and their owners and had authority to enter into any License Agreements. 31. Thereafter, on December 27, 2016, Daniel Goldschmiedt, Petitioners project manager, and Ms. Trezza attended a meeting together at the subject demolition sites at 112 Pacific Street and 349 Henry Street. At this meeting, the property at 116 Pacific Street was inspected by representatives from Petitioners and Respondents. Although only one property was inspected, 8 of 13

9 both properties were discussed at length. (See s regarding December 27, 2016 meeting annexed hereto as Exhibit N ). 32. In the week following the December 27, 2016 meeting, Petitioners communicated with Respondents on various occasions concerning finalizing the License Agreements for both properties. The objective of the negotiations was to reach an agreement that would allow Petitioners access to Respondents properties for the purpose of: (a) conducting a pre-construction survey to establish baseline building conditions; (b) installing vibration and crack monitoring; and (c) erecting protection work. 33. On or about January 5, 2017, Mr. Levy presented Mr. Roth with a revised and updated License Agreement for the property located at 112 Pacific, which included revisions requested by Respondent Pacific. (Annexed hereto as Exhibit J is a copy of the Proposed License Agreement, dated January 5, 2017). Although counsel for both parties were under the impression that an agreement had been reached and that Respondent would sign off on the License Agreement, Mr. Levy was notified on or about January 9, 2017 that Respondent Pacific had rejected the terms and made additional demands. The new demands, raised at the eleventh hour after much negotiation, consisted of the following: (1) that the parties conduct a second on-site meeting so that Respondent Pacific could have its architect present; and (2) that Petitioner Pacific pay additional fees, including, but not limited to, all fees associated with the architect to be paid prior to the execution of the agreement and any costs incurred as a result of tenants vacating the properties. 34. Thus, despite their diligent efforts to secure cooperation from Respondents, Petitioners requests for access have been met with denials, delays, and unreasonable demands that 9 of 13

10 compromised the execution of any license agreements between the parties. Accordingly, the instant proceeding has been necessitated. 35. Petitioners have an interest in completing the redevelopment projects on their properties as quickly as possible and in avoiding unnecessary delay and expense to the construction process. However, based on Respondents continued refusal to allow access to their properties, the demolition projects have already been significantly delayed for both 112 Pacific Street and 349 Henry Street. These delays have resulted in additional project costs to Petitioners and every day that goes by the damages continue to rise at a staggering rate. Specifically, every day Petitioners incur approximately twenty-seven thousand and four hundred dollars ($27,400.00) in additional interest on their loan for development. Most importantly, if Petitioners have not completed the demolition of both buildings by March 15, 2017, and obtain a foundation permit for the new building, the Lender for the development loan will require an additional six months of interest in the amount of five million dollars ($5,000,000.00). 36. In essence, as of this date, the demolition project has come to a complete halt. It has therefore become imperative that Petitioners be granted a license to access Respondents properties on an expedited basis. It is respectfully requested that the Court grant permission for Petitioners, their subcontractors, agents and representatives to enter upon Respondents properties, as soon as possible. 37. Further, as shedding, scaffolding and roof protection must be erected on Respondent Pacific s property, Respondent Pacific s signature may be required on future agency applications. It is therefore respectfully requested that the Court include a directive in its order that Respondent Pacific is to cooperate with Petitioner Pacific by signing and submitting all 10 of 13

11 applications and other documentation required by the DOB and any other City or State agency to secure additional permits required for the demolition work described herein. FIRST CAUSE OF ACTION (Judgment Pursuant to RPAPL 881) 38. Petitioners repeat and reallege each and every allegation contained in Paragraphs 1 through 34 of this Verified Petition as if fully set forth herein. 39. Petitioners are entitled to a license to enter upon the premises of Respondents by virtue of the provisions of Section 881 of the Real Property Actions and Proceedings Law. 40. Petitioners are ready, willing and able to commence work immediately. 41. The work that needs to be performed cannot be performed without gaining access to Respondents properties. 42. Petitioners and their contractors are prepared to provide certificates of insurance to Respondents, listing Respondents 116 Pacific Street LLC, Ellen Knox Roston and Charlotte Rea as additional insureds. 43. Petitioners have no adequate remedy at law. NO PRIOR APPLICATION 44. No prior application for the relief requested herein has been made. PRAYER FOR RELIEF WHEREFORE, Petitioners pray for a judgment pursuant to RPAPL 881: A. Granting Petitioners, and their agents, subsidiaries, assigns and representatives, a license to enter upon and access the real properties owned by Respondent Pacific known as 116 Pacific Street, Brooklyn, New York (Block 291, Lot 10) and Respondent Amity known as of 13

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