FILED: NEW YORK COUNTY CLERK 01/29/ :17 AM INDEX NO /2014 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 01/29/2015

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1 FILED: NEW YORK COUNTY CLERK 01/29/ :17 AM INDEX NO /2014 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 01/29/2015

2 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT X ROSEN & GORDON, LLC and OLAM TRADING CORP - against - Plaintiffs, HARLEM CAPITAL CENTER, LLC, SAMUEL STEVEN JEMAL, ABRAHAM ALAN JEMAL, NATHAN CHENEY, MORRIS COHEN and JACK COHEN, Index No.: /2014 PRE-ARGUMENT STATEMENT Defendants X 1. The title of this action is as set forth in the caption. 2. The full names of the original parties are as set forth in the caption. There have been no changes in the parties. 3. Counsel for Plaintiffs ROSEN & GORDON, LLC and OLAM TRADING CORP. ( Plaintiffs-Appellants ): Borah, Goldstein, Altschuler, Nahins & Goidel, P.C. 377 Broadway, 6 th Floor New York, New York (212) x Counsel for Defendants HARLEM CAPITAL CENTER, LLC, SAMUEL STEVEN, JEMAL, ABRAHAM ALAN JEMAL, NATHAN CHENEY, MORRIS COHEN and JACK COHEN: Charles E. Boulbol, P.C. 26 Broadway, 17 th Floor New York, New York (212) This is a Cross Appeal from an order of the Supreme Court, New York County dated December 17, 2014 and entered on December 18, 2014 (the Order ). A copy of the Order appealed from with Notice of Entry and affidavit of service is annexed as Exhibit A. 1

3 6. Harlem Capital Center LLC and Plaintiffs were parties to a Lease. Samuel Steven Jemal, Abraham Alan Jemal, Nathan Cheney, Morris Cohen and Jack Cohen were limited guarantors of the Lease. Harlem Capital Center LLC surrendered the Premises to Plaintiffs who immediately accepted the surrender by Harlem Capital Center LLC and re-entered the premises. There was no provision of the Lease that authorized Plaintiffs re-entry in the event of Harlem Capital Center LLC s abandonment of the Premises except upon 45 days notice that admittedly never was given. Upon re-entry, Plaintiffs immediately operated the Premises in their own name and for their own account. Plaintiffs never gave Defendants any notice of intention to re-enter and re-let on account of Plaintiffs. Sub rosa deals were made by Plaintiffs with Harlem Capital Center LLC s mortgagee; lawsuits with respect to the Premises were commenced by Plaintiffs in their own name and for their own account; and Plaintiffs re-let the Premises for a 99 year term with a third party while at the same claiming in this case that the Lease with Harlem Capital Center LLC remains in full force and effect. Moreover, Plaintiffs Complaint in this case asserts that the obligations of Harlem Capital Center LLC under the Lease and the obligations of Samuel Steven Jemal, Abraham Alan Jemal, Nathan Cheney, Morris Cohen and Jack Cohen under the Limited Guaranties are co-terminus, which pursuant to the terms of the Lease and the Limited Guaranties the respective obligations of the parties most certainly are not co-terminus. Harlem Capital Center LLC made a pre-answer motion to dismiss the Complaint on the grounds that Plaintiffs accepted its surrender of the Premises by operation of law. Samuel Steven Jemal, Abraham Alan Jemal, Nathan Cheney, Morris Cohen and Jack Cohen moved to dismiss the Complaint on the grounds that because none of the conditions precedent to the imposition of liability under the Limited Guaranties had occurred and Plaintiffs had accepted Harlem Capital Center LLC s surrender by operation of law, they have no liability to Plaintiffs under the Limited Guaranties as a matter of law. 2

4 7. Despite Plaintiffs own admissions and overwhelming documentary evidence that not only did Plaintiffs accept Tenant s surrender by operation of law and also that none of the pre-conditions under the Limited Guaranties ever occurred, the IAS Court denied Defendants motion to dismiss the Complaint. The IAS Court also denied Plaintiffs Pre-Answer motion for summary judgment. 8. Reversal and/or modification is sought on the ground that surrender by operation of law was conclusively established by Plaintiff s own admissions and the documentary evidence. 9. There is currently one (1) related action pending in Supreme Court, New York County commenced by Harlem Capital Center against Rosen & Gordon, LLC, Olam Trading Corp., Arthur Rosen and Leta Gordon based upon their conversion of Harlem Capital Center LLC s security deposit. This related action is entitled Harlem Capital Center, LLC, v. Rosen & Gordon, et al., Index No /2014 ( Action No. 2 ). 10. In Action No. 2, Defendants filed an Answer asserting counterclaims against the non-party Limited Guarantors and Harlem Capital Center LLC moved for summary judgment on its conversion claim and to dismiss the counterclaims. In response to Harlem Capital Center LLC s motion, the Defendants made a cross-motion for summary judgment on their unanswered counterclaims. The motion and cross-motion have been assigned to Hon. Manuel Mendez and are currently returnable to the Motion Support Courtroom on February 17, There are no additional appeals pending in this action. 3

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6 Exhibit A

7 FILED: NEW YORK COUNTY CLERK 12/30/ :00 AM INDEX NO /2014 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 12/30/2014

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