SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

Transcription

1 INDEX NO /2012 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 09/07/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x BIDONTHECITY.COM LLC, Plaintiff, -against- PRUDENTIAL DOUGLAS ELLIMAN REAL ESTATE, PRUDENTIAL DOUGLAS ELLIMAN, DOUGLAS ELLIMAN, DOUGLAS ELLIMAN, LLC, DOUGLAS ELLIMAN REALTY, LLC, PRUDENTIAL REAL ESTATE AFFILIATES, INC., RACHEL KOENIG, LISA SIMONSEN, LINA MERCER, ALFRED RENNA, 74~H STREET BORROWER, LLC VALENTINE 11, LLC, and UNKNOWN PRINCIPALS) OF VALENTINE 11, LLC Defendants x VALENTINE 11, I.LC Index No /2012 Date filed: Sept. 7, 2012 SUMMONS OF THIRD-PARTY COMPLAINT Third-Party Plaintiff, -against- JAMES RINZLER, Individually, Third-Party Defendant x To: James Rinzler 200 Madison Avenue New York, New York YOU ARE HEREBY SUMMONED to submit answering papers to the Third- Party Complaint in this action, and to serve a copy of such papers on the attorneys for Defendant Valentine 11, LLC, Golenbock Eiseman Assor Bell & Peskoe LLP, within twenty (2Q) days of the date of service hereof, exclusive of the day of service (or within 30 days after tha service is complete if this summons is not personally delivered to you within the State of New York). In case of your failure to appear and answer the attached Third-Party Complaint, judgment will be taken against you by default for the relief demanded therein. t

2 New York County is designated as the place of trial. The basis of venue is CPLR Section 503. Dated: New York, New York September 7, 2012 GOLENBOCK EISEMAN ASSOR BELL & PESKOE LLP David M. Rubin Ana-Claudia Roderick 437 Madison Avenue New York, New York (212) Attorneys.for Third-Party Plazntiff Valentine 11, LLC

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK BIDONTHECITY.COM LLC, Plaintiff, PRUDENTIAL DOUGLAS ELLIMAN REAL ESTATE, PRUDENTIAL DOUGLAS ELLIMAN, DOUGLAS ELLTMAN, DOUGLAS ELLIMAN, LLC, DOUGLAS ELLIMAN REALTY, LLC, PRUDENTIAL REAL ESTATE AFFILIATES, INC., RACHEL KOENIG, LISA SIMONSEN, LTNA MERCER, ALFRED RENNA, 74TH STREET BORROWER, LLC, VALENTINE 11, LLC, and UNKNOWN PRINCIPALS) OF VALENTINE 11, LLC Index No /2012 Defendants. Valentine 11, LLC -against- -against- Third-Party Plaintiff, JAMES RINZLER, Individually, Third-Party Defendant ~ x DEFENDANT VALENTINE 11, LLC'S ANSWER, CROSS CLAIMS, JURY DEMAND AND THIRD-PARTY COMPLAINT Defendant Valentine 11, LLC ("Valentine"), by its attorneys; Golenbock Eiseman Assor Bell & Peskoe LLP, for its Answer to the Amended Complaint dated August 10, 2012 ("Amended Complaint") of Plaintiff, Bidonthecity.com, LLC ("Bid on the City") and for its cross-claims against Defendants Prudential Douglas Elliman Real Estate, Prudential Douglas Elliman, Douglas Elliman, Douglas Elliman, LLC, Prudential Rea] Estate Affiliates, Inc., Rachel Koenig, Lisa Sirr~onsen, Lina Mercer, Alfred Renna (collectively, the "Prudential

4 Defendants") and 74th Street Borrower, LLC, and Third-Party Complaint against James Rinzler states as follows : Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 1 of the Amended 2. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 2 of the Amended 3. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 3 of the Amended 4. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 4 of the Amended 5. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 5 of the Amended 6. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 6 of the Amended 7. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 7 of the Amended 8. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 8 of the Amended 9. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 9 of the Amended 10. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 10 of the Amended ~ This Answer is entered solely by Valentine and is not to be deemed an answer or acceptance of service by the "Unknown Principals) of Valentine 11, LLC." 2

5 1 l. Valentine denies knowledge or information sufficient to form a belief as to tha truth of the allegations in paragraph 11 of the Amended 12. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 12 of the Amended 13. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 13 of the Amended 14. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 14 of the Amended. 15. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 15 of the Amended 16. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 16 of the Amended 17. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 17 of the Amended 18. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 18 of the Amended 19. Valentine denies knowledge ar information sufficient to form a belief as to the truth of the allegations in paragraph 19 of the Amended 20. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 20 of the Amended 21. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 21 of the Amended

6 22. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 22 of the Amended 23. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 23 of the Amended 24. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 24 of the Amended 25. The allegations in paragraph 25 assert a definition for certain defendants named in Plaintiff's Amended Complaint to which no response is required. To the extent a response is required, Valentine denies the allegations. 26. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 26 of the Amended 27. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 27 of the Amended 28. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 28 of the Amended 29. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 29 of the Amended 30. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 30 of the Amended 31. Valentine admits the allegations contained in paragraph 31 of the Amended 4

7 32. Valentine states that the allegations in paragraph 32 of the Amended Complaint are not directed at Valentine and therefore require no response. To the extent a response is required, Valentine denies the allegations. AS AND FOR A FIRST CAUSE OF ACTION 33. Valentine repeats and incorporates by reference the responses set Earth in the preceding paragraphs 1-32 as fully set forth herein. 34. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 34 of the Amended 3S. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 35 of the Amended Complaint, except that Valentine denies that it "visited Bid On The City's website during the relevant timeframe and agreed to [a buyer's premium of three percent (3%) of the gross sales price]." 36. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 36 of the Amended 37. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 37 of the Amended 38. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 38 of the Amended 39, Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 39 of the Amended 40. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 40 of the Amended Complaint, except that Valentine 5

8 denies that it visited Bid on the City's website ar agreed to pay Bid on the City a "commission of three percent (3%) of the gross sales price." 41. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in the first sentence of paragraph 41 of the Amended Complaint, except that Valentine denies that it visited Bid an the City's website or agreed "to pay a withdrawal fee of three percent (3%) of the agreed reserve price if the Property was removed from auction during the listing period." 42. The allegations in paragraph 42 of the Amended Complaint assert legal conclusions to which no response is required. To the extent a response is required, Valentine denies the allegations. 43. The allegations in paragraph 43 of the Amended Complaint assert legal conclusions to which no response is required. To the extent a response is required, Valentine denies the allegations. 44. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 44 of the Amended 45. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 45 of the Amended 46. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 46 of the Amended 47. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 47 of the Amended 48. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 48 of the Amended 6

9 49, Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 49 of the Amended 50. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 50 of the Amended 51. Valentine denies the allegations contained in paragraph 51 of the Amended 52. Valentine denies the allegations contained in paragraph 52 of the Arrzended Complaint, except that Valentine admits that the articles of organization for Valentine were filed with the Florida Secretary of State on May 7, Valentine denies the allegations contained in paragraph 53 of the Amended Complaint, except admits that the "Property was purchased by Valentine" an or about May 26, 2009 and that Valentine entered into a Contract of Sale dated as of May 13, 2009 with 74`" Street Borrower, LLC and respectfully refers to that document for its terms. 54. Valentine denies the allegations contained in paragraph 54 of the Amended 55. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph SS of the Amended 56. Valentine denies the allegations contained in paragraph 56 of the Amended 57. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the first sentence of paragraph 57 of the Amended Complaint and denies the allegations contained in the second sentence thereof. 7

10 58. Valentine denies the allegations contained in paragraph 58 of the Amended Complaint 59. Valentine denies the allegations contained in paragraph 59 of the Amended AS AND FOR A SECOND CAUSE OF ACTION 60. Valentine repeats and incorporates by reference the responses set forth in the preceding paragraphs 1-59 as fully set forth herein. 61. Valentine denies the allegations contained in paragraph 61 of the Amended 62. Valentine denies the allegations contained in paragraph 62 of the Amended 63. Valentine denies the allegations contained in paragraph 63 of the Amended AS AND FOR A THIRD CAUSE OF ACTION 64. Valentine repeats and incorporates by reference the responses set forth in the preceding paragraphs 1-63 as fully set forth herein. 65. Valentine denies the allegations contained in paragraph 65 of the Amended 66. Valentine denies the allegations contained in paragraph 66 of the Amended 67. Valentine denies the allegations contained in paragraph 67 of the Amended I.5 8

11 68. Valentine denies the allegations contained in paragraph 68 of the Amended 69. Valentine denies the allegations contained in paragraph 69 of the Amended AS AND FOR A FOURTH CAUSE OF ACTION 70. Valentine repeats and incorporates by reference the responses set forth in the preceding paragraphs 1-69 as fully set forth herein. 71. Valentine denies the allegations contained in paragraph 71 of the Amended 72. Valentine denies the allegations contained in paragraph 72 of the Amended 73, The allegations in paragraph 73 of the Amended Complaint assert legal conclusions to which not response is required. To the extent a response is required, Valentine denies the allegations. 74. Valentine denies the allegations contained in paragraph 74 of the Amended AS AND FOR A FIFTH CAUSE OF ACTION 75. Valentine repeats and incorporates by reference the responses set Earth in the preceding paragraphs 1-74 as fully set forth herein. 76. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 76 of the Amended Complaint, except that Valentine denies Bid on the City "furnished substantial work, labor, services and materials to and on 9

12 behalf of 'Valentine and denies that Valentine "accepted and benefited from the work performed by Bid On The City." 77. Valentine denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 77 of the Amended 78. Valentine denies the allegations contained in paragraph 78 of the Amended 79. Valentine denies the allegations contained in paragraph 79 of the Amended AS AND FOR A SIXTH CAUSE OF ACTION 80. Valentine repeats and incorporates by reference the responses set forth in the preceding paragraphs 1-79 as fully set forth herein. 81. Valentine denies the allegations contained in paragraph 81 of the Amended 82. Valentine denies the allegations contained in paragraph 82 of the Amended 83. Valentine denies the allegations contained in paragraph 83 of the Amended 84. Valentine denies the allegations contained in paragraph 84 of the Amended 85. Valentine denies the allegations contained in paragraph 85 of the Amended 10

13 AS AND FOR A SEVENTH CAUSE OF ACTION 86. Valentine repeats and incorporates by reference the responses set forth in the preceding paragraphs 1-85 as fully set forth herein. 87. Valentine states that the allegations in paragraph 87 of the Amended Complaint are not directed at Valentine and therefore require no response. To the extent a response is required, Valentine denies the allegations. 88. Valentine states that the allegations in paragraph $8 of the Amended Complaint are not directed at Valentine and therefore require no response. To the extent a response is required, Valentine denies the allegations. 89. Valentine states that the allegations in paragraph 89 of the Amended Complaint are not directed at Valentine and therefore require no response. To the extent a response is required, Valentine denies the allegations. 90. Valentine states that the allegations in paragraph 90 of the Amended Complaint are not directed at Valentine and therefore require no response. To the extent a response is required, Valentine denies the allegations. AS AND FOR AN EIGHTH CAUSE OF ACTION 91. Valentine repeats and incorporates by reference the responses set forth in the preceding paragraphs 1-90 as fully set forth herein. 92. Valentine states that the allegations in paragraph 92 of the Amended Complaint are not directed at Valentine and therefore require no response. To the extent a response is required, Valentine denies the allegations. 11

14 93. Valentine states that the allegations in paragraph 93 of the Amended Complaint are not directed at Valentine and therefore require no response. To the extent a response is required, Valentine denies the allegations. 94. Valentine states that the allegations in paragraph 94 of the Amended Complaint are not directed at Valentine and therefore require no response. To the extent a response is required, Valentine denies the allegations. 95. Valentine states that the allegations in paragraph 90 of the Amended Complaint are not directed at Valentine and therefore require no response. To the extent a response is required, Valentine denies the allegations. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE 96. The Amended Complaint fails to set forth a cause of action against Valentine as to which relief can be granted. SECOND AFFIRMATIVE DEFENSE 97. Plaintiff's claims are barred, in whole or in part, by defenses founded on documentary evidence. THIRD AFFIRMATIVE DEFENSE 98. Plaintiff's claims are barred, in whole or in part, by the statute of limitations. FOURTH AFFIRMATIVE DEFENSE 99. Plaintiff's claims are barred, in whole or in part, by the statute of frauds. FIFTH AFFIRMATIVE DEFENSE 100. Plaintiff lacks standing and legal capacity to commence this action against Valentine. 12

15 SIXTH AFFIRMATIVE DEFENSE 101. Plaintiff's claims axe barred, in whole or in part, by the principals of waiver and/or estoppel. SEVENTH AFFIRMATIVE DEFENSE 102. Plaintiff's claims are barred, in whole or in part, by the doctrine of laches. CROSS-CLAIMS AGAINST DEFENDANTS PRUDENTIAL DOUGLAS ELLIMAN REAL ESTATE, PRUDENTIAL DOUGLAS ELLIMAN, DOUGLAS ELLIMAN, llouglas ELLIMAN, LLC, PRUDENTIAL REAL ESTATE AFFILIATES, INC., RACHEL KOENIG, LISA SIMONSEN, LINA MERCER, ALRED RENNA AND 74T'~ STREET BORROWER, LLC Defendant-crass claimant Valentine, by its attorneys Golenbock Eiseman Assor Bell & Peskoe LLP, for its cross-claims against Prudential Douglas Elliman Real Estate, Prudential Douglas Elliman, Douglas Elliman, Douglas Elliman, LLC, Prudential Real Estate Affiliates, Inc., Rachel Koenig, Lisa Simonsen, Lina Mercer, Alfred Renna (collectively, the "Prudential Defendants") and 74th Street Borrower, LLC alleges on knowledge as to its own actions and status, and otherwise upon information and belief, as follows: PARTIES 1. Upon information and belief, defendants Prudential Douglas Elliman Real Estate, Prudential Douglas Elliman, Douglas Elliman, Douglas Elliman, LLC, Prudential Real Estate Affiliates, Inc. are real estate brokerage firms that are licensed by the State of New York, conduct business within the State of New York, and maintain their principal places of business within New York. 13

16 2, Upon information and belief, at all times relevant to this cross-claim Rachel Koenig, Lisa Simonsen, Lina Mercer and Alfred Renna were associated with one or more of Prudential Douglas Elliman Real Estate, Prudential Douglas Elliman, Douglas Elliman, Douglas Elliman, LLC, Prudential Real Estate Affiliates, Inc. as real estate brokers and/or salespersons. 3. Upon information,and belief, 74th Street Borrower, LLC ("74t" Street Borrower") is a dissolved foreign :limited liability company organized pursuant to the laws of the State of Delaware, with a principal place of business at 200 Madison Avenue, New York, New York. 4. Valentine 11, LLC ("Valentine") is a limited liability company organized and existing pursuant to the laws of tl~e State of Florida, with a principal place of business at 220 Banyan Road, Palm Beach, FL FACTUAL BACKGROUND S. In or about April 2009, Valentine learned of the property located at 11 East 74`h Street, New York, New York (the "Property") through its broker, A. Laurance Kaiser IV ("Kaiser"). 6. In or about April 2009, Kaiser contacted one or more of the Prudential Defendants about the Property. The Prudential Defendants, as agents of 74t" Street Borrower, stated to Kaiser that they had an exclusive listing of the Property and that all negotiations and potential purchases must be performed through them. 7. Valentine was not able to independently ascertain the accuracy of the Prudential Defendants' representations (as agents of 74th Street Borrower), including but not limited to their statements that they had an exclusive listing of the Property. As such, 14

17 Valentine relied on the Prudential Defendants and 74t~' Street Borrower's exclusive knowledge these facts. 8. On or about May 13, 2009, Valentine entered into a Contract of Sale with an incorporated rider (collectively the "Contract of Sale") with 74th Street Borrower for the Property. 9. Pursuant to terms of the Contract of Sale, Valentine was the purchaser of the Property and 74th Street Borrower _was the seller of the Property. 10. Paragraph 27 of the Contract of Sale states that "Seller and Purchaser each represents and warrants to the other that it has not dealt with any broker in connection with this sale other than Douglas Elliman Lisa Simonsen/Rachel Koenig [and] Key Ventures, Inc. A. Lawrence Raiser IV [sic] (`Broker') and Seller shall pay Broker any commission earned pursuant to a separate agreement between Seller and Broker. Seller and Purchaser shall indemnify and defend each -other against any costs, claims and expenses, including reasonable attorneys' fees, arising out of the breach on their respective parts of any representation or agreement contained in this paragraph. The provisions of this paragraph shall survive Closing or, if Closing does not occur, the termination of this contract." 11. Paragraph 45 of the rider similarly states that: "Purchaser and Seller shall indemnify, defend and hold one another harmless from and against any and all claims, loss, liability, costs and expenses (including, without limitation, reasonable attorneys' fees) resulting from a breach of the representation contained in paragraph 27 of the printed form of Contract. The provisions of this paragraph shall survive the Closing or earlier termination of this Contract." 15

18 12. Subject to these warranties and representations, among others, the sale of the Property closed on or about May 26, On or about May 9, 2012, Bid on the City filed a Complaint alleging that it was owed a commission or withdrawal fee in connection with the Property because of its purported work as a licensed real.estate broker. On or about August 10, 2012 Bid on the City filed an Amended Complaint similarly seeking a commission or withdrawal fee from all of the named defendants. Valentine thereafter requested that 74thStreet Borrower, LLC indemnify Valentine pursuant to the Contract of Sale. 74th St. Borrower LLC refused to indemnify Valentine and has refused to date. FIRST CROSS-CLAIM AGAINST 74TH STREET BORROWER, LLC (NULLIFICATION OF THE CERTIFICATE OF CANCELLATION) 14. Valentine repeats and realleges the allegations of paragraphs 1-13, as though fully set forth herein. cancellation. 15. Upon information and belief, 74t" Street Borrower has filed a certificate of 16. In winding up its affairs, a Delaware limited liability company is required to make provisions that will be reasonably likely to be sufficient to provide compensation for claims that are likely to become known to the limited liability company within 10 years after the date of dissolution. 17. Upon information and belief, 74th Street Borrower was aware of facts indicating that Bid on the City was likely to bring claims relating to the Property within ten years of the date of dissolution. 18. Upon information and belief, Bid on the City allegedly requested payment of a commission from 74th Street Borrower in anticipation of bringing its claims. 16

19 19. At the time that 74th Street Borrower wound up its affairs, it was aware that it had not any disclosed any dealings it may have had with Bid on the City in the Contract of Sale. 20. Pursuant to the Contract of Sale, 74th Street Borrower agreed to indemnify Valentine for any "costs, claims and expenses, including reasonable attorneys' fees, arising out of the breach on [its] respective parts of any representation or agreement contained in" paragraphs 27 and 45 of the Contract of Sale `" Street Borrower was aware that if Bid on the City were to bring claims in connection with the Property, 74th Street Borrower would be required to indemnify Valentine for its costs, expenses and attorneys' fees relating to such suit. Valentine is therefore a creditor of 74th Street Borrower. 22. Upon information and belief, 74`" Street Borrower failed to make provisions that would be reasonably likely to be sufficient to provide compensation to Valentine th Street Borrower has failed to wind up its affairs in compliance with Delaware's Limited Liability Company Act. 24. By reason of the foregoing, 74th Street Borrower's certificate of cancellation should be nullified. SECOND CROSS-CLAIM AGAINST 74TH STREET BORROWER, LLC (BREACH OF CONTRACT) 2S. Valentine repeats and realleges the allegations of paragraphs 1-24, as though fully set forth herein. 26. The Contract of Sale is a binding agreement between Valentine and 74Th Street Borrower I.5 17

20 27 74tH Street Borrower disclosed that it h ad dealt exclusively with Douglas Elliman Lisa Simonsen/Rachel Koenig and Key Ventures, Inc. A. Laurance Kaiser IV in connection with the sale of the Property. 28. Valentine duly performed its obligations under the Contract of Sale t" Street Borrower's misrepresentations about its dealings with brokers in connection with the sale of the Property constituted a breach of the Contract of Sale. 30. Valentine has been damaged by 74t" Street Borrower's breach of the Contract of Sale. Valentine's harm includes, but is not limited to, incurring substantial legal fees in connection with defending against Bid on the City's claims. 31. By reason of the foregoing, 74th Street Borrower is liable to Valentine in an amount to be determined at trial; but in no event less than the amount of Valentine's attorneys' fees, costs and expenses incurred in defending against Bid on the City's claims, as well as any damages or judgments entered against Valentine. THIRD CROSS-CLAIM AGAINST 74TH STREET BORROWER, LLC (INDEMNIFICATION) 32. Valentine repeats and realleges the allegations of paragraphs 1-31, as though fully set forth herein. 33. Pursuant to the terms of the Contract of Sale, Valentine is entitled to, and should be, indemnified by 74th Street Borrower for the full and complete amount of Valentine's attorneys' fees, costs and expenses in defending against Bid on the City's claims, as well as in the full amount of any damages or judgments that might be entered against Valentine. 34. By reason of the foregoing, 74`x' Street Borrower is liable to Valentine in the amount of Valentine's attorneys' fees, costs and expenses in defending against Bid on the 18

21 City's claims, as well as in the full amount of any damages or judgments that might be entered against Valentine. FOURTH CROSS-CLAIM AGAINST 74TH STREET BORROWER AND THE PRUDENTIAL DEFENDANTS (FRAUDULENT INDUCEMENT) 35. Valentine repeats and realleges the allegations of paragraphs 1-34, as though fully set forth herein. 36. The Prudential Defendants' statements regarding their exclusive listing status were representations of material fact `h Street Borrower's representations that the Prudential Defendants had an exclusive listing and that 74t" Street Borrower had not dealt with any dealers other than those listed in the Contract of Sale were representations of material fact. 38. The Prudential Defendants and 74th Street Borrower were better situated than Valentine to determine whether the Prudential Defendants had an exclusive listing on the Property and whether 74`h Street Borrower or the Prudential Defendants, as agents of 74tH Street Borrower, had dealt with any brokers other than those listed in paragraphs 27 and 45 of the Contract of Sale. Valentine could not have independently ascertained the accuracy of these representations. These facts were therefore within the peculiar knowledge of 74t~' Street Borrower and the Prudential Defendants. 39. When entering into the Contract of Sale, Valentine reasonably relied on 74tH Street Borrower and the Prudential Defendants' statements and representations that they had not dealt with any brokers other than those listed in the Contract of Sale and that the Prudential Defendants had an exclusive listing of the Property. 19

22 40. Upon information and belief, 74`h Street Borrower and the Prudential Defendants made these representations knowingly, for the purpose of inducing Valentine to enter into the Contract of Sale. 41. If it is determined that 74th Street Borrower or the Prudential Defendants as agents of 74t" Street Borrower dealt with Bid on the City or that the Prudential Defendants did not have an exclusive listing of the Property, then 74t" Street Borrower the Prudential Defendants' representations were misrepresentations and an active concealment of a material fact. 42. Valentine has been damaged by 74`x' Street Borrower and the Prudential Defendants' false representations. Valentine's harm includes, but is not limited to, incurring substantial legal fees in connection with defending against Bid on the City's claims. 43. By reason of the foregoing, 74th Street Borrower and the Prudential Defendants are liable to Valentine in the amount of damages to be determined at trial, including but is not limited to, attorneys' fees, costs and expenses connection with defending against Bid on the City's claims. FIFTH CROSS-CLAIM AGAINST 74TH STREET BORROWER AND THE PRUDENTIAL DEFENDANTS (NEGLIGENT MISREPRESENTATION) 44. Valentine repeats and realleges the allegations of paragraphs 1-43, as though fully set forth herein. 45. The Prudential Defendants and 74th Street Borrower had a duty to impart correct information on Valentine regarding (1) whether the Prudential Defendants had an exclusive listing of the Property, and (2) whether 74t" Street Borrower and the Prudential 20

23 Defendants, as agents of 74`" Street Borrower, had dealt with any brokers other than those listed in the Contract of Sale. This information was within the peculiar knowledge of 74tH Street Borrower and the Prudential Defendants, thereby creating a special relationship between Valentine, 74t" Street Borrower and the Prudential Defendants. 46. Valentine reasonably relied on 74th Street Borrower and the Prudential Defendants for information that was within 74t" Street Borrower and the Prudential Defendants' peculiar knowledge. 47. In the event it is determined that 74`h Street Borrower or the Prudential Defendants as agents of 74t" Street Borrower, dealt with Bid on the City or that the Prudential Defendants did not have an exclusive listing of the Property, then the information given by 74th Street Borrower and the Prudential Defendants was false and incorrect. 48. By reason of the foregoing, 74`h Street Borrower and the Prudential Defendants are liable to Valentine in the amount of damages to be determined at trial, including but is not limited to, attorneys' fees, costs and expenses connection with defending against bid on the City's claims. THIRD-PARTY COMPLAINT AGAINST JAMES RINZLER Defendant-third-party plaintiff Valentine, by its attorneys Golenbock Eiseman Assor Bell & Peskoe LLP, for its third-party Complaint against James Rinzler alleges on knowledge as to its own actions and status, and otherwise upon information and belief, as follows: 21

24 PARTIES 1. Upon information and belief, James Rinzler is the sole, controlling member of 74th Street Borrower and has been the sole controlling member since on or about March 3, th Street Borrower's principal place of business is 200 Madison Avenue, New York, New York Valentine 11, LLC ("Valentine") is a limited liability company organized and existing pursuant to the laws of the State of Florida, with a principal place of business at 220 Banyan Road, Palm Beach, FL FACTUAL BACKGROUND JAMES RINZLER' S ABUSE OF THE CORPORATE FORM 3. Valentine repeats and realleges the allegations of paragraphs 1-48 of its Cross Claims against the Prudential Defendants and 74th Street Borrower, as though fully set forth herein. 4. Upon information -and belief, at all times relevant to this Third-Party Complaint, James Rinzler was the sole or controlling member of 74th Street Borrower. 5. Upon information and belief, 74th Street Borrower acted as the seller of the Property on behalf of James Rinzler for the sole purpose of holding and/or transferring the funds received from that sale to James Rinzler. h. Upon information and belief, James Rinzler exercised complete domination over 74t" Street Borrower in connection with the sale of the Property and the dissolution of 74th Street Borrower. For example: a. James Rinzler caused 74th Street Borrower to make the warranties and representations contained in the Contract of Sale, as well as statements it 22

25 made to Valentine prior to the execution of the Contract of Sale regarding the Prudential Defendant's exclusive listing. b. Upon information and belief, James Rinzler failed to observe corporate formalities with regard to 74`h Street Borrower. Upon information and belief, James Rinzler was not only the sole shareholder, owner and member of 74`n Street Borrower, but also its sole manager and director. Upon information and belief 74th Street Borrower did not keep meeting minutes. c. Upon information and belief, 74`x' Street Borrower shares a common office space with James Rinzler. d. Upon information and belief, 74th Street Borrower was inadequately capitalized, and any- funds held by 74th Street Borrower were the held for the benefit of James Rinzler and for the purpose of providing James Rinzler with a tax benefit in connection with the sale of the Property. e. Upon information and belief, any assets and funds held by 74t" Street Borrower were for the sole, personal benefit and use of James Rinzler. 7. Upon information and belief, James Rinzler used the corporate form of 74`x' Street Borrower to make misrepresentations to Valentine, induce Valentine to enter into the Contract of Sale on the basis of those misrepresentations, and thereby committed a fraud and a wrong against Valentine. 8. Following the sale of the Property to Valentine, James Rinzler further abused the corporate form by causing the dissolution of 74th Street Borrower in an attempt to avoid 74"' Street Borrower's indemnity obligations to Valentine pursuant to the Contract of Sale. 23

26 9. Upon information and belief, prior to commencing tha dissolution of ~qcn Street Borrower, James Rinzler and 74t" Street Borrower were aware that Bid on the City was likely to bring claims relating to its alleged services as broker in connection with the Property. 10. Upon information and belief, James Rinzler and 74`h Street Borrower were also aware that litigation regarding the warranties and representations relating to brokers dealt with in connection with the sale of the Property was likely to occur. 11. Upon information and belief, James Rinzler caused the dissolution, winding up, and filing of the certificate of cancellation for 74th Street Borrower in order to attempt to avoid the indemnity provision in the Contract of Sale that would require 74th Street Borrower to make Valentine whole for any costs, expenses and attorney's fees incurred in connection with litigation relating to the warranties and representations in paragraphs 27 and 45 of the Contract of Sale. 12. James Rinzler has therefore abused the corporate form in order to fraudulently 'and wrongly make misrepresentations to Valentine and avoid the indemnification promised to Valentine. 13. Upon information and belief, if 74th Street Borrower has been fully wound up and dissolved, James Rinzler has taken over all assets and liabilities of 74`x' Street Borrower, JAMES RINZLERS MISREPRESENTATIONS 14. In or about April 2009, James Rinzler, by and through through 74th Street Borrower and its agents, the Prudential Defendants, represented to Valentine that the 24

27 Prudential Defendants held an exclusive listing on the Property and that no other brokers were involved in the potential sale of the Property. 15. On or about May 13, 2009, Valentine entered into a Contract of Sale with an incorporated rider with 74th Street'Borrower for the Property. 16. Pursuant to terms of the Contract of Sale, Valentine was the purchaser of the Property and 74th Street Borrower was the seller of the Property. 17. Paragraph 27 of the Contract of Sale states that "Seller and Purchaser each represents and warrants to the other that it has not dealt with any broker in connection with this sale other than Douglas Elliman Lisa Simonsen/Rachel Koenig [and] Key Ventures, Inc. A. Lawrence Raiser IV [sic] (`Broker') and Seller shall pay Broker any commission earned pursuant to a separate agreement between Seller and Broker. Seller and.purchaser shall indemnify.and defend each other against any costs, claims and expenses, including reasonable attorneys' fees, arising out of the breach on their respective parts of any representation or agreement contained in this- paragraph. The provisions of this paragraph shall survive Closing or, if Closing does not occur, the termination of this contract." 18. Paragraph 4S of the rider similarly states that: "Purchaser and Seller shall indemnify, defend and hold one another harmless from and against any and all claims, loss, liability, costs and expenses (including, without limitation, reasonable attorneys' fees) resulting from a breach of the representation contained in paragraph 27 of the printed form of Contract. The provisions of this paragraph shall survive the Closing or earlier termination of this Contract." 19. Subject to these warranties and representations, among others, the sale of the Property closed on or about May 26, S

28 20. Upon information and belief, James Rinzler caused 74`h Street Borrower to make all of the warranties and representations in the Contract of Sale, including the warranties and representations in paragraphs 27 and Valentine was not able to independently ascertain the accuracy of the warranties and representations made by James Rinzler through 74th Street Borrower, including but not limited to the representations the 74th Street Borrower had not deal with any brokers other than those named in paragraphs 27 and 45 of the Contract of Sale and that the Prudential Defendants had an exclusive listing for the Property. As such, Valentine relied on the James Rinzler and 74t~' Street Borrower's exclusive knowledge about these facts. 22. On or about May 9, 2012, Bid on the City filed a Complaint alleging that it was owed a commission or withdrawal fee in connection with the Property because of its purported work as a licensed real..estate broker. On or about August 10, 2012 Bid on the City filed an Amended Complaint similarly seeking a commission or withdrawal fee from all of the named defendants. FIRST CAUSE OF ACTION AGAINST JAMES RINZLER (BREACH OF CONTRACT BY 74TH STREET BORROWER FOR WHICH JAMES RINZLER SHOULD BE HELD LIABLE) 23. Valentine repeats and realleges the allegations of paragraphs 1-22, as though fully set forth herein. 24. The Contract of Sale is a binding agreement between Valentine and 74t~' Street Borrower. 26

29 25. James Rinzler exercised complete dominion over 74th Street Borrower and caused 74`" Street Borrower to enter into and make the warranties and representation contained in the Contract of Sale. 26. James Rinzler caused 74`h Street Borrower to disclose that it had dealt exclusively with Douglas Elliman Lisa Simonsen/Rachel Koenig and Key Ventures, Inc. A. Laurance Kaiser IV in connection with the sale of the Property. 27. Valentine duly performed its obligations under the Contract of Sale t" Street Borrower's misrepresentations about its dealings with Bid on the City constituted a wrong against Valentine and a breach of the Contract of Sale. 29. Valentine has been damaged by 74th Street Borrower's breach of the Contract of Sale. Valentine's harm includes, but is not limited to, incurring substantial legal fees in connection with defending against' Bid on the City's claims In light of James Rinzler's complete domination of 74~h Street Borrower, equity requires that he be held personally liable to Valentine for the breach of the Contract of Sale. 31. Upon information and belief, if 74`" Street Borrower has been dissolved, James Rinzler is liable for any breach of the Contract of Sale because he has assumed the assets and liabilities of 74t" Street Borrower. 32. By reason of the foregoing, James Rinzler, as the alter ego of 74`h Street Borrower, is liable to Valentine in an amount to be determined at trial, but in no event less than the amount of Valentine's attorneys' fees, costs and expenses incurred in defending against Bid on the City's claims, as well as any damages or judgments entered against Valentine, 27

30 SECOND CAUSE OF ACTION AGAINST JAMES RINZLER (INDEMNIFICATION BY 74TH STREET BORROWER FOR WHICH JAMES RINZL,WER SHOULD BE HELD LIABLE) 33. Valentine repeats and realleges the allegations of paragraphs 1-32, as though fully set forth herein. 34. Pursuant to the terms of the Contract of Sale, Valentine is entitled to, and should be, indemnified by 74th Street 'Borrower for the full and complete amount of Valentine's attorneys' fees, costs and expenses in defending against Bid on the City's claims, as well as in the full amount of any damages or judgments that might be entered against Valentine. 35. James Rinzler abused the corporate form by causing 74th Street Borrower to make rr~isrepresentations to Valentine regarding the brokers it had dealt with in connection with the sale and induce Valentine into purchasing the Property. James Rinzler furthex abused the corporate shield by dissolving 74th Street Borrower in order to attempt to avoid the indemnification provision. of the Contract of Sale. 36. By reason of the foregoing, James Rinzler, as the alter ego of 74th Street Borrower, is liable to Valentine in the amount of Valentine's attorneys' fees, costs and expenses in defending against Bid on the City's claims, as well as in the full amount of any damages or judgments that might be entered against Valentine. 28

31 THIRD CAUSE OF ACTION AGAINST JAMES RINZLER (FRAUDULENT INDUCEMENT BY 74T" STREET BORROWER FOR WHICH JAMES RINZLER SHOULD BE HELD LIABLE) 37. Valentine repeats and realleges the allegations of paragraphs 1-36, as though fully set forth herein. 38. James Rinzler caused 74~h Street Borrower to (1) make warranties and representations that it had not dealt with any brokexs other than those names in paragraphs 27 and 45 of the Contract of Sale; and (2) make statements that the Prudential Defendants had an exclusive listing of the Property. These statements, warranties and representations ware representations of a material fact. 39. James Rinzler and 74th Street Borrower were better situated than Valentine to determine whether the Prudential Defendants had an exclusive listing of the Property and whether 74t" Street Borrower or the Prudential Defendants had dealt with Bid on tha City. Valentine could not have independently ascertained the accuracy of these statements, warranties and representations. These facts were therefore within the peculiar knowledge of James Rinzler and 74t" Street Borrower. 40. When entering into the Contract of Sale, Valentine reasonably relied on the 74tH Street Borrower's statements that the Prudential Defendants had an exclusive listing on the Property and that he and had not dealt with any brokers other than those listed an the Contract of Sale. 41. Upon information and belief, James Rinzler caused 74th Street Borrower to make these representations knowingly, for the purpose of inducing Valentine to enter into the Contract of Sale. 29

32 42. If it is determined that (1) the Prudential Defendants did not have an exclusive listing or (2) that the Prudential Defendants (as agents for 74th Street Borrower) or 74th Street Borrower (under the control of James Rinzler) dealt with Bid on the City, then 74th Street Borrower's statements were misrepresentations and an active concealment of a material fact. 43. Valentine has been damaged by 74`h Street Borrower's false representations. Valentine's harm includes, but is not limited to, incurring substantial legal fees in connection with defending against` Bid on the City's claims. 44. By reason of the foregoing, James Rinzler, as the alter ego of 74`x' Street Borrower, is liable to Valentine in the amount of damages to be determined at trial, including but is not limited to, attorneys' fees, costs and expenses in connection with defending against Bid on the City's claims. FOURTH CAUSE OF ACTION AGAINST JAMES RINZLER (NEGLIGENT MISREPRESENTATION AGAINST 74TH STREET BORROWER FOR WHICH JAMES RINZLER SHOULD BE HELD LIABLE) 45. Valentine repeats and realleges the allegations of paragraphs 1-44, as though fully set forth herein th Street Borrower had a duty to impart correct information on Valentine regarding it dealings with brokers in connection with the sale of the Property. This information was within the peculiar knowledge of 74th Street Borrower, thereby creating a special relationship between Valentine and 74th Street Borrower. 47. At all times relevant to this Third-Party Complaint, James Rinzler exercised complete domination over 74th Street Borrower. James Rinzler caused 74th Street Borrower to impact information within his and 74th Street Borrower's peculiar knowledge regarding 30

33 his and 74t~' Street Borrowers dealings with brokers in connection with the Property. As such, James Rinzler had a special relationship with Valentine that imposed on him a duty to impart correct information. 48. Valentine reasonably relied on James Rinzler and 74t" Street Borrower for information that was within their peculiar knowledge. 49, In the event it is determined that 74th Street Borrower or James Rinzler dealt with Bid an the City, then the information James Rinzler caused 74th Street Borrower to give to Valentine was false and incorrect. 50. By reason of the foregoing, James Rinzler, as the alter ego of 74`n Street Borrower, is liable to Valentine in the amount of damages to be determined at trial, including but is not limited to, attorneys' fees, costs and expenses connection with defending against bid on the City's claims. WHEREFORE, Defendant Valentine demands judgment I. Dismissing the Amended Complaint in its entirety against Valentine and awarding costs and fees against Plaintiff Bid on the City. II. On the First Cross-claim against 74`h Street Borrower nullifying 74th Street Borrower's certificate of cancellation. III. On the Second Cross-claim against 74t" Street Borrower in the amount of damages to be determined at trial, including but not limited to, Valentine's attorneys' fees, costs and expenses in defending against Bid on the City's claims, as well as any damages or judgments entered against Valentine. 31

34 IV. On the Third Cross-claim against 74t" Street Borrower for the full and complete amount of Valentine's attorneys' fees, costs and expenses in defending against Bid on the City's, claims, as well as any damages or judgments entered against Valentine. V. On the Fourth Cross-claim against 74`x' Street Borrower the Prudential Defendants in the amount of damages to be determined by at trial, including but is not limited to, attorneys' fees, costs and expenses connection with defending against Bid on the City's claims. VI. On the Fifth Cross-claim against 74t~' Street Borrower and the Prudential Defendants in the amount of damages to be determined by at trial, including but is not limited ta, attorneys' fees, costs and expenses connection with defending against Bid on the City's claims. VII. On the First Cause. of Action in the Third-Party Complaint against James Rinzler in the amount of damages to be determined at trial, including but is not limited to, Valentine's attorneys' fees, costs and expenses in defending against Bid on the City's claims, as well as any damages or judgments entered against Valentine. VIII. On the Second Cause of Action in the Third-Party Complaint against James Rinzler for the full and complete amount of Valentine's attorneys' fees, costs and expenses in defending against Bid on the City's claims, as well as any damages or judgments entered against Valentine. IX. On the Third Cause of Action in the Third-Party Complaint against James Rinzler in the amount of damages to be determined by at trial, including but is not 32

35 limited ta, attorneys' fees, costs and expenses connection with defending against Bid on the City's claims. X. On the Fourth Cause of Action in the Third-Party Complaint against James Rinzler in the amount of damages to be determined by at trial, including but is not limited to, attorneys' fees; costs and expenses connection with defending against Bid on the City's claims XI. Awarding Valentine- such other and further relief as the Court deems just and proper. Dated: New York, New York September 7, 2012 GOLENBOCK EISEMAN A~SOR BELL & PESKOE LLP Ey: avid M. Rubin Ana-Claudia Roderick 437 Madison Avenue, 35th Floor New York, New York (212)