FILED: NEW YORK COUNTY CLERK 02/17/ :37 PM INDEX NO /2016 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/17/2017

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1 FILED NEW YORK COUNTY CLERK 02/17/ PM INDEX NO /2016 NYSCEF DOC. NO. 23 RECEIVED NYSCEF 02/17/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X M & E CHRISTOPHER LLC, Plaintiff, -against- JASON GODFREY and NELIDA GODFREY, Defendant. X Index No /2016 COMPLAINT Plaintiff, M & E Christopher LLC ( Plaintiff ), by its attorneys, Rosenberg & Estis, P.C., as and for its Complaint herein against defendants, Jason Godfrey and Nelida Godfrey (collectively, Defendants ), hereby alleges as follows A. The Parties 1. Plaintiff, M&E Christopher LLC, is a New York Limited Liability Company with its principle place of business located at 632 Broadway, 7 th Floor, New York, New York, Upon information and belief, Defendant, Jason Godfrey, is an individual residing in New York State, with an address at 254 West 15 th Street, #1-D New York, New York Upon information and belief, Defendant, Nelida Godfrey, is an individual residing in New York State, with an address at 110 Bedford Street, Apartment 1C, New York, New York B. The Lease and the Guaranty 4. Plaintiff is the owner and landlord of the building known as and located at 122 Christopher Street, New York, New York (the Building ). 5. Lima s Taste Ceviche Bar, Inc. ( Tenant ) was the tenant of a portion of the ground floor and basement in the Building (the Premises ) pursuant to the written lease RE\49424\0018\ v1 1 of 7

2 FILED NEW YORK COUNTY CLERK 02/17/ PM INDEX NO /2016 NYSCEF DOC. NO. 23 RECEIVED NYSCEF 02/17/2017 agreement, dated January 25, 2005, between Plaintiff, as landlord, and Tenant, as tenant, (the "Lease") 6. Pursuant to Articles 2 and 41 of the Lease, Tenant agreed to pay to Plaintiff rent and additional rent each month in advance on the first day of each month. Ex. A. 7. Article 19 of the Lease provides... if Plaintiff, in connection therewith or In connection with any default by Tenant in the covenant to pay rent hereunder, makes any expenditures or incurs any obligations for the payment of money, including but not limited to reasonable attorney's fees, in instituting, prosecuting or defending any actions or proceeding and prevails in any such action or proceeding, such sums so paid or obligations incurred with interest and costs shall be deemed to be additional rent hereunder and shall be paid by Tenant to Plaintiff within ten (10) days of rendition of any bill or statement to Tenant therefor, and if Tenant's lease term shall have expired at the time of making of such expenditures or incurring of such obligations, such sums shall be recoverable by Plaintiff as damages. 8. Defendants each executed a Personal Guaranty, dated January 25, 2005, (the "Guaranty") contemporaneously with the Lease. 9. The Guaranty states that it "is an absolute and unconditional Guaranty of payment and of performance" of Tenant's obligations under the Lease. See, the Guaranty, p Defendants, jointly and severally, personally guaranteed... to the Plaintiff, its successors and assigns, the full and prompt payment of Base Rent and additional rent...and any and all sums and charges payable by Tenant [andj... the full and timely performance and observance of all the covenants, terms, conditions and agreements of the Lease to be performed and observed by Tenant of 7

3 FILED NEW YORK COUNTY CLERK 02/17/ PM INDEX NO /2016 NYSCEF DOC. NO. 23 RECEIVED NYSCEF 02/17/2017 la. 11. Moreover, the Defendants agreed... if default shall at any time be made by Tenant, its successors and assigns, in the payment of Rent, or if Tenant should default in the performance and observance of any of the terms, covenants, provisions or conditions contained in the Lease, Guarantor shall and will forthwith pay such Rent to Plaintiff, its successors and assigns, and any arrears thereof, and shall and will forthwith faithfully perform and fulfill all of such terms, covenants, conditions and provisions and will forthwith pay to Plaintiff all damages that may arise in consequence of any default by Tenant, its successors and assigns, under the Lease, including without limitation, all reasonable attorneys' fees and disbursements and all other costs and expenses incurred by Plaintiff or caused by any such default and/or by the enforcement of this Guaranty and/or in any action or proceeding arising out of, or relating to this Guaranty. Id. C. Tenant Fails to Pav Rent 12. In or about May, 2013, Tenant stopped paying its rent obligations under the Lease, although Tenant remained in possession of the Premises. 13. Plaintiff demanded all outstanding rent in arrears from Tenant by serving a statutory written three (3) day demand (the"rent Demand") 14. Tenant failed to remit payment of the outstanding amounts after service of the Rent Demand. D. Plaintiff Commences allon-payment Proceeding 15. In or about December, 2015, Plaintiff commenced a summary nonpayment proceeding in the Civil Court of the City of New York against Tenant, entitled M & E RE\49424\0018~ v of 7

4 FILED NEW YORK COUNTY CLERK 02/17/ PM INDEX NO /2016 NYSCEF DOC. NO. 23 RECEIVED NYSCEF 02/17/2017 Christopher LLC v. Lima's Taste Ceviche Bar, Inc., L&T Index No /15 (the "Non- Payment Proceeding"), to recover the rent demanded in the Rent Demand. 11, Proceeding. 16. Atrial was held in the Non-Payment Proceeding on March 10, 2016 and March 17. Defendant, Nelida Godfrey, was present for the trial of the Non-Payment Payment Proceeding. 19. By Decision and Order dated April 12, 2016 (Cannataro, J.), the Civil Court awarded Plaintiff a judgment of possession and a monetary judgment in the amount of $437, (the "Money Judgment") 20. The Money Judgment is final and non-appealable. 21. On June 7, 2016, Tenant, by its president, defendant Nelida Godfrey, stipulated to the entry of a money judgment in the amount of $35, (the "Attorneys' Fees Judgment") representing attorneys' fees, costs and disbursements incurred by Plaintiff for the Non-Payment Proceeding. 22. The Attorneys' Fees Judgment was entered on consent and is, therefore, final and non-appealable. 23. To date, neither Tenant nor Defendants have submitted any payment for the Money Judgment or the Attorneys' Fees Judgment (collectively, the "Judgments"). E. Defendants are Liable for the Full Amount of the Judgments, Post-Judgment Interest and Attorneys' Fees Judgments. 24. Tenant is liable to Plaintiff in the amount of $472, by virtue of the RE\49424\0018~ v1 18. Defendant, Nelida Goldfrey, testified on behalf of Tenant at the trial of the Non of 7

5 FILED NEW YORK COUNTY CLERK 02/17/ PM INDEX NO /2016 NYSCEF DOC. NO. 23 RECEIVED NYSCEF 02/17/ CPLR 5003 provides that all judgments shall accrue interest from the date of entry, and CPLR 5004 sets the interest rate at nine percent per annum. 26. The Money Judgment was entered on April 12, 2016, 311 days prior to the date of this complaint. 27. As such, statutory interest in the amount of $33, has accrued on the Money Judgment through the date hereof. 28. Statutory interest will continue to accrue on the Money Judgment through the date of payment by Tenant and/or Defendants. 29. The Attorneys' Fees Judgment was entered on June 7, 2016, 254 days before the date of this complaint. 30. As such, statutory interest in the amount of $2, has accrued on the Attorneys' Fees Judgment through the date hereof. 31. Statutory interest will continue to accrue on the Attorneys' Fees Judgment through the date of payment by Tenant and/or Defendants. 32. To date, interest in the amount of $35, has accrued on the Judgments. 33. Statutory interest will continue to accrue on the Judgments through the date of payment by Tenant and/or Defendants. 34. Tenant's liability for the full amount of the Judgments, statutory interest, and attorneys' fees arises directly from Tenant's obligations pursuant to the Lease. 35. The Guaranty unequivocally establishes Defendants' unconditional liability for Tenant's obligations pursuant to the Lease. 36. Liability against Tenant in the amount of $472, was established by virtue of the Judgments of 7

6 FILED NEW YORK COUNTY CLERK 02/17/ PM INDEX NO /2016 NYSCEF DOC. NO. 23 RECEIVED NYSCEF 02/17/ To date, Tenant and/or Defendants are liable to Plaintiff in the total amount of $508, for the Judgments and post judgment interest. 38. Plaintiff has incurred attorneys' fees and disbursements and other costs and expenses due to its enforcement of the Guaranty in bringing this action. 39. Pursuant to the Guaranty, Plaintiff may recover reasonable attorneys' fees and disbursements and all other costs and expenses incurred by Plaintiff or caused by any such default andlor by the enforcement of the Guaranty and/or in any action or proceeding arising out of, or relating to the Guaranty AS AND FOR A FIRST CAUSE OF ACTION (Breach of Guaranty) 40. Plaintiff repeats all prior allegations. 41. Plaintiff has been damaged by Tenant's failure to remit payment in the full amount of the Judgments. 42. In breach of the Guaranty, Defendants have failed to satisfy all covenants, terms, conditions and agreements of the Lease to be performed and observed by Tenant, which covenants, terms and agreements include satisfaction of the full amount of the Judgments. 43. By reason of Defendants' failure, statutory interest in the amount of $35, has accrued on the Judgments through the date hereof. 44. Based upon the foregoing, Defendants have caused Plaintiff to sustain damages in the amount of $508, through the date hereof, with interest thereon continuing to accrue. AS AND FOR A SECOND CAUSE OF ACTION (Attorneys' Fees) 45. Plaintiff repeats all prior allegations. 46. Pursuant to the Guaranty, Plaintiff may recover reasonable attorneys' fees and disbursements and all other costs and expenses incurred by Plaintiff or caused by any such -6-6 of 7

7 FILED NEW YORK COUNTY CLERK 02/17/ PM INDEX NO /2016 NYSCEF DOC. NO. 23 RECEIVED NYSCEF 02/17/2017 default and/or by the enforcement of the Guaranty and/or in any action or proceeding arising out of, or relating to the Guaranty 47. Plaintiff has incurred and will continue to incur reasonable attorneys' fees and all costs and expenses in enforcing the Guaranty. 48. By reason of the foregoing, Plaintiff is entitled to its reasonable attorneys' fees, costs and expenses incurred in this Action, in an amount to be determined after a hearing, or upon the submission of affidavits, but not less than $50, WHEREFORE, Plaintiff demands judgment against Tenants as follows A. On the first cause of action, actual damages in the amount of $508, through the date hereof, plus statutory interest, the full amount of which shall be established at trial; C. On the second cause of action, reasonable attorneys' fees, costs and expenses, in an amount to be determined after a hearing, or upon the submission of affidavits, but not less than $50,000. D. For such other and further relief as this Court deems just and proper. Dated New York, New York ROSENBERG & ESTIS, P.C. February 17, 2017 Attorneys for Plaintiff By Deborah Riegel 733 Third Avenue New York, New York (212) of 7