FILED: NEW YORK COUNTY CLERK 06:29 PM INDEX NO. 153910/2017 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: EXHIBIT 1
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------x CGM-LLNR LLC, d/b/a ASIA DE CUBA, a Restaurant, Plaintiff, -against- THE SYLVIA WARD AND PO KIM ART GALLERY, SUMMONS Index No.: Date filed: 04/28/17 Basis of venue is: Situs of subject property Defendant. ---------------------------------------------------------------------x TO THE ABOVE-NAMED DEFENDANT(S): YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve a copy of your Answer, or, if the Complaint is not served with a Summons, to serve a notice of appearance, on plaintiff s attorney within 20 days after service of the Summons, exclusive of the day of service (or within 30 days after service is complete if the Summons was not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. Dated: New York, New York Yours, etc., April 27, 2017 KLEIN SLOWIK PLLC By: CHRISTOPHER M. SLOWIK, Esq. Attorneys for Plaintiff 90 Broad Street, Suite 602 New York, New York 10004 (212) 564-7560 TO: The Sylvia Ward and Po Kim Art Gallery 417 Lafayette Street New York, New York 10003 1 of 19
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------x CGM-LLNR LLC, d/b/a ASIA DE CUBA, a Restaurant, Plaintiff, VERIFIED COMPLAINT Index No.: -against- THE SYLVIA WARD AND PO KIM ART GALLERY, Defendant. ---------------------------------------------------------------------x Plaintiff CGM-LLNR LLC, d/b/a ASIA DE CUBA, by and through its attorney, KLEIN SLOWIK PLLC, complains of Defendant, THE SYLVIA WARD AND PO KIM ART GALLERY ( Defendant ), and alleges as follows: THE PARTIES 1. At all times hereinafter mentioned, Plaintiff CGM-LLNR LLC is a domestic limited liability company, duly organized and existing under the laws of the State of New York, with a principal place of business located in the County of New York, State of New York. 2. Upon information and belief and at all times hereinafter mentioned, Defendant THE SYLVIA WARD AND PO KIM ART GALLERY is a non-stock education corporation duly organized and existing under the laws of the State of New York, with a principal place of business located in the County of New York, State of New York. VENUE 3. Venue is proper under CPLR 503 because the premises giving rise to Plaintiff s cause of action is located in the County of New York, State of New York. 2 of 19
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 FACTS 4. Plaintiff is a commercial tenant at 415 Lafayette Street, New York, New York 10003 (Block 544, Lot 11) ( 415 Lafayette ). 5. Pursuant to a lease dated January 1, 2014 ( the Lease ), Plaintiff possesses a leasehold of seven years duration to operate a restaurant in the ground-floor commercial space at 415 Lafayette; and operates a luxe restaurant thereat under the business name Asia de Cuba ( the Restaurant ). 6. Asia de Cuba is a world-renowned group of fine restaurants, with locations in London, Abu Dhabi, and Bahrain, in addition to the 415 Lafayette location discussed herein. See www.asiadecuba.com (last accessed April 19, 2017). 7. Defendant is the record owner of the property located at 417 Lafayette Street, New York, New York 10003 (Block 544, Lot 12) ( Defendant s Property ). 8. Defendant s Property is adjacent to 415 Lafayette, directly to the north thereof along the eastern side of Lafayette Street. 9. On or about April 16, 2014, the New York City Department of Buildings ( DOB ) issued the Defendant a violation, Notice of Violation No. 36018784R, for failing to file a report regarding the condition of the façade of its building, which report is required to be filed once during a three-year cycle by the New York City Construction Codes (a subset of the Administrative Code) and the Rules of the City of New York. DOB served this violation upon Defendant on or about June 11, 2014. 10. Defendant had been required at law to file the façade report during the time period February 21, 2010 to February 21, 2013; it was thus more than a year tardy in meeting this obligation. 2 3 of 19
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 11. On July 2, 2014, Defendant filed its façade report and designated the façade as unsafe, as per New York City Construction Code 28-302.3 and 1 RCNY 103-04. Defendant was fined $7,250.00 for its delay in filing the report. 12. On or about July 17, 2014, DOB issued another violation to Defendant, Notice of Violation No. 35095165K, for failure to erect scaffolding, as required as the first step towards repair of the unsafe condition. 13. Although protective scaffolding must be temporarily erected upon report of an unsafe façade condition, New York City Building Code 28-302.5 and 1 RCNY 103-04(b)(5)(ii) require a building owner reporting an unsafe façade condition to remediate same within thirty days, and then to file a new report attesting to the repairs, upon the acceptance of which the scaffolding is to be promptly taken down. 14. Defendant did not apply to DOB for a permit to erect scaffolding to address the façade violations until September 12, 2014. 15. Defendant did not erect the scaffolding, i.e the, Encroaching Structures until on or about April 20, 2015 almost a year after it received its first violation for failing to submit a façade report, and six months after DOB approved its application for a permit for scaffolding. 16. Defendant did not seek or obtain permission from Plaintiff, or even consult with Plaintiff, before erecting the Encroaching Structures. 17. The Encroaching Structures extend from 419 Lafayette Street (the property directly north of Defendant s Property), across the entire frontage of Defendant s Property at 417 Lafayette Street, and for a distance of twenty feet over the property line onto 415 Lafayette, where Plaintiff possesses its leasehold and operates the Restaurant. 18. The Encroaching Structures overhang the front of the space leased by Plaintiff at 415 Lafayette, in which it operates the Restaurant. 3 4 of 19
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 19. The Encroaching Structures prevent the Restaurant from maintaining a sidewalk café on the sidewalk in front of the Restaurant, for which the Restaurant may obtain a permit from the New York City Department of Consumer Affairs. 20. Plaintiff s sidewalk café space would comprise twenty-two seats, so that inability to maintain the café due to the Encroaching Structures has caused Plaintiff to suffer lost income, and will continue to do so. 21. New York City Building Code 3307.6.2 provides that scaffolds, such as the Encroaching Structures, shall not unreasonably obstruct either visually or physically, entrances, egress, driveways and windows of adjacent properties. 22. Defendant s Encroaching Structures unreasonably obstruct the façade, door, and windows of the Restaurant, both visually and physically, making the Restaurant difficult or impossible to see from the street. 23. The Encroaching Structures also cast shadow over the front of the Restaurant, creating an ominous and foreboding atmosphere, and the impression that the area under the scaffold might not be safe, which discourages potential patrons, especially at night. 24. The Encroaching Structures block light and air from Lafayette Street from reaching the Restaurant, and vice versa. 25. The Encroaching Structures block and hinder access from the Restaurant to Lafayette Street, and vice versa. 26. There has been no work at Defendant s Property to remedy the façade condition since Defendant was noticed in June, 2014 almost three years ago - with a violation for its own failure to timely submit its façade report; and since Defendant belatedly erected its scaffold in April, 2015 two years ago supposedly to make façade repairs. 4 5 of 19
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 27. The Encroaching Structures have damaged Plaintiff s income, in that they hinder the Restaurant s ability to attract customers, as the Encroaching Structures cover the frontage of the Restaurant, obscure the Restaurant from view, make it less attractive as a dining destination, and give the impression to the public that the Restaurant is closed. 28. Defendant s maintenance of the Encroaching Structures on the property of 415 Lafayette has damaged Plaintiff s income, in that the Encroaching Structures prohibited the Restaurant from maintaining a sidewalk café during the outdoor dining seasons of 2015 and 2016 leading to losses in each of those years of well over $350,000 (three hundred fifty thousand dollars) per year in incremental revenue and continues to prohibit same, leading into the outdoor dining season of 2017. 29. Defendant has unreasonably delayed in repairing its façade for two years, contrary to law, and has left the Encroaching Structures in place for that time, without permission from Plaintiff or justification at law therefor. 30. From the time that the Encroaching Structures were first erected, Plaintiff made repeated efforts to contact Defendant and its representatives to demand that Defendant promptly complete its work, as required by law. 31. Plaintiff made dozens, if not hundreds, of demands and inquiries over the twoplus years between erection of the Encroaching Structures and the filing of the within action. 32. Defendant was either completely unresponsive, or offered a series of weak and unpersuasive excuses. 33. After several months of not responding to Plaintiffs inquires, Defendant volunteered that it required access to the roof of 415 Lafayette in order to repair its façade. 34. In March, 2016, Only Properties, LLC, the owner of 415 Lafayette ( Plaintiff s Landlord ), promptly offered to grant Defendant a license to enter for that purpose upon 5 6 of 19
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 provision of basic, commercially reasonable documentation, such as its proposed plans for the repair, its protection plan for the building at 415 Lafayette, and schedules for the work. 35. Defendant was unresponsive to this simple request for several months. 36. Defendant eventually offered the excuse that DOB was preventing it from moving forward due to an older violation for an unrelated condition. 37. Plaintiff hired a construction consultant to investigate, and found that any delay was due to Defendant s neglect or refusal to certify correction of said older violation and to pay the fine for it. to this day. 38. Defendant has continued its pattern of delay, weak excuses, and unresponsiveness 39. Plaintiff s business has accordingly suffered great harm, as set forth herein, and Plaintiff maintains the within action to seek appropriate relief. 40. Plaintiff has invested well over $5 million in developing the Restaurant, but Defendants continued maintenance of the Encroaching Structures threatens this investment, causes the Plaintiff to bleed revenue, wastes the time and energy of Plaintiff s executives, and jeopardizes the worldwide reputation of Plaintiff s highly regarded Asia de Cuba Brand (the Brand ). FIRST CAUSE OF ACTION Nuisance 41. Plaintiff repeats and realleges each and every allegation as stated in paragraphs 1 through 40 as if fully set forth in its entirety herein. 42. Defendant has created an interference with Plaintiff s property right to use, enjoy, and exploit Plaintiff s leasehold for the Restaurant. 6 7 of 19
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 43. Said interference is substantial, in that maintenance of the Encroaching Structures by Defendant prevents Plaintiff from maintaining a sidewalk café, with an additional twenty-two seats of paying customers, in front of the Restaurant; blocks passers-by from seeing that there is an open restaurant at the premises; makes the area in front of the Restaurant seem dangerous; and hinders the flow of light, air, persons, and goods between the building and the street. 44. Said interference is intentional, as willfully installed and maintained by Defendant, and without regard for Plaintiff s repeated requests to Defendant to abate or remediate same, for more than two years. 45. Said interference is unreasonable, as serving no discernible end, either in connection with any repair work at Defendant s Property (which is not happening and has not happened) or for any other purpose, yet serving to disrupt Plaintiff s business and dissuade and detract its customers. 46. Plaintiff is damaged by the nuisance, in that the Encroaching Structures prohibit the Restaurant from maintaining a twenty-two-seat sidewalk café, and also decrease traffic to the Restaurant and diminish the desirability of the Restaurant as a fine dining destination all of which has caused the Restaurant to lose customers and money, and will continue to do so. 47. As a result of the foregoing, Defendant is the proximate cause of, and has committed great harm and injury to the Plaintiff, the Restaurant, and the Brand in an amount to be determined by this Court, but no less than Ten Million Dollars ($10,000,000.00). SECOND CAUSE OF ACTION Trespass 48. Plaintiff repeats and realleges every allegation as stated in Paragraphs 1 through 47 as if fully set forth herein. 49. The Encroaching Structures were erected intentionally by Defendant. 7 8 of 19
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 50. The Encroaching Structures physically interfere with Plaintiff s possession and enjoyment of its leasehold, as the Encroaching Structures inhabit space that would otherwise be occupied by Plaintiff s sidewalk café. 51. The Encroaching Structures further interfere physically with Plaintiff s possession and enjoyment of its leasehold, as they stand in front of the façade, windows, and doors of the Restaurant, blocking the light and air from Lafayette Street, access between the Restaurant and Lafayette Street, and the view of Lafayette Street from the Restaurant, to all of which Plaintiff has an easement at common law. 52. By reason of said Encroaching Structures, Plaintiff has been, and will continue to be, deprived of the full use and enjoyment of Plaintiff s leasehold. 53. As a result of the Defendant s willful and continued trespass, the Defendant has actually and materially depriving Plaintiff from the full enjoyment and exclusive use of Plaintiff s leasehold at the times set forth herein. 54. Plaintiff will continue to be damaged by the Defendant s conduct until the Defendant removes the Encroaching Structures. 55. As a result of the foregoing, the Defendant is the proximate cause of, and has committed great harm and injury to the Plaintiff, the Restaurant and the Brand, in an amount to be determined by the Court, but no less than Ten Million Dollars ($10,000,000.00). THIRD CAUSE OF ACTION Conversion 56. Plaintiff repeats and realleges each and every allegation as stated in Paragraphs 1 through 55 as if fully set forth herein. 57. Defendant has exercised dominion and control of the Restaurant without Plaintiff s permission. 8 9 of 19
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 58. Defendant has seized without lawful authority the actual possession of a portion of the Restaurant. 59. Defendant has harmed, and continues to harm, Plaintiff s rights with respect to Plaintiff s possessory interest in its leasehold. 60. As a result of Defendant s conversion of a portion of Plaintiff s leasehold, Plaintiff has been harmed in an amount to be determined by this Court, but no less than Ten Million Dollars ($10,000,000.00). FOURTH CAUSE OF ACTION Tortious Interference with Prospective Business Relations 61. Plaintiff repeats and realleges each and every allegation as stated in Paragraphs 1 through 60 as if fully set forth herein. 62. Plaintiff regularly maintains prospective business relations with third parties, e.g. prospective patrons of the Restaurant, including repeat patrons. 63. Defendant has interfered with those prospective business relations, by maintaining the Encroaching Structures, which conceal the view of the Restaurant from the street, thus preventing prospective patrons from knowing that there is a restaurant on the premises, and/or creating the impression that it is closed, and/or lessening the appeal of the Restaurant as a destination for fine dining; and by reducing the seating capacity of the Restaurant, and therefore its income, by preventing Plaintiff from maintaining its lawfully permitted sidewalk café. 64. Defendant used wrongful means to interfere with Plaintiff s prospective business relations, in that it maintained the Encroaching Structures on Plaintiff s leasehold during the times set forth herein, for no useful purpose whatsoever. 9 10 of 19
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 65. Defendant harmed Plaintiff s prospective business relationships, by driving prospective patrons away from the Restaurant and by reducing the seating capacity of the Restaurant. 66. As a result of the foregoing, the Defendant is the proximate cause of, and has committed great harm and injury to the Plaintiff, the Restaurant and the Brand, in an amount to be determined by the Court, but no less than Ten Million Dollars ($10,000,000.00). FIFTH CAUSE OF ACTION Real Property Actions and Proceedings Law 871 67. Plaintiff repeats and realleges each and every allegation as stated in Paragraphs 1 through 65 as if fully set forth herein. 68. Real Property Actions and Proceedings Law ( RPAPL ) 871, action for the removal of encroaching structures, provides for the following: An action may be maintained by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land. Nothing herein contained shall be construed as limiting the power of the court in such an action to award damages in an appropriate case in lieu of an injunction or to render such other judgment as the facts may justify. 69. Plaintiff, as holder of the Lease, possessor of a leasehold pursuant thereto, and tenant in possession of the ground-floor space at 415 Lafayette, is an owner of a legal estate in land, as contemplated by RPAPL 871. 70. The Encroaching Structures discussed above are a structure encroaching on such land pursuant to RPAPL 871 and therefore an action may be maintained seeking a directive requiring removal of the Encroaching Structures. 71. Defendant has maintained the Encroaching Structures unlawfully, as they were ostensibly erected to enable Defendant to repair its facade, but Defendant has refused, neglected, or failed to do so. 10 11 of 19
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 72. The Encroaching Structures have deprived Plaintiff of the full value, use and enjoyment of its leasehold, and will continue to so deprive Plaintiff of same. 73. The injuries complained of are persisting and continuous, and unless abated Plaintiff will suffer irreparable injury, which injury will be continued, and that to obtain redress at law the Plaintiff necessarily will be involved in continued and interminable litigation with the Defendant, and will suffer continuing injuries for which damages or final order in successive actions at law will not necessarily afford an adequate remedy. 74. Accordingly, based upon Defendant s actions as set forth herein, this Court should issue an injunction pursuant to RPAPL 871 directing the removal of the Encroaching Structures. 75. Furthermore, based upon Defendants actions discussed above, the conduct of Defendants was intentional, illegal, wanton, willful and malicious. 76. As a result of Defendants illegal activities, and knowing and intentional disregard for Plaintiff s rights, Plaintiff are entitled to punitive damages in an amount to be determined by the Court. 77. Plaintiff therefore prays that this Court Grant Plaintiff a mandatory injunction requiring the Defendant and the Defendant s employees/agents to remove that portion of the Encroaching Structures that encroaches upon the Plaintiff s property. 78. Furthermore, the Court should award damages in the form of a license fee, nunc pro tunc, to the date of encroachment through the date of removal, in an amount believed to be no less than in an amount to be determined at trial, though not less than Ten Million ($10,000,000.00) Dollars. 11 12 of 19
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 SIXTH CAUSE OF ACTION Declaratory Judgment 79. Plaintiff repeats and realleges each and every allegation as stated in Paragraphs 1 through 78 as if fully set forth herein. 80. Defendant has ostensibly erected and maintained the Encroaching Structures in accordance with and compliance with the New York City Building Code, so as, again ostensibly, to repair its building. 81. However, Defendant has neglected to do any construction or repair work; yet has continued to maintain the Encroaching Structures on Plaintiff s leasehold. 82. Plaintiff has told Defendant that it lacks a basis at law to maintain the Encroaching Structures on its property for no reason, but Defendant has refused to remove the Encroaching Structures. 83. By reason therefor, a justiciable controversy thus exists between the parties. 84. Plaintiff lacks a remedy at law, other than a declaratory judgment action, to compel Defendant to recognize that it is unlawful to maintain the Encroaching Structures if it declines, neglects and refuses to perform the construction work for which they were ostensibly erected. 85. Plaintiff therefore prays that this Court issue a judgment declaring it to be unlawful for Defendant to maintain the Encroaching Structures unless it is actively making repairs. SEVENTH CAUSE OF ACTION Negligence and Punitive Damages 86. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 85 above as though more fully set forth at length herein. 12 13 of 19
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 87. Defendants have unlawfully and impermissibly encroached on Plaintiff s Property as a result of the erection of the Encroaching Structures in violation of the New York City Building Code 3309.1.1: Notification, which states in pertinent part: Where a construction or demolition project will require access to adjoining property in accordance with this section, written notification shall be provided to the adjoining property owner at least 60 calendar days prior to the commencement of work. Such notification shall describe the nature of work, estimated schedule and duration, details of inspections or monitoring to be performed on the adjoining property, protection to be installed on the adjoining property, and contact information for the project. 88. Defendant did not provide the 60-day notice required by this section to Plaintiff or Plaintiff s Landlord; rather, it erected the Encroaching Structures on Plaintiff s leasehold without notice or permission. 89. Defendant did not provide Plaintiff or Plaintiff s Landlord with notice of the nature of work, estimated schedule and duration, details of inspections or monitoring, protection to be installed, or contact information, as required by this section. 90. In fact, over the two years during which Defendant s ostensible repair project has lay dormant, and during which the Encroaching Structures have been maintained on Plaintiff s leasehold, to no discernible purpose of Defendant s but in derogation of Plaintiff s leasehold and business prospects, as set forth herein, Plaintiff has made multiple demands of Defendant for the information which Defendant must provide, pursuant to this section. 91. Defendant has failed, neglected, and refused to provide this information. 92. In violating the Building Code in the manner set forth above, which Building Code is a subset of the New York City Administrative Code, Defendant has violated ordinances of the City of New York. 93. Violations of city ordinances constitute per se evidence of negligence. 13 14 of 19
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 94. Defendant had a duty to Plaintiff to erect and maintain scaffolds so as to mitigate and minimize harm to Plaintiff s business and interference with Plaintiff s enjoyment of its leasehold. 95. Defendant breached that duty by erecting the Encroaching Structures in a manner which harmed Plaintiff s business and interfered with Plaintiff s enjoyment of its leasehold by, inter alia, obscuring the Restaurant from view, hindering the passage of light and air between the Restaurant and Lafayette Street, hindering access to and from the Restaurant, and preventing Plaintiff from maintaining a sidewalk café. 96. Defendant breached that duty by erecting the Encroaching Structures before they were to be used, and by then failing to complete repairs expeditiously so that they could be removed. 97. Defendant has a duty to follow and abide by the Administrative Code. 98. Defendants have breached said duty by failing to provide Plaintiff with the notices required by Building Code 3309.1.1. 99. As a result of Defendants willful breach of the Administrative Code, Defendants caused Plaintiff to be damaged, by severely limiting their use and enjoyment of its leasehold, in the manners set forth above, in an amount to be determined at trial, though not less than Ten Million ($10,000,000.00) Dollars. 100. Furthermore, the conduct of Defendants was intentional, illegal, wanton, willful and malicious. 101. As a result of Defendants illegal activities, and knowing and intentional disregard for Plaintiff s rights, Plaintiff is entitled to punitive damages in an amount to be determined by the Court, but no less than Ten Million Dollars ($10,000,000.00). 14 15 of 19
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 EIGHTH CAUSE OF ACTION Prima Facie Tort 102. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 101 above as though more fully set forth at length herein. 103. The Encroaching Structures referred to herein were erected intentionally by Defendant. 104. Defendant s actions have created an interference with Plaintiff s ability to use their leasehold and occupy the premises with its restaurant. 105. Said interference is intentional, since the Encroaching Structures were willfully installed and maintained by Defendant for more than two years, without regard to Plaintiff s requests to remediate same. 106. Defendant s actions have caused Plaintiff to sustain special damages in the form of loss of profits, loss of business opportunities, loss of business property, loss of operating revenue, and damage to business reputation. 107. Said interference has been caused by Defendant without justification or excuse and serves no reasonable or discernible end on Defendant s behalf, who has not conducted or performed any construction at Defendant s property since the Encroaching Structures were erected on or about April 20, 2015. 108. Defendant has ostensibly erected and maintained the Encroaching Structures in accordance with and compliance with the New York City Building Code, so as ostensibly to repair its building, which it has failed, neglected, or refused to do. 15 16 of 19
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 109. As a result of the foregoing, the Defendant is the proximate cause of, and has committed great harm and injury to the Plaintiff, the Restaurant and the Brand, in an amount to be determined by this Court but no less than Ten Million dollars ($10,000,000.00). WHEREFORE, Plaintiff respectfully prays for a judgment: a) On Plaintiff s First Cause of Action, nuisance, a judgment and order in an amount to be determined by this Court, but no less than Ten Million ($10,000,000.00) Dollars plus interest and costs, including attorneys fees; and b) On Plaintiff s Second Cause of Action, trespass, a judgment and order in an amount to be determined by this Court, but no less than Ten Million ($10,000,000.00) Dollars, plus interests and costs, including attorneys fees; and c) On Plaintiff s Third Cause of Action, conversion, a judgment and order in an amount to be determined by this Court, plus interest and costs, including attorneys fees; and d) On Plaintiff s Fourth Cause of Action, tortious interference with prospective business relations, a judgment and order in an amount to be determined by this Court, but no less than Ten Million ($10,000,000.00) Dollars, plus interests and costs, including attorneys fees; and e) On Plaintiff s Fifth Cause of Action, Real Property Actions and Proceedings Law 871, a mandatory injunction requiring the Defendant and the Defendant s employees/agents to remove that portion of the Encroaching Structures that encroaches upon the Plaintiff s leasehold, and damages in the form of a license fee, nunc pro tunc, to the date of encroachment through the date of removal, in an amount to be determined at trial, though not less than Ten Million ($10,000,000.00) Dollars, plus interests and costs, including attorneys fees; and f) On Plaintiff s Sixth Cause of Action, a judgment declaring it to be unlawful for Defendant to maintain the Encroaching Structures on Plaintiff s leasehold unless it is actively conducting repairs; and g) On Plaintiff s Seventh Cause of Action, negligence, a judgment and order in an amount to be determined by this Court, but no less than Ten Million ($10,000,000.00) Dollars plus interest and costs, including attorneys fees, plus punitive damages; and h) On Plaintiff s Eighth Cause of Action, prima facie tort, a judgment and order in an amount to be determined by this Court, but no less than Ten Million ($10,000,000.00) Dollars plus interest and costs, including attorneys fees, plus punitive damages; and i) For such other and further relief as the Court deems just and proper. 16 17 of 19
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 Dated: New York, New York Yours, etc. April 27, 2017 KLEIN SLOWIK PLLC By: CHRISTOPHER M. SLOWIK, ESQ. Attorneys for Plaintiff 90 Broad Street, Suite 602 New York, New York 10004 (212) 564-7560 cslowik@buildinglawnyc.com 17 18 of 19
FILED: NEW YORK COUNTY CLERK 04/28/2017 02:28 06:29 AM PM INDEX NO. 153910/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------x CGM-LLNR LLC, d/b/a ASIA DE CUBA, a Restaurant, VERIFICATION Plaintiff, -against- THE SYLVIA WARD AND PO KIM ART GALLERY, Defendant. ---------------------------------------------------------------------x STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) COBI LEVY, being duly sworn, deposes and says: I am a Manager of China Grill Management, which is Manager of PlaintiffCGM-LLNR LLC in the above-captioned action. I have read the foregoing complaint and know the contents thereof; that the same are true to the best of my knowledge, except as to matters therein stated to be upon information and belief, and as to those matters, I believe them to be true. The grounds of my belief are personal knowledge and based upon my review of documents, books and records maintained by me individually and by Plaintiff. Sworn to before me this 21-'h day of Afr~\, 2017. Notary Public.. ', HAKEEM A QASIM Notary Public State of New York NO. 01 OA6338889 Qualified in Queens County My Commission Expires Mar 21, 2020 19 of 19