SUl)REME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------- -----------X 88 THIRD REALTY, LLC, Index No.153632/2016 Plaintiff, -against- AFFIRMATION IN SUPPORT BARRY STANLEY, CHANEL H. EDWARDS and IGNG STREET CONSTRUCTION LLC. Plaintiffs. -----------------------------------------------------------------X â â â â â ---- â â --- â -- â â â JONATHAN Z. MINIKES, an attorney duly admitted to practice before the courts of the State of New York, hereby affirms under the penalty of perjury and pursuant to CPLR 2106 as follows: 1. I am a member of the law firm of Cutler Minikes 2 Adelman, LLP, attorneys for Plaintiff 88 Third Realty, LLC (hereinafter "Plaintiff") and, as such, I am fully familiar with the facts and circumstances as set forth herein. 2. I respectfully submit this affirmation in support of Plaintiff's motion for an'order, pursuant to CPLR 4403, confirming the recommendations of Special Referee J.H.O. Ira Gammerman, filed in the Office of the Clerk of New York County on March 9, 2018 and April 17, 2018, to the extent that Judge Gammerman recommended that Plaintiff be awarded (a) the sum of $266,046.01 as and for fixed rent and additional rent (on the second cause of action) and (b) the sum of $63,850.00 as and for attorneys' fees (on the first and third causes of action). FACTUAL AND PROCEDURAL BACKGROUND 3..The within action was commenced in April, 2016 against Defendant King Street (" Construction LLC ("King Street" (" Stanley" Street"), Defendant Barry Stanley ("Stanley") and Defendant Chanel Edwards ("Edwards" "Defendants" and collectively, "Defendants"), seeking, inter alia, (a) legal fees incurred (" Proceeding" in a prior summary eviction proceeding Summary ) brought by Plaintiff against 1 of 8
Defendant King Street, as well as ensuing Appellate Term motion practice relating to the Summary Proceeding (first cause of action), (b) fixed rent and additional rent due pursuant to the Lease (second cause of action) and (c) legal fees incurred in the within action (third cause of action). A copy of the Summons and Complaint is annexed hereto as Exhibit "A". 4. On or about October 2, 2016, Defendants interposed an answer containing three affirmative defenses and a counterclaim. A copy of the Answer is annexed hereto as Exhibit "B". 5. By Notice of Motion dated January 12, 2017, Plaintiff moved for summary judgment on its first through third causes of action as well as dismissal of defenses and counterclaim. 6. On or about February 1, 2017, Plaintiff's motion was adjourned at request from February 2, 2017 to February 21, 2017. However, Defendants failed to submit any opposition papers. By Decision and Order dated March 6, 2017, Plaintiff's motion was granted on default. 7. On or about March 21, 2017, counsel contacted this office seeking to vacate the default order and restore the matter to the calendar, to which Plaintiff agreed. By Stipulation dated March 22, 2017, the default order was vacated and the matter was restored to the Court's calendar, returnable April 14, 2017. 8. On March 28, 2017, Defendants submitted opposition to Plaintiff's motion and on April 14, 2017,.Plaintiff submitted its reply to opposition. 9. On June 14, 2017, this Court heard oral argument of Plaintiff's motion and reserved decision. 2 of 8
10. By Decision and Order dated July 14, 2017, this Court granted Plaintiff's motion for summary judgment in its entirety. The Court directed Plaintiff to serve a copy of the July 14, 2017 Order with Notice of Entry upon Defendants and upon the Clerk of the Trial Support Office and Special Referee Clerk to, (a) schedule an inquest on damages to determine whether Plaintiff was entitled to the full amount of $34,326.73 for attorney's fees in the Summary Proceeding and (b) for a hearing to determine the amount of fixed rent and additional rent and reasonable 14,' attorney's fees due in the within action. A copy of the July 14, 2017 Order is annexed hereto as Exhibit "C". PLAINTIFF'S MOTION TO CONFIRM JUDGE GAMMERMAN'S RECOMMENDATION MUST BE GRANTED 11. The hearing was initially scheduled for October 4, 2017. However, on or about October 2, 2017, counsel submitted an affirmation of actual engagement claiming that he was engaged in a trial that was expected to last "five or six weeks". On October 4, 2017, the hearing was adjourned by the Court to November 2, 2017. 12. On or about November 1, 2017, second' counsel submitted a second of actual engagement, claiming that he remained engaged in the same trial, and that he expected that the trial would continue through November 2017. The hearing was then adjourned by the Court to December 7, 2017. 13. By order to show cause dated December 5, 2017, counsel moved to be relieved as counsel as to Defendant Stanley and Defendant King Street and sought a stay of the hearing pending a decision on said motion. Neither Plaintiff nor Defendants King Street and Stanley opposed the motion. On December 7, 2017, the hearing was adjourned by the Court to January 3, 2018. 3 of 8
14. By Decision and Order dated December 20, 2017, the Court granted counsel's motion to withdraw as counsel as to King Street and Stanley, and further held that there would be no more stays of the hearing. A copy of the December 20, 2017 Order is annexed hereto as Exhibit "D". 15. On January 3, 2018, the matter was referred to Special Referee J.H.O. Joseph Burke. However, Defendant Edwards' counsel made another application for an adjournment, claiming that he had discovered a new mailing address for Defendants Kiñg Street and Stanley. The Court granted counsel's application and the hearing was adjourned to January 16, 2018. 16. On January 16, 2018, the parties appeared for a hearing before the Special Referee J.H.O. Ira Gammerman and the hearing ensued. A copy of the transcript of the January 16, 2018 hearing is annexed hereto as Exhibit "E". 17. During the hearing, George Lavian, the managing member of Plaintiff, offered testimony in connection with the amount of fixed rent and additional rent due to Plaintiff under the Lease. 18. Mr. Lavian testified that, on or about July 31, 2014, Plaintiff and King Street entered into the Lease for the Premises, that King Street defaulted under the terms of the Lease and was evicted in May 2015, that Defendant Edwards and Defendant Stanley each guaranteed King Street's obligations under the Lease, that King Street failed to surrender the Premises in the manner required to relieve Stanley and Edwards from liability under their respective guarantees, that the Premises was never re-let following King Street's eviction and remained vacant and that the amount of $266,046.01 was due and owing to Plaintiff as and for fixed rent and additional rent due under the Lease. A copy of the rent ledger was introduced at the hearing, corroborating Mr. Lavian's testimony. 4 of 8
19. Defendant Edwards' counsel's only question for Mr. Lavian related to Mr. Lavian's personal knowledge that the Premises had not been re-let. Mr. Lavian did, in fact, confirm his personal knowledge that the Premises had not been re-let, stating that he is the only individual that would negotiate and enter into a new lease for.or the Premises on Plaintiff's behalf. 20. Following the testimony, Judge Gammerman stated that he would recommend an award of $266,046.01 as and for the fixed rent and additional rent due. (See page 14 of the January 16, 2018 transcript annexed hereto as Exhibit "E".) 21. With respect to the amount of legal fees due to Plaintiff, Judge Gammerman directed your affirmant to provide counsel with copies of the invoices for all legal fees sought and for counsel to submit a memorandum detailing his objections (if any) to the charges contained therein. 22. The legal invoices were provided to counsel, however, counsel did not submit any memorandum objecting to legal fee charges. 23. On February 27, 2018, the hearing continued with respect to the issue of legal fees. Defendants King Street and Stanley did not appear. Copies of the legal invoices for the Summary Proceeding and for the within action were introduced into evidence. Defendant Edwards' counsel stated that he had no objection to the legal fees relating to the Summary Proceeding and Appellate Term. Counsel's only objection related to the amount of legal fees incurred in the within action. Specifically, counsel claimed that the charges billed for the preparation of the summons and complaint and for the motion for summary judgement were excessive. II 5 of 8
24. Your affirmant testified as to my legal experience (more than 30 years of practice, focusing primarily on real estate litigation) and provided a summary of the events and proceedings on which the within action is predicated. 25. Following your affinnant's testimony and after reviewing the invoices produced, Judge Gammerman recommended that-plaintiff be awarded the total amount of $63,850.00 as and for legal fees incurred in the Summary Proceeding and in connection with the within action. Judge Gammerman reiterated that he recommended an award of $266,046.01 as and for the fixed rent and additional rent due. A copy of a transcript of the February 27, 2018 hearing is annexed hereto as Exhibit "F". 26. It is submitted that Judge Gammerman's recommendation is well founded as it is predicated upon credible testimony, the various submissions before this Court, the rent ledger and the legal invoices. 27. Accordingly, Judge Gammerman's recommendation should be confirmed in all respects. EXPLANATION FOR DELAY IN MOVING TO CONFIRM JUDGE GAMMERMAN'S RECOMMENDATION 28. At the conclusion of the hearing, Judge Gammerman directed that your affirmant obtain transcripts of the January 16, 2018 and February 27, 2018 hearings and deliver them to him to be "so-ordered" so that Plaintiff could then move to confirm Judge Gammerman's recommendations. for' 29. In this regard, on or about March 5, 2018, this office left voice messages for William Cardenuto, the court reporter for the February 27, 2018 hearing, and Gloria Brandon, the court reporter for the January 16, 2018 hearing, in order to obtain copies of the transcripts. 6 of 8
Mr. Cardenuto responded to this office's voice message quickly and the transcript of the February 27, 2018 hearing was so-ordered and e-filed on March 9, 2018. 30. However, this office did not receive a response to the voice message left for Ms. Brandon. Accordingly, on or about March 6, 2018, my associate left two more voice messages for Ms. Brandon relating to the transcript of the January 16, 2018 hearing. The same day, having received no response to said voice messages, my associate called the general office number for the court reporter's office and was advised that Ms. Branden was "on vacation" and to call back on March 12, 2018. On March 12, 2018, my associate called again and was now advised that Ms. Brandon was out for personal reasons and would not be returning for approximately one month. It was then suggested that this office contact John Phelps, the Principal Court Reporter, for further assistance in obtaining a copy of the January 16, 2018 transcript. 31. Accordingly, by email dated March 13, 2018, my associate reached out to Mr. Phelps for help in obtaining a copy of the January 16, 2018 transcript. Mr. Phelps responded to said email and stated that nothing further could be done and that we would have to wait until Ms. Brandon returned from personal leave to get a copy of the transcript. A copy of the March 13, 2018 email chain is annexed hereto as Exhibit "G". 32. Ms. Brandon did return earlier this month and, on or about April 10, 2018, this office received a copy of the transcript of the January 16, 2018 hearing. The very next day, a copy of the transcript was hand-delivered to Judge Gammerman's chambers to be so-ordered. On April 17, 2018, the transcript of the January 16, 2018 hearing was so-ordered and e-filed. 33. Clearly Plaintiff acted expeditiously to obtain copies of the transcripts of the January 16, 2018 and February 27, 2018 hearings. However, Plaintiff could not move to confirm Judge Garnmerman's recommendation without first obtaining the transcript of the January 16, 7 of 8
I 2018 hearing, which was only received by this office on April 17, 2018. Therefore, Plaintiff's delay in moving to confirm Judge Gammerman's recommendation was unavoidable and should be excused. 34. Accordingly, it is respectfully requested that this Court confirm Judge Gammerman's recommendations of an award of (a) $266,046.01 as and for fixed rent and additional rent due under the Lease on Plaintiff's second cause of action and (b) $63,850.00 as and for legal fees on Plaintiff's first and third causes of action and direct the Clerk to accordingly enter judgment against all Defendants. 35. Based upon the foregoing, Plaintiff's motion should be granted in its entirety. WHEREFORE, it is respectfully requested that this court grant Plaintiff's motion in its entirety and grant such other and further relief as to this Court seems just and proper under the circumstances. Dated: New York, New York April 24, 2018. JONAT. MI S I C t t I i t 8 of 8