FILED: NEW YORK COUNTY CLERK 01/11/2016 02:36 PM INDEX NO. 650736/2015 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 01/11/2016 EXHIBIT C
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MERCER (US) INC., Plaintiff, Index No. 650736/2015 -against- MGI REPETTI LLP f/k/a GRAF REPETTI & CO, LLP, JOHN R. REPETTI, STEVEN BATTINO, DMITRY BOGDASHEVSKY, RONALD J. CARLEN, MARK L. FARBER, PETER L. GRASSO, STEVEN A. GREENE, EDWARD GROSS, LI LI HUANG, HUSSEIN IBRAHIM, DEVANG JAI, KEVORK V. KADEHJIAN, TED B. LACKOWITZ, DIANE K. MCGAUGHEY, WILLIAM B. MORRIS, KAM HANG NG, BERNARD POMERANTZ, DAVID SUNSHINE, JOHN DOE 1-100, and JANE DOE 1-100, VERIFIED AMENDED COMPLAINT DefendantDefendants. Plaintiff, Mercer (US) Inc. ( Plaintiff ), by its attorneys, Davis & Gilbert LLP, as and for its Amended Complaint against defendantdefendants, MGI Repetti LLCLLP f/k/a Graf Repetti & Co, LLP ( DefendantMGI Repetti ), John R. Repetti, Steven Battino, Dmitry Bogdashevsky, Ronald J. Carlen, Mark L. Farber, Peter L. Grasso, Steven A. Greene, Edward Gross, Li Li Huang, Hussein Ibrahim, Devang Jai, Kevork V. Kadehjian, Ted B. Lackowitz, Diane K. McGaughey, William B. Morris, Kam Hang Ng, Bernard Pomerantz, David Sunshine, John Doe 1-100, and Jane Doe 1-100 (together, Defendants ), alleges as follows: NATURE OF ACTION 1. 1. Plaintiff seeks damages against DefendantDefendants for unpaid rental payments and related charges due to Plaintiff pursuant to a written rental sublease Repetti Complaint 1662439v1 and Amended Repetti Complaint 1726939v1 1/11/2016 10:48:10 AM
agreement, dated as of September 10, 2012 (the Sublease ), between Plaintiff, as sublandlord, and Graf Repetti & Co., LLP predecessor-in-interest to MGI Repetti LLP, as subtenant, covering the entire 5 th floor (the Premises ) in the building located at 500 Fifth Avenue, New York, New York (the Building ), which Sublease is subject and subordinate to that certain lease dated as of July 31, 2003 (as same has been amended, the Lease ) between 500 Fifth Avenue as landlord, and Organization Resources Counselors Inc., predecessor-ininterest to Plaintiff, as tenant. 2. 2. Pursuant to paragraph 2 of the Sublease, DefendantMGI Repetti is obligated to pay Plaintiff rental payments through June 13, 2019. DefendantMGI Repetti, however, ceased compliance with the terms of the Sublease when itmgi Repetti abandoned the Premises and subsequently stopped making payments toward its outstanding rental arrears in JuneJuly 2014. 3. 3. As a result of DefendantMGI Repetti s failure to cure its default of Article 2 of the Sublease and make monthly rent payments to Plaintiff, DefendantMGI Repetti s Sublease was terminated by Plaintiff on September 19, 2014 pursuant to Articles 17 and 58 of the Lease. Plaintiff commenced a holdover proceeding against DefendantMGI Repetti for possession of the Premises, which Plaintiff voluntarily dismissed without prejudice as a result of DefendantMGI Repetti s having abandoned the Premises as of 4. In breach of the Sublease, Defendant did not leave the Premises in broom clean condition, causing Plaintiff to incur additional costs. 4. 5. Despite efforts to do so, Plaintiff has not yet re-let the Premises. As of today, Plaintiff has suffered damages caused by DefendantDefendants in the amount of $359,437.531,557,643.93. This amount is comprised of base rent for the months July 2014 2
through March 2015January 2016. It also includes additional rent (as defined in the Sublease) for May, June, and July 2014, including but not limited to,tenant improvement/brokerage fees, as well as reasonable attorneys fees and out of pocket costs incurred by Plaintiff as a result of DefendantMGI Repetti s breach of the Sublease, as well as expenses paid by Plaintiff to vendors on Defendant s behalf for rubbish removal, cleanup, and to restore the Premises to broom-clean condition. The outstanding balance is comprised of amounts due and owing by DefendantMGI Repetti after Plaintiff s application of a letter of credit provided by DefendantMGI Repetti pursuant to the Sublease. Plaintiff currently holds no security against outstanding amounts due and owing by DefendantMGI Repetti. THE PARTIES 5. 4. Plaintiff Mercer (US) Inc. is a New York corporation and is the sub-landlord of the above-mentioned described Premises. 6. 5. On information and belief, Defendant MGI Repetti is a New York limited liability partnership that was the sub-tenant of the Premises until it abandoned the Premises inon or about June DefendantMGI Repetti is a global public accounting firm with offices now at the headquarters of Citrin Cooperman, located at 529 Fifth Avenue, New York, New York 10017. Defendant continues to operate the same business under the same name as when it was subtenant at the Premises. Many of MGI Repetti s former partners currently provide accounting services for Citrin Cooperman and continue to provide accounting services to many of the same clients they serviced while at MGI Repetti. 7. On information and belief, John R. Repetti was a partner of MGI Repetti as of On information and belief, John R. Repetti resides in Nassau County, New 3
8. On information and belief, Steven Battino was a partner of MGI Repetti as of On information and belief, Steven Battino resides in Nassau County, New 9. On information and belief, Dmitry Bogdashevsky was a partner of MGI Repetti as of On information and belief, Dmitry Bogdashevsky resides in Queens County, New 10. On information and belief, Ronald J. Carlen was a partner of MGI Repetti as of On information and belief, Ronald J. Carlen resides in Passaic County, New Jersey. 11. On information and belief, Mark L. Farber was a partner of MGI Repetti as of On information and belief, Mark L. Farber resides in Nassau County, New 12. On information and belief, Peter L. Grasso was a partner of MGI Repetti as of On information and belief, Peter L. Grasso resides in Suffolk County, New 13. On information and belief, Steven A. Greene was a partner of MGI Repetti as of On information and belief, Steven A. Greene resides in Westchester County, New 14. On information and belief, Edward Gross was a partner of MGI Repetti as of On information and belief, Edward Gross resides in Bergen County, New Jersey. 15. On information and belief, Li Li Huang was a partner of MGI Repetti as of July 1, 2014. On information and belief, Li Li Huang resides in Queens County, New 4
16. On information and belief, Hussein Ibrahim was a partner of MGI Repetti as of On information and belief, Hussein Ibrahim resides in Queens County, New 17. On information and belief, Devang Jai was a partner of MGI Repetti as of July 1, 2014. On information and belief, Devang Jai resides in Nassau County, New 18. On information and belief, Kevork V. Kadehjian was a partner of MGI Repetti as of On information and belief, Kevork V. Kadehjian resides in Bergen County, New Jersey. 19. On information and belief, Ted B. Lackowitz was a partner of MGI Repetti as of On information and belief, Ted B. Lackowitz resides in Suffolk County, New 20. On information and belief, Diane K. McGaughey was a partner of MGI Repetti as of On information and belief, Diane K. McGaughey resides in Nassau County, New 21. On information and belief, William B. Morris was a partner of MGI Repetti as of On information and belief, William B. Morris resides in Nassau County, New 22. On information and belief, Kam Hang Ng was a partner of MGI Repetti as of On information and belief, Kam Hang Ng resides in Queens County, New 23. On information and belief, Bernard Pomerantz was a partner of MGI Repetti as of On information and belief, Bernard Pomerantz resides in Nassau County, New 5
24. On information and belief, David Sunshine was a partner of MGI Repetti as of On information and belief, David Sunshine resides in Westchester County, New 25. On information and belief, John Doe 1-100 were partners of MGI Repetti as of 26. On information and belief, Jane Doe 1-100 were partners of MGI Repetti as of ALLEGATIONS COMMON TO ALL CLAIMS 27. 6. On or about September 10, 2012, Plaintiff, as sub-landlord and Graf Repetti & Co., LLP predecessor-in-interest to MGI Repetti LLP, as subtenantsub-tenant, entered into the Sublease. The Sublease is subject and subordinate to the Lease. 28. 7. Pursuant to paragraph 1 of the Sublease, the term of the Sublease was for a period commencing on the Commencement Date (as defined in the Sublease) and ending on June 13, 2019. 29. 8. Pursuant to paragraph 3 of the Sublease, DefendantMGI Repetti was required to pay fixed rent for the 5 th Floor Premises of the Building in the following amounts: Commencement Date through June 13, 2013--$74,490 per month ($893,880 annual base rent); June 14, 2013 through June 13, 2014--$75,607.35 per month ($907,288.20 annual base rent); June 14, 2014 through June 13, 2015--$78,810.63 per month ($945,727.52 annual base rent); June 14, 2015 through June 13, 2016--$79,992.79 per month ($959,913.44 annual base rent); 6
June 14, 2016 through June 13, 2017--$87,400.18 per month ($1,048,802.14 annual base rent); June 14, 2017 through June 13, 2018--$88,711.18 per month ($1,064,534.17 annual base rent), and June 14, 2018 through June 13, 2019--$90,041.85 per month ($1,080,502.18 annual base rent) 30. 9. Pursuant to paragraph 2 of the Sublease, DefendantMGI Repetti s rent is due on the first (1 st ) of each month during the term without the necessity of Plaintiff to send an invoice. Additional Rent is to be paid together with fixed rent or within 30 days after receipt of an invoice. 31. 10. Additionally, Pursuant to paragraph 14 of the Sublease, if a lawsuit is brought against DefendantMGI Repetti on account of any default pursuant to the Sublease, DefendantMGI Repetti is responsible for paying the Plaintiff s reasonable attorneys fees and costs. 32. Pursuant to section 61(q) of the Lease, each of the partners of MGI Repetti is joint and severally liable to Plaintiff. Section 61(q) of the Lease states: If the Tenant is a partnership (which for purposes of this lease shall be deemed to include... a limited liability partnership)... (any such partnership... [is] referred to in this Section 61([q]) as Partnership Tenant ),... the liability of each of the parties comprising Partnership Tenant (other than limited partners) shall be joint and several. 33. On information and belief, at the time MGI Repetti breached its Sublease with Plaintiff, Defendants John R. Repetti, Steven Battino, Dmitry Bogdashevsky, Ronald J. Carlen, Mark L. Farber, Peter L. Grasso, Steven A. Greene, Edward Gross, Li Li Huang, Hussein Ibrahim, Devang Jai, Kevork V. Kadehjian, Ted B. Lackowitz, Diane K. McGaughey, William 7
B. Morris, Kam Hang Ng, Bernard Pomerantz, David Sunshine, John Doe 1-100, and Jane Doe 1-100 were each a partner of MGI Repetti, and so these individuals are parties comprising MGI Repetti pursuant to the Sublease. These individuals are, therefore, joint and severally liable with MGI Repetti to Plaintiff under the Sublease, because the Sublease is subject and subordinate to the Lease. 34. 11. InOn or about JuneJuly 1, 2014, DefendantMGI Repetti abandoned the Premises and on July 1, moved into its new offices at 529 Fifth Avenue, New York, New On or about September 19, 2014, Plaintiff terminated DefendantMGI Repetti s lease. In or about December 2014, when it became clear that DefendantMGI Repetti had abandoned the Premises permanently and represented in Civil Court Part 52, through counsel, that it had no intent to return to the Premises, Plaintiff took back possession of the Premises pursuant to the Sublease and Lease. Since DefendantMGI Repetti abandoned the Premises, Plaintiff has yet to re-rent the Premises. 35. 12. From the commencement of the Lease through June, 2014, DefendantMGI Repetti paid its fixed rent pursuant to the Sublease. As of the date of this Amended Complaint, however, DefendantMGI Repetti has failed to pay fixed rent and additional rent in the amount of $359,437.531,557,643.93, which sum consists of base rent for July 2014 through MarchJanuary 2015, and additional rent charges for May, June, and July 2014, including but not limited to, tenant improvement/brokerage fees as well as reasonable attorneys fees and out-of-pocket costs incurred by Plaintiff as a result of DefendantMGI Repetti s breach of the Sublease as well as expenses paid by Plaintiff to vendors on Defendant s behalf for rubbish removal, cleanup, and to restore the Premises to broom-clean condition. 8
36. 13. As a result of DefendantMGI Repetti s unlawful actions, as of today, Plaintiff has thus far been damaged in the amount of $359,437.531,557,643.93. Plaintiff s damages are continuing. 9
AS AND FOR A FIRST CAUSE OF ACTION (Breach of Lease) 37. 14. Plaintiff repeats and restates each of the allegations contained in the preceding paragraphs of this Amended Complaint as if fully set forth at length herein. 38. 15. Defendant hasdefendants have breached the express terms of the Sublease by, among other things, failing to pay rent, additional rent, and related charges due to Plaintiff pursuant to the terms of the Sublease. 39. 16. As a direct and proximate result of Defendant sdefendants breach of the Sublease, Plaintiff has suffered, and will continue to suffer, substantial damages. AS AND FOR A SECOND CAUSE OF ACTION (Breach of Contract) 40. 17. Plaintiff repeats and restates each of the allegations contained in the preceding paragraphs of this Amended Complaint as if fully set forth at length herein. 41. 18. By failing to pay Plaintiff the rental payments due, Defendant hasdefendants have breached the Sublease, and deprived Plaintiff of the benefit of its contract with DefendantDefendants. 42. 19. As a direct and proximate result of Defendant sdefendants breach of contract, Plaintiff has suffered, and will continue to suffer, substantial damages. AS AND FOR A THIRD CAUSE OF ACTION (Unjust Enrichment/Quantum Meruit) (brought in the alternative to the First and Second Causes of Action) 43. 20. Plaintiff repeats and restates each of the allegations contained in the preceding paragraphs of this Amended Complaint as if fully set forth at length herein. 44. 21. Defendant hasdefendants have been unjustly enriched by virtue of having a Sublease to Plaintiff s Premises, but failing to pay rent due to Plaintiff. 10
45. 22. As a direct and proximate result of Defendant sdefendants wrongful conduct, Plaintiff has suffered, and will continue to suffer, substantial damages. AS AND FOR A FOURTH CAUSE OF ACTION (Breach of Implied Covenant of Good Faith and Fair Dealing) 46. 23. Plaintiff repeats and restates each of the allegations contained in the preceding paragraphs of this Amended Complaint as if fully set forth at length herein. 47. 24. Defendant hasdefendants have breached the implied covenant of good faith and fair dealing which is implicit in commercial contracts. 48. 25. By failing to pay the rental payments due to Plaintiff, DefendantDefendants improperly and wrongfully breached the implied covenant of good faith and fair dealing. 49. 26. As a direct and proximate result of Defendant sdefendants breach, Plaintiff has suffered, and will continue to suffer, substantial damages. WHEREFORE, Plaintiff respectfully requests final judgment against DefendantDefendants as follows: (a) For judgment against DefendantDefendants on all Counts in an amount to be determined at trial (and reserving the right to further amend the Amended Complaint before trial to obtain judgment for the full amount then due), but in any event, not less than $359,437.531,557,643.93. (b) For interest, costs and disbursements of this action, including Plaintiff s reasonable attorneys fees allowed pursuant to the Lease; and; 11
(c) For such other and further relief as may be just and proper. Dated: New York, New York March 9January 11, 20152016 DAVIS & GILBERT LLP By: Neal H. Klausner Jesse B. Schneider 1740 Broadway New York, New York 10019 (212) 468-4800 Attorneys for Plaintiff Mercer (US) Inc. 12