SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 270 NOSTRAND LENDER LLC. -against- Plaintiff, NNRC PROPERTIES LLC, JOEL LANDAU, MARVIN RUBIN, and SOLOMON RUBIN, Defendants. Index No.: 656492/2016 (Sherwood, J.) Mot. Seq. No. 001 AFFIRMATION OF URGENCY OF JEFFREY M. EILENDER JEFFREY M. EILENDER, an attorney duly admitted to practice in New York, affirms the following under the penalties of perjury: 1. I am a member of Schlam Stone & Dolan, LLP, co-counsel, with Glenn Jones, Esq., for proposed-intervener CABS Nursing Home Company, Inc. ( CABS ), in the abovecaptioned matter. I make this Affirmation in support of CABS motion for an order: (i) permitting CABS to intervene in this action to set forth claims against both the Plaintiff and Defendants, pursuant to CPLR 1012 or 1013; (ii) either consolidating this action with the action styled CABS Nursing Home Company, Inc. v. NNRC LLC et al., Index No. 522385/2016 (Sup. Ct. Kings Cty. Dec. 16, 2016) (the Brooklyn Action ) pursuant to CPLR 602 or staying this action until the Brooklyn Action is resolved; and (iii) granting a temporary restraining order and preliminary injunction, pursuant to CPLR 6313, prohibiting NNRC Properties LLC from transferring the Property located at 270 Nostrand Avenue to 270 Nostrand Lender, or any other party, or to encumber the Property in any other matter, pending resolution of this action and the Brooklyn Action. my files. 2. The matters stated herein are based upon my personal knowledge or a review of 1 of 8
3. Pursuant to CPLR 1014, a true and correct copy of CABS Proposed Answer with Crossclaims and Counterclaims is attached to this affirmation as Exhibit 1. 4. I acknowledge that the proposed pleading in large measure duplicates the claims already asserted by CABS in the Brooklyn Action, but we have no choice. The CPLR permits intervention only if a proposed pleading is included in the motion, and as explained below and in the accompanying memorandum of law, CABS claims ownership of the Property through its claims in the Brooklyn Action. Yet, the Plaintiff and Defendants in the instant Manhattan action are fighting over ownership of the Property as if CABS did not exist, when these parties know better. CABS is a real party in interest in this law suit, and Plaintiff 270 Nostrand Lender should have included CABS as defendant as there are three, not two, parties fighting over the ownership of this property. 5. CABS will be irreparably prejudiced if it is not allowed to participate in this suit and thus it seeks to intervene, asserting claims against the Plaintiffs and Defendants herein that it is CABS and only CABS which is the rightful owner of the Property. Whether CABS s proposed pleading is characterized as an answer with crossclaims and counterclaims or something else and whether the claims therein merely repeat what has already been asserted in Brooklyn are irrelevant. The point is that because CABS is a real party in interest, this suit cannot go on without it. 6. This Affirmation also constitutes my Affirmation of Emergency, pursuant to Uniform Trial Rule 202.7(f). 7. Emergency relief is necessary in this matter because 270 Nostrand Lender has demanded that this Court order that NNRC Properties LLC agree to sell the Property to 270 Nostrand Lender. And indeed, even Defendants counterclaims seek an order requiring 270 2 2 of 8
Nostrand Lender to purchase the Property, just at a higher price. Any such sale, whether ordered by this Court or accomplished by agreement of the parties, would irreparably harm CABS in that CABS alleges that the sale of the Property to NNRC Properties LLC was fraudulently induced and thus is invalid. A finding of fraud would invalidate the Mortgage Agreement between NNRC Properties LLC and 270 Nostrand Lender and would require the return of the Property to CABS, inasmuch as CABS alleges that 270 Nostrand Avenue was on notice of the fraud before entering into the Mortgage Agreement. 8. CABS is litigating its fraud and recession claims against NNRC Properties LLC and its affiliates (known collectively as Allure ) in the Brooklyn Action. 9. By definition, the Brooklyn Action will pre-determine whether 270 Nostrand Avenue or NNRC Properties LLC will have any interest in the Property. Thus, it is crucial that neither this Court nor the parties in this action take any steps that are inconsistent with what the Brooklyn Court is doing with regard to the Property. 10. It is for this reason that CABS has moved by Order to Show Cause, so that CABS is permitted to intervene quickly and so that a TRO is in place in this action maintaining the status quo until the Brooklyn court can make further rulings. 11. The sales agreements, pursuant to which CABS sold the Property, provide that any claims regarding the validity of the agreements must be adjudicated solely in Kings County. (See Alayon Aff. Ex. 1 (APA) at 13.4 ( Each of the Parties hereto (i) consents to submit itself to the personal jurisdiction of any Federal court located in Kings County of the State of New York or any New York state court in Kings County in connection with any dispute that arises out of this Agreement or any of the transactions contemplated by this Agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave 3 3 of 8
from any such court, and (iii) agrees that it will not bring any action relating to this Agreement or any other agreement contemplated hereby or any of the transactions contemplated hereby or thereby in any court other than a Federal court or a New York state court sitting in Kings County unless venue would not be proper under rules applicable in such courts. ); Ex. 2 (RE Contract) at 26(d) ( Each of the Parties hereto (i) consents to submit itself to the personal jurisdiction of any Federal court located in Kings County of the State of New York or any New York state court in Kings County in connection with any dispute that arises out of this Agreement or any of the transactions contemplated by this Agreement (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, and (iii) agrees that it will not bring any action relating to this Agreement or any other agreement contemplated hereby or any of the transactions contemplated hereby or thereby in any court other than a Federal court or a New York state court sitting in Kings County unless venue would not be proper under rules applicable in such courts. ).) 12. CABS has recently amended its complaint in the Brooklyn Action to add 270 Nostrand Avenue as a defendant with respect to a declaratory judgment claim that it has no interest in the Property because of its notice of and participation in the fraud. A true and correct copy of the Amended Complaint (without exhibits) in the Brooklyn Action is attached hereto as Exhibit 2. 13. All of the persons and entities who are parties in the instant action are also parties in the Brooklyn Action. The reverse is not true, however. Many of the parties relevant to claims of ownership to the Property have not been included in this Manhattan case, but are parties in the Brooklyn Action. Thus, the Brooklyn Action is the sole venue where complete relief can be given to all the relevant parties. That action also involves claims that are not present here. 4 4 of 8
14. CABS thus seeks to intervene in this action and requests that this Court either consolidate the actions in Brooklyn, or stay this action pending the resolution of the Brooklyn Action so that, in the interests of judicial efficiency and avoiding inconsistent results, a single Court can determine the common issues between the two actions which, CABS believes, will first and foremost require a return of the Nursing Home and Property to CABS. Because this is entirely a Brooklyn dispute about a Brooklyn property that created harm in Brooklyn and includes mostly-brooklyn based parties, the dispute is most properly heard in its entirety in Kings County. 15. Preliminary relief is necessary because Defendants representations to CABS as well as the City and State of New York in this matter have been fraudulent from the very first meeting between CABS and Defendant Joel Landau more than four years ago. Accordingly, Plaintiff has reason to believe that, absent a preliminary injunction, Defendants may take actions to harm CABS interest in the Property, including by attempting to sell the Property to 270 Nostrand Lender or a different entity, or by renovating or destroying the Home in a way that would make its re-opening as a nursing home impossible. 16. In particular, according to an article written by Greg B. Smith of the New York Daily news on Thursday, April 7, 2016, on Wednesday, April 6, 2016, the city Buildings Department issued a stop work order at the site because of a commissioner s re-inspection of the permit applications. The city wants to know whether it was lied to in granting permits for apartments on a property that was being used as a nursing home. 17. That stop work order remains in place. However, on July 28, 2016, an investigator for the Attorney General s Office personally viewed work occurring on the premises of 270 Nostrand Avenue. The investigator viewed workers capping water and sewage lines on the 5 5 of 8
Premises. The investigator personally viewed permits for this work issued by the NYC Department of Environmental Protection on June 23, 2016 for plugging sewer connections at the property at 270 Nostrand Avenue. Solomon Rubin was listed as the owner of the building on the permit. 18. We have asked counsel for Defendants in the Brooklyn Action to agree to a TRO to maintain the status quo of the Property, and not to settle or resolve this New York County action in any way that would harm CABS interest in the Property, absent CABS consent. However, Defendants refused to stipulate to this injunction. Accordingly, given Defendants fraudulent actions from the beginning of their relationship with CABS, their failure to comply with the stop work order, and their refusal to agree to maintain the status quo of the property without court intervention, CABS is required to seek this relief in order to protect its interests in the Property, which will be irreparably harmed absent a temporary restraining order and preliminary relief. 19. CABS also has reason to believe that 270 Nostrand Lender wishes to demolish the Home and/or sell the Home at a profit to a third-party that would demolish the Home and develop it at a profit. 270 Nostrand Lender has no prior experience in the nursing home industry, and nothing about its actions indicates that it intends to or would be able to continue to operate the Home. Accordingly, preliminary relief is also needed to prevent 270 Nostrand Lender from obtaining ownership of the Property, which would ultimately result in the Home s destruction. 20. Unbeknownst to CABS at the time, on June 30, 2015, the same date as the closing, NNRC Properties, as borrower, entered into a mortgage agreement with 270 Nostrand Lender, as lender, for the property at 270 Nostrand Avenue (the Mortgage Agreement ). The Mortgage Agreement lists Joel Landau, Solomon Rubin and Marvin Rubin as liable parties for 6 6 of 8
NNRC Properties, jointly and severally. A true and correct copy of the Mortgage Agreement is attached hereto as Exhibit 3. 21. The Mortgage Agreement provides that NNRC Properties will indemnify 270 Nostrand Lender from any claims by or litigation with any current for former occupants of the Property on account of the closure of the nursing home being operated at the Property and/or the relocation of the occupants thereof. Ex. 3 at Section 14.04. 22. The immediate entrance into this mortgage agreement on the same day the Agreements were closed, and the inclusion of this provision, unbeknownst to CABS at the time, is clear evidence that Allure and the Individual Defendants never planned to continue to run the Home as a nursing home and were fully aware that their closure of the Home would likely lead to litigation. 23. Thus, Allure had expressed in writing as of the closing that they would close the Nursing Home and that they had hidden this from CABS, its employees and the patients (otherwise what would be their basis for these provisions?). CABS did not become aware of the incriminating mortgage agreement until recently. 24. Moreover, Section 14.02 of the Mortgage Agreement grants 270 Nostrand Lender an option to purchase the Property (i) at any time after the occurrence of and Event of Default, (ii) on the Maturity Date, or (iii) at any time after the Maturity Date for so long as the Loan is outstanding, for a purchase price in the amount of $25,000,000....unless the Property has been vacated of all tenants and occupants and there is no pending litigation regarding the same, in which event the purchase price shall be $40,000,000. Ex. 3 at Section 14.02. 25. 270 Nostrand Lender was so cognizant of the fraud that it negotiated for discount of fifteen million dollars in the event that the Home could not be emptied as Allure secretly 7 7 of 8
planned or in the likely event that litigation arose as to the closure of the Home. This is substantial evidence of 270 Nostrand Lender s knowledge of Allure s hidden plan to empty the Home, of 270 Nostrand Lender s understanding of the likelihood of a public outrage and litigation arising once this hidden plan became public knowledge, and of 270 Nostrand Lender s own intent to profit from that fraud. Accordingly, it is clear that any transfer of the Property to 270 Nostrand Lender would greatly and irreparably harm Plaintiffs. 26. On February 8, 2017, my associate e-mail counsel for Allure and asked them to consent to CABS intervention and TRO. Counsel for Allure represented that they had no current intention to transfer the Property. A true and correct copy of this e-mail is attached hereto as Exhibit 4. If this is truly the case, Allure cannot argue any prejudice resulting from the TRO sought by CABS, as Allure would solely be restrained from doing something which it claims to have no intention of doing. 27. There has been no other application for relief sought herein to this or any other court, except out of an abundance of caution, we are seeking from the Brooklyn court a similar order to maintain the status quo in case this Court declines to hear CABS application. 28. The Allure Defendants are represented by Neil Steiner and Andrew Levander of Dechert LLP, and 270 Nostrand Lender is represented by Avi Schick of Dentons. Because we are seeking interim relief, we provided at least 24 hours written notice of our intention to make this motion to counsel for all parties by e-mail and by filing this motion on the NYSCEF system, on which counsel for all parties in this action have appeared. Dated: New York, New York March 21, 2017 Jeffrey M. Eilender Jeffrey M. Eilender 8 8 of 8