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New York Appeal : Order to Show Cause to Stay Commercial Eviction

PEDRO TAVAREZ

Petitioner,                                                                                 ORDER TO SHOW CAUSE UPON MOTION TO for PRELIMINARY INJUNCTION & STAY

v.

HOUSE OF EXCELLENCE, INC.,

Respondent,
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Upon reading and filing the annexed Affidavit of Tenant, duly sworn on the 22nd day of November, 2004, the Order to Show Cause of this Court dated October 22, 2004, and upon all the prior pleadings and proceedings in this action;


LET the Respondent and or its attorneys show cause before this Court at 111 Livingston Street Room 1902, Brooklyn, New York 11201, on the day of December, 2004, at 9:30 o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, why an Order should not be made as follows:

(a) Injunction enjoining and restraining the landlord and its agents from removing anddamaging the personal effects and property of Tenant at 735-737 Bergen Street, Brooklyn, known as the premises;


(b) enforcing the return of all personal property to Tenant; and (c) granting such other and different relief as may be just. SUFFICIENT CAUSE THEREFOR APPEARING, it is


ORDERED, that personal service of a copy of this Order and of the supporting papers upon the attorney for the Respondent, XXXXXXXX on or before the day of December, 2004, by 5:00 p.m. at 50 Court Street, Brooklyn, NY 11201, shall be deemed sufficient and timely; and it is further
ORDERED, that any removal of Tenant’s property within the premises is stayed pending the hearing and determination of this motion; and it is further
ORDERED, that on December 2, 2004 Tenant may enter the premises and remove the following property as it is needed for immediate business purposes, pending this motion:

- All Files, books, contracts, customers files, vendors and employee files and other Company documents and the safes and phones in the premises, including in the managers office, accountants office and reception area on the first and second floors of the premises and in desk drawers, filing cabinets and safes.
Dated: Brooklyn, New York
November 29, 2004 Judge, Civil Court

PEDRO TAVAREZ

Petitioner, AFFIRMATION IN SUPPORT OF MOTION TO for PRELIMINARY
v. INJUNCTION & STAY
HOUSE OF EXCELLENCE, INC., Respondent,
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STATE OF NEW YORK )
COUNTY OF KINGS ) ss.:

SUSAN CHANA LASK, an attorney in good standing and duly admitted to practice law before the courts of the State of New York, with offices located at 853 Broadway, Suite 1516, New York, New York, 10003, affirms the following under penalties of perjury:
1. I am the attorney for House of Excellence, Inc. and am fully familiar with the facts and circumstances set forth herein. In support of this motion I submit:


(a) This Affirmation and

(b) Tenant’s Affidavit dated November 29, 2004.

My affirmation is based upon information obtained and documents provided to me from Winston B. Forde, President of Respondent. My representation is limited solely to drafting this Order To Show Cause for a stay because I witnessed improprieties of the Landlord to which the Tenant, House of Excellence, requires immediate relief by staying any further damage to its proeprty and allowing Tenant to remove its property. The facts are stated in detail in Tenant's Affidavit.


2. On October 22, 2004 the Appellate Term granted Tenant, a commercial tenant, a 10 day stay on the condition that it deposit $162,000 with the clerk of the trial court. Tenant was in the process of securing a bond. The bond company required certain documents. As Tenant worked on obtaining the documents, I called Landlord's attorney, David Stern, Esq., on November 3, 2004 to request an adjournment. Mr. Stern refused to adjourn the bond requirements. Because he refused, I tried to negotiate an orderly removal of the Tenant’s property and expensive commercial equipment to prevent damage to the business and the equipment. Mr. Stern refused removal of the property. He failed to tell me that as I was speaking to him on the phone he had the Sheriff simultaneously enforcing a warrant of eviction and locking out the Tenant.

3. At about 5:00 p.m. on November 3, 2004 the Landlord locked the Tenant out. A Sheriff secured tenant's property. According to Tenant's Affidavit, attached hereto, the Landlord refused to allow Tenant to remove its personal property and converted Tenant's property to his own use, customers to disparage Tenant.

4. I called Tenant at about 6:30 p.m. on November 3, 2004 and a male answered it's business phone as "Ray's Pizza." I asked where my client was and the male said my client never was at that location and told me it was Ray's Pizza, and hung up on me. I suspect the male was the Landlord based on the circumstances as Tenant would not undermine his business.


5. My client later informed me that the same male was the Landlord who also called Tenant’s customers and disparaged Tenant and damaged Tenant’s property in the premises after Tenant was dispossessed. On November 8, 2004 I faxed a letter to Respondent's counsel, David Stern, Esq., in an effort to stop Respondent's damage to my Tenant's property and business and to allow Tenant to recover the property. I spoke with Mr. Stern thereafter. His position was that his client had a right to keep Tenant’s personal property because of back rent due.

6. Landlord’s position is contrary to the law. It is an unlawful conversion for Landlord to takecontrol of Tenant’s property. This Department held that under a warrant of eviction a landlord is only entitled to possession of the real property involved therein and has no right to use, damage or retain the personal property of the tenant left by the tenant on the premises. Glass v. Weiner, et. al,104 A.D.2d 967, 480 N.Y.S.2d 760 (2d Dept, 1984). Also, Landlord has no right to answer tenant's business phones, destroy tenant's property and go through tenant's files to contact its customer's for the purpose of damaging its business reputation. These are exactly the damages the law under CPLR §2201 and City of New York v. Falcone, 160 Misc.2d 234 (App. Term, 2d Dep't 1994) exist to protect a commercial tenant from.

7. Tenant needs immediate equitable relief to protect its property and business from Landlord’s ongoing damage against the law which demands Landlord store or allow tenant to remove the property, not convert it. A temporary injunction enjoining and restraining the landlord and its agents from removing the personal effects and property of Tenant at 735-737 Bergen Avenue, Brooklyn, is required as it will (a) prevent the irreparable injury of Landlord further damaging Tenant’s business and property and stop Landlord’s unlawful withholding of Tenant’s property, all of which is interfering with Tenant’s ability to conduct its business as even Tenant’s business files in its office are being withheld by Landlord and (b) Tenant will certainly win on the merits that Landlord’s actions are a conversion and by law Landlord has no right to hold Tenant’s personal property under a warrant of eviction but actually must store it or allow Tenant to remove the property, which Tenant wants to remove and only an order form this court will resolve this matter.

8. Also, pending this motion, Tenant needs to enter the premises on December 3, 2004 to at least remove the following property pending this motion for a permanent injunction as it is needed to conduct it business:

 

- All files, books, contracts, customers files, vendors and employee files and other Company documents and the safes and phones in the premises, including in the managers office, accountants office and reception area on the first and second floors of the premises and in desk drawers, filing cabinets and safes.

 

WHEREFORE, it is respectfully submitted that (a) a temporary injunction be granted against Landlord and its agents from removing and destroying Tenant’s property pending this motion for a permanent injunction and the return of Tenant’s property and that (b) Tenant be allowed to enter the premises to remove its files, safes and telephones on November 26, 2004 and for such other and further relief as this Court deems just and proper.

Dated: New York, New York Yours, etc.,
November 26, 2004 LAW OFFICES OF SUSAN CHANA LASK

__________________
Susan Chana Lask, Esq.
Attorney for Tenant
244 Fifth Avenue, Suite 2369
New York, NY 10001
(212) 358-5762

 

CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF KINGS: COMMERCIAL PART
-------------------------------------------------------------- INDEX No.: 78771-04

 

PEDRO TAVAREZ, AFFIDAVIT OF TENANT Petitioner, IN SUPPORT OF
MOTION TO for PRELIMINARY
v. INJUNCTION & STAY

HOUSE OF EXCELLENCE, INC.,
Respondent,
-------------------------------------------------------------
STATE OF NEW YORK )
 COUNTY OF KINGS )ss:

I, Winston B. Forde, President of House of Excellence, Inc., the Tenant, being duly sworn deposes and says:

1. I am the President of Tenant and make this Affirmation to state facts of the monetary and other consequential irreparable damage that occurred since Landlord entered the premises.
2. I was in the process of securing a bond and my attorney on November 3, 2004 called the

Landlord's counsel to request a few days so we could secure the bond without interruption of our business. The landlord's attorney refused an adjournment. Later that afternoon the landlord locked us out of our business.


3. The Sheriff told the Landlord that he should not move, damage or destroy any thing from the property. He told him that he should consult with his attorney on what he should do. We then took the few things we had gathered and left as the landlord refused to allow us anytime to gather our property. Left in the property is very expensive equipment such as commercial refrigerators, freezers, stoves and more used to conduct our food service business.


4. Also, in the parking lot were two of our vans that we use for deliveries. They were left at their usual spot in the parking lot behind the gate, which has a lock on it. The following day, I drove by and saw the vans still locked in the parking lot. The next morning one of my employees informed me that he saw the two vans parked at the bus stop in front of 737 Bergen Street. The vans had parking tickets. I called another employee to see what was going on and to move the vans. When we arrived the vans were parked at the bus stop but the tickets were removed. We tried to move the vans but they were disabled from being tampered with. A mechanic discovered that the transmission was disabled on both vans and the alarm system on one was disabled. He temporarily repaired the vans and they were taken to his shop where he repaired them.

 

5. There was also damage to the lock on the adjoining property that we posses at 731/733. Also one of our dumpsters was filled up with bags of sand. These bags were stored in 731/733 for repairs. The only way anyone could enter our premises was from the premises the Landlord took possession from us on November 3, 2004.

6. I also discovered that most of my customers were called by a male who identified himself as the Marshal and told them that they will no longer receive food from our company because we were evicted and we were running from the police as criminals. Attached as Exhibit "A" is a letter received from our customer Educare detailing this.

7. The landlord has refused our entrance to remove our property, discarded our property into the streets and damaged our property and converted our property. I understand this is unlawful. I also represent to this court that the Landlord’s conduct has seriously damaged our business and property. Even a simple request such as to get our business files from the property has been refused by Landlord; thus we have no access to employee records, client files, contracts, licenses and other information we need for not only our business but to satisfy Federal and State compliance. Also, Landlord’s tampering with our vans and throwing them into the streets was unlawful, and his continuing retaliations against our property is costing us money to repair what he has unlawfully done, as well as we lose money everyday without the documents and equipment we need, which Landlord has unlawfully taken from us.


WHEREFORE, it is respectfully submitted that (a) a temporary injunction be granted against Landlord and its agents from removing and destroying Tenant’s property pending this motion for a permanent injunction and the return of Tenant’s property and that (b) Tenant be allowed to enter the premises to remove its files, safes and telephones on November 26, 2004 and for such other and further relief as this Court deems just and proper.

Dated: New York, New York
November 29, 2004