FILED: NEW YORK COUNTY CLERK 07/14/2011

NYSCEF DOC. NO. 1

INDEX NO. 651931/2011 RECEIVED NYSCEF: 07/14/2011

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

CASSIDY TURLEY NEW YORK INC.,

Plaintifl
-against-

SUMMONS

127 WEST

25thLLC,
Defendant.

Index No.

/2011

To the above named Defendants:

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 this summon8 to serve a notice of appearance with a demondfor the complaint, on the plaintiffs attorneys within 20 days after the service of this summong exclusive of the day of service, where service is
made by delivery upon you personally within the state, or within 30 days after completion

of service where service is made in any other manner. In case of yourfailure to appear

or answer, judgment will be taken against you by defaultfor the relief demanded in the
complaint.

Plaintiff designates New York County

The basis of the venueis Plaintiff
s

as the place

of trial.

place of businesq.

',

Dated this L4th day of July,20ll,

'- , corp
An

l
i:'

CHESTER LLP

laintiff

By: Michael S. Cole, Esq.

767 Third Avenue - 24th Floor New York, New York 10017 Tel: (212) 599-1535

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

CASSIDY TURLEY NEW YORK [NC., Plaintiff,

VERIFIED COMPLAINT

-againstIndex Defendant.

127 WEST

zsthLLC,

No.

l20ll

The plaintiffCassidy Turley New York Inc. (hereinafter "Cassidy Turley'') by its attomeys Cole Hansen Chester LLP, complaining of the defendant respectfully alleges:

The Parties

1.

The plaintiffCassidy Turley is a New York corporation and a licensed real

estate broker in New

York.

2.

The defendant 127 West 25th LLC (hereinafter "127 West 25th" or
a

"Landlord/Owner") is upon information and belief

New York Limited Liability

Corporation and owner of the building known by the street address 127-l3l West 25th
Street, New York, New York.

The

Moterial Facts

3.

On or about February 2010 awritten real estate brokerage agreement was

executed whereby the defendant landlord/owner

of

127 West 25th, at paragraphs

I
s

and 2

of the said written real estate brokerage agreement, promised to pay the plaintiff

predecessor in interest Colliers ABR Inc., (hereinafter ABR) also a licensed real estate

broker, the commission of

$2

,287,570 (two million two hundred eighty seven thousand

a

five hundred seventy dollars) upon execution and delivery of

binding lease between

defendant 127 West 25th as Landlord and the Bowery Residents Committee ("BRC") as
Tenant with regard to the building 127-131 West 25th Street New York, New

York.

See,

Exhibit A annexed hereto.

4.

Also pursuant to the terms of the said written real estate brokerage

agreement, paragraph 13, the parties acknowledged that upon notice the named broker

Colliers ABR Inc. would be succeeded by the plaintiff Cassidy Turley who then be
entitled to payment under the said written real estate brokerage agreement: written notice

of the change to Cassidy Turley was given to defendant on or about June 8, 2011.

5.

The

plaintiff Cassidy Turley, through its predecessor ABR, engaged in

hundreds of hours of hard negotiation by its associated broker agents, taking place over a
year time frame which resulted in consummation of the lease subject of the brokerage agreement aforesaid.

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of 10

6.

On or about February 2010 the delivery and execution of the lease

between the defendant landlord 127 West 25th and the tenant BRC with regard to the

building 127-l3I West 25th Street New York, New York legally and factually occurred.

7.

Although pursuant to the brokerage agreement aforesaid, upon lease

execution, the full commissionof $2,287,570 was due, the commission was to be paid in installments per brokerage agreement at paragraph 3 which states in substance:

a.

First installment in the amount of $400,000 due plaintiff on

completion of the tenant's initialfunding.

b.

Second installment in the amount of $500,000 due plaintiff

onrent

commencement as defined in the lease.

c.

The commission balance in the amount of $1,387,570 was to be

paid to plaintiffin equal monthly installments of $77,087.22 on first day of each month immediately following rent commencement.

d.
12, provides

In addition to the foregoing, the brokerage agreement at paragraph

plaintiffwith the right of acceleration if more than one time the

defendant defaults in payment of any installment which continues for 30 days after notice.

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of 10

AS AI[D FOR A FIRST CAUSE OF ACTION (Breach of Contract)

8.

In fulfillment of the condition precedent under the written brokerage

agreement (paragraphs

and 2) as aforesaid, the

full commission due the plaintiffof

$2,287,570 was eamed. To wit, execution of a binding lease between defendant landlord
and tenant did legally and factually occur on or about February 2010 as aforesaid.

9.
initialfunding

On or about October 2010 as memorialized in the executed second

amendment of the subject lease, the tenant BRC completed its payment of the tenant's
hence the first installment of the commission in the amount of $400,000

was due to be paid

plaintiff

10.

The

plaintiff Cassidy Turley and/or its predecessor ABR having received

no payment as otherwise due on the first installment of $400,000, written notice of past
due demand was sent to defendant on or about December 2010 and againon or about

January

20Il: notwithstanding past due written

demands, no payment has been received

by plaintiffor its predecessor to the date hereof.

11.
due to be paid

Whereas, under the subject brokerage agreement the second installment

plaintiff in the amount of $500,000 occurred onrent commencement "as

defined in the lease": The said lease definingrent commencement as the date following the end of the rent abatement period. Apropos, the second amendment of the lease dated

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October 4,2010, the rent abatement period ended on January 31,2011. Therefore, rent commencement as defined in the lease occurred as of February 1,2011. Hence, the
second installment of the commission in the amount of $500,000 became due for

payment to plaintiff on February

l,20ll.

12.

The plaintiffCassidy Turley and/or its predecessor ABR having received

no payment on either the first or second installment of the real estate brokerage commission due as aforesaid, both installments being otherwise due on or after February

l,20ll:

written demand for past due payment was thus sent by plaintiff on or about April

l9,20ll and again on or about June 8, 2011, demanding payment of both installments.
No part of which has been paid by defendant to the date hereof.

13.

As aforesaid in this Complaint at Paragraph 7 (d): the written real estate

brokerage agreement between the parties contains an acceleration provision at brokerage

agreement paragraph 12, wherein

if more than one time defendant defaults in payment of

any installment due, and default continues for 30 days after notice, the plaintiffhas the

right to accelerate the full balance of the commission.

14.

As aforesaid in this Complaint at Paragraph 12: written notice of demand

for payment was sent by plaintiff to defendant on or about April 19, 2011, and again on
or about June 8, 2011, demanding payment of both past due installments, no part

of

which has been paid by defendant to the date hereof.

Page 5

of 10

15.

In accord with the acceleration provision of the written real estate

brokerage agreement atparugraph 12: in addition to the first installment in the amount

of

$400,000 being due plaintiff and the second installment in the amount of $500,000 also being due plaintiff, there is finally due plaintiff under the written brokerage agreement aforesaid, the full remaining balance of the commission in the amount of $1,387,570,no part of which has been paid by defendant.

16.
plaintiff

That by reason ofthe foregoing breach ofcontract by defendant, the

has been damaged in the amount

of $2,2871570 ($400,000 + 9599,000 +

$1,387,570) plus contract interest as agreed per paragraphs 8 and

l2 of the said written

brokerage agreement or such other or greater amount as may be proven at atnal of this action.

AS AND FOR A SECOND CAUSE OF ACTION (Reas onabl e Attorney's Fees)

17.

The

plaintiff repeats and re-alleges Paragraphs 1 through

16 of this

Complaint as if fully set forth herein.

18.

Paragraph 10 of the written real estate brokerage agreement between the

parties as aforesaid provides that the prevailing party shall be entitled to recover reasonable attorney's fe e s, costs and expenses.

Page 6

of

10

19.

That therefore upon the plaintiffobtaining judgment against defendant, the

seeks the court to determine the reasonable attomey's fees, costs and

plaintiff further

expenses also due

plaintiff from defendant in in accord with the agreement between the

parties as aforesaid.

AS AND F'OR A THIRD CAUSE OF ACTION (Order Directing Payment to Broker by Tenant as Agreed and Consented by Defendant)

20.

The plaintiffrepeats and re-alleges Paragraphs

I through

16 of this

Complaint as if fully set forth herein.

21.

Pursuant to the terms of the written real estate brokerage agreement

between the parties aforesaid at paragraph 8,

it further

states that in the event any

payment due the plaintiffis not paid within thirty (30) days after notice of non-payment, the defendant agreed and consented in the written brokerage agreement as aforesaid, that the tenant BRC can pay the plaintiff the unpaid brokerage commission with entitlement

to a rent abatement where a court of competent jurisdiction in a non-appealable order

decides and directs.

22.

Therefore, upon the plaintiff obtaining

judgment against the defendant

on the first cause of action or for any portion of the commission found by the court to be

Page 7

of l0

due plaintiff, the

plaintiff hereby

seeks such further order from the court which shall be

part of any judgment rendered against defendant, entitling the tenant BRC to rent
abatement for any monies

it shall pay over to the plaintiffin satisfaction of any monetary

judgment against the defendant arising out of this action.

WHEREFORE, the plaintiffdemands judgment as follows:

1.

On the First Cause of Action, Judgment in the Amount of $2,287,570

(Two Million Two Hundred Eighty Seven Thousand Five Hundred Seventy Dollars) plus
contract interest pursuant to the written brokerage agreement or such other or greater amount as may be proven at a trial of this action.

2.

On the Second Cause of Action, reasonable attorney's fees, costs and

expenses as determined by the Court in accord with the agreement between the parties.

3.

On the Third Cause of Action, a further order of the court which shall be

part of any judgment rendered against defendant, entitling the tenant BRC to rent
abatement for any monies

it shall pay over to the plaintiff in satisfaction of any monetary

judgment against the defendant arising out of this action.

4.

Statutory judgment interest.

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of 10

5.

Such other and further relief as may be just and proper.

Dated: New Yorlg New York July 14,2011

CHESTER LLP

By: Michael

S. Cole, Esq.

7 67 ThfudAvenue - 24th Floor New Yorlg New York 10017 Tel: (212) 599-1s35

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