230 Park Avenue Holdco, LLC, Appellant,v.Kurzman Karelsen & Frank, LLP, et al., Respondents.BriefN.Y.March 22, 2016To be Argued by: JAY B. SOLOMON (Time Requested: 30 Minutes) APL-2015-00161 New York County Clerk’s Index No. 653178/11 Court of Appeals of the State of New York 230 PARK AVENUE HOLDCO, LLC, Appellant, – against – KURZMAN KARELSEN & FRANK, LLP, STANLEY E. MARGOLIES, PETER G. GOODMAN, PHYLLIS H. WEISBERG, DEIRDRE A. CARSON, ISAAC A. SAUFER, RICHARD E. MILLER, LOUIS I. NEWMAN, JOSEPH F. SEMINARA, ERNEST L. BIAL, M. DAVIS JOHNSON a/k/a MALCOM DAVIS JOHNSON JR., MICHAEL P. GRAFF, and JULIET KARELSEN and EVA KARELSEN, as Co-Executors of the Estate of Frank E. Karelsen, III, deceased, Respondents. REPLY BRIEF FOR APPELLANT KLEIN & SOLOMON, LLP Attorneys for Appellant 275 Madison Avenue, 11th Floor New York, New York 10016 Tel.: (212) 661-9400 Fax: (212) 661-6606 Date Completed: September 10, 2015 I TABLE OF CONTENTS TABLE OF CONTENTS .............................................................................................. I TABLE OF AUTHORITIES ...................................................................................... II PRELIMINARY STATEMENT ................................................................................ 1 ARGUMENT .................................................................................................................. 7 POINT I ................................................................................................................ 7 230 PARK DID NOT BREACH RGE THE STIPULATION ... 7 POINT II............................................................................................................. 15 THE STIPULATION DID NOT CONFER A RIGHT .............. 15 POINT III………………………………………………………………………21 THERE ARE NO MATERIAL ISSUES OF FACT REGARDING 230 PARK’S ALLEGED BREACH OF THE STIPULATION; THEREFORE, THE MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED ............................................................................................ 21 POINT IV ........................................................................................................... 33 LANDLORD IS ENTITLED TO A REMAND DIRECTING THE ENTRY OF A MONEY JUDGMENT ON THE RECORD HEREIN ............................................................................. 33 CONCLUSION ............................................................................................................ 37 II TABLE OF AUTHORITIES Cases Adelsberg v. Amron, 103 A.D.3d 571, 572 (1st Dep’t 2013) ........................ 10 American Bartenders School, Inc. v. 105 Madison Co., 91 A.D.2d 901 (1st Dep’t 1983) ................................................................................................ 30 Bartenders School, Inc. v. 105 Madison Co., 59 N.Y.2d 716, 463 N.Y.S.2d 424 (1983) ........................................................................................... 29, 31 Bazin et al. v. Walsam 240 Owner, LLC, 72 A.D.3d 190, 195 (1st Dep’t 2010) ................................................................................................................... 11 China Privatization Fund (Del), L.P. v. Galaxy Entertainment Group Ltd., 95 A.D.3d 769, 770 (1st Dep’t 2012) ......................................................... 19 Eugenia VI Venture Holdings, Ltd. V. AMC Investors, LLC, 35 A.D.3d 157 (1st Dep't 2006) .......................................................................................... 34 Freedman v. Chemical Constr. Corp., 43 N.Y.2d 260, 264 (1977) ............. 23 Frierson v. Concourse Plaza Assocs., 189 A.D.2d 609, 610 (1st Dep’t 1993) ................................................................................................................... 33 Greenfield v. Philles Records, 98 N.Y.2d 562, 569 (2002) .................... 17, 19 Holy Properties, Ltd. L.P. v. Kenneth Cole Productions, Inc., 87 N.Y.2d 130, 133-34 (1995) ............................................................................................... 7 IBE Trade Corp. v. Litvinenko, 16 A.D.3d 132 (1st Dep’t 2005) ................. 34 Jefpaul Garage Corp. v. Presbyterian Hosp. in City of N.Y., 61 N.Y.2d 442, 446 (1984) .................................................................................................. 16 Mallad Constr. Corp. v. County Fed. S&L Ass'n, 32 N.Y.2d 285, 290 (1973) ................................................................................................................... 23 Monno v. Owusu, 232 A.D.2d 461 (2nd Dep’t 1996) .................................... 32 Natt v. White Sands Condo., 95 A.D.3d 848, 849 (2nd Dep’t 2012) ............. 19 III Rowe v. Great Atlantic & Pacific Tea Company, et al., 46 N.Y.2d 62, 72 (1978) ........................................................................................................ 11 South Road Associates, LLC v. International Business Machines Corporation, 4 N.Y.3d 272, 278 (2005) ................................................... 17 Steinberg v. Abdul, 230 A.D.2d 633 (1st Dep’t 1996) .................................. 32 Sutton v. East River Sav. Bank, 55 N.Y.2d 550, 555 (1982) .................... 9, 10 Vermont Teddy Bear Co., Inc. v. 538 Madison Realty Company, 1 N.Y.3d 470, 475 (2004) ................................................................................... 10, 11 Statutes CPLR 3212 [f]............................................................................................... 32 1 PRELIMINARY STATEMENT Plaintiff-Appellant, 230 Park Avenue Holdco, LLC (“230 Park” or the “Landlord”), by its attorneys, Klein & Solomon, LLP, respectfully submits this Reply Brief in further support of its appeal from the order of the Appellate Division, First Department, entered on January 6, 2015 (the “Appellate Division Order”), which affirmed the order of the Supreme Court, County of New York (Coin, ASCJ), entered May 1, 2013 (the “Supreme Court Order”), with two Justices of the Appellate Division dissenting. Leave to appeal to the Court of Appeals was granted by the Appellate Division by Order dated May 7, 2015. The Appellate Division Order affirmed the Supreme Court Order, which denied 230 Park’s motion for summary judgment against the Respondents Kurzman, Karelsen, & Frank, LLP (“Kurzman” or the “Tenant” and together with the Respondent-Guarantors, the “Respondents”). For the reasons discussed herein and in 230 Park’s Appellant’s Brief, dated July 10, 2015 (“230 Park’s Appellant’s Brief”), the Court should reverse and/or modify the portion of the Appellate Division Order and the Supreme Court Order that denied summary judgment to 230 Park on the grounds that (a) there was no undertaking by the Landlord to mitigate its damages under the terms of the so-ordered Stipulation of Settlement (the “Stipulation”) entered into between Kurzman and 230 Park, settling the 2 summary proceeding in the Civil Court of the City of New York, New York County under L&T Index No. 76749/2011, and (b) the Landlord was within its rights to request that the improper sublease advertisement posted by Kurzman before its default be removed from a listing agency’s Website after the Tenant’s occupancy rights were terminated by the Stipulation. Respondents concede in their Brief that there was no undertaking by the Landlord in the Stipulation to mitigate its damages; nor do they contest that the Landlord was within its rights to request that the sublease advertisement be removed from the listing agency’s Website after the Tenant’s occupancy rights were terminated by the Stipulation. It is undisputed that as a commercial landlord, 230 Park had no duty to mitigate its damages under common law and under the express provisions of the Lease.1 Having no basis in fact or law to impose such a duty to mitigate damages on 230 Park, the Respondents resort to exaggeration and pure fabrication of the facts of this case. When stripped of the red herring issues, the Respondents’ meritless argument boils down to an alleged breach of the Stipulation, based upon a clause that did not impose a duty upon 230 Park to 1 Capitalized terms in this Reply Brief, unless otherwise indicated, are defined in 230 Park Appellant’s Brief. 3 mitigate its damages, or confer a right to Kurzman to advertise its formerly leased premises for a subtenancy. Respondents’ entire narrative is false from the beginning to end. The Landlord never “[d]eparted from decades of past practice in which Landlord accepted payment of real estate tax escalation pass-alongs in monthly installments” or “pressure[d] Kurzman to give up the leasehold prematurely” (Respondents’ Brief at 22). There is not one scintilla of evidence in the record to support either fabrication. Indeed, in the multitude of letters from Kurzman to Landlord’s counsel, objecting to the real estate tax billing, there is no mention of this purported longstanding practice of paying the real estate taxes in monthly installments. [R:183-211]. 2 Furthermore, no landlord prefers vacant, nonperforming space to a paying tenant, even if the tenant’s lease is below market. Moreover, such an alleged practice of accepting payment of real estate tax escalation pass-alongs in monthly installments is untrue, and would have been unenforceable, as the Lease contains a merger clause and no modification provision [Lease Article 54 at R:99], which states that the parties cannot rely on any alleged agreements or representations other than those contained in the Lease, and a 2 References to the Record on Appeal are noted as “[R:_].” 4 no-waiver provision [Lease Article 27 at R:68-69], which obligated Kurzman to pay its rent in accordance with the express terms of the Lease. Respondents cowardly blame Landlord for the choices they made - - signing a new lease and abandoning the Premises over a year before the Lease expired, relying on a feigned “surrender by operation of law” defense that has now been rejected by the two lower courts. Kurzman is left with only its contrived argument that Landlord breached the parties’ Stipulation by demanding that a listing agency remove a bogus sublease advertisement, when it did nothing else during the remaining fifteen months of the Lease term to locate or offer a new tenant to Landlord. Now, in its brief, Kurzman has the gall to insult the Court’s intelligence by characterizing its October 3, 2011, post-settlement letter as a “demand letter” to which Landlord’s counsel, no longer engaged in litigation with Kurzman, did not respond [R: 220]. The October 3, 2011 letter made no demands, at all. Rather, the letter merely set forth the self-serving, fabricated reasons why Kurzman claimed it was no longer liable for the payment of rent under the terms of the Lease. Respondents’ baseless characterization of the letter as a “demand” that required a response, and its reliance on this letter to falsely claim that 230 Park interfered with its 5 purported right to find a new tenant for the Premises are clear examples of Respondents’ propensity to play “fast and loose” with the facts.3 Likewise, Respondents continue to fabricate their story about Tenant’s “reliance upon the final sentence of paragraph 8 in agreeing to prematurely terminate its leasehold and its right to sublet” (Respondents’ Brief at 31). The reality is that the Stipulation was executed on August 22, 2011, based upon Kurzman’s default in paying rent, presumably because it had signed a new lease for other space, and intended to abandon the Premises at the end of August 2011. By July 18, 2011, Kurzman entered into a lease for other premises for a term that began on September 1, 2011, and announced that it was breaking the Lease and vacating the Premises. Kurzman had no right to sublease the Premises after it signed the Stipulation on August 22, 2011. [R: 132-36]. Similarly, Respondents falsely contend, without any support in the record, that they placed a listing with CoStar, advertising the Premises for “rent” (Respondents’ Brief at 37), when the CoStar listing was admittedly and expressly for an unauthorized sublease. Respondents concoct a storyline that “Landlord was not making the space available for 3 Had the October 3, 2011 letter requested assistance, assistance would have been provided. To the contrary, the letter merely stated Kurzman’s position that it no longer was required to pay rent, relying first and foremost on its feigned “surrender by operation of law” defense. 6 prospective new tenants,” (id.) when, in actuality, the Premises were being cleaned and positioned for marketing in the days after Kurzman vacated. Further, with no proof in the record, Respondents claim that “Landlord refused requests of CBRE for access to the premises to show to prospective tenants” (id.) and that “Landlord made it impossible for Kurzman’s broker to market the space by refusing CBRE’s normal professional request for reasonable access to the premises to show it to prospective tenants” (Respondents’ Brief at 41). Again, Respondents have not a scintilla of evidence to support these bald allegations. Ultimately, Respondents reveal their game plan of unmitigated speculation when they brazenly state that “the most likely inference to make from this record is that Landlord warehoused the Premises” (Respondents’ Brief at 38). In the end, no amount of speculation, factual concoction and fabricated assertions can hide the fact that 230 Park had no duty to mitigate its damages under the Lease, the Stipulation created no contractual right for Kurzman to locate a tenant, and 230 Park did not interfere with any purported effort by Kurzman to locate a new tenant. Accordingly, as detailed in the 230 Park Appellant’s Brief, and for the reasons that follow, 230 Park’s appeal should be granted, and the Appellate Division Order and Supreme Court Order should be reversed and/or 7 modified to dismiss Respondents’ third affirmative defense, grant summary judgment to 230 Park on its complaint, and remand the case to the Supreme Court for (i) entry of a money judgment against Kurzman in the sum of $872,880.12, with interest; (ii) entry of a money judgment against the Respondent Guarantors in the sum of $200,000.00, with interest; and (iii) a hearing to determine the amount of legal fees and expenses owed by the Respondents to 230 Park pursuant to the terms of the lease and lease guarantee. ARGUMENT POINT I 230 PARK DID NOT BREACH THE STIPULATION As discussed in 230 Park’s Appellant’s Brief, once Kurzman abandoned the Premises, 230 Park was then within its rights “to do nothing and collect the full rent due under the lease.” Holy Properties, Ltd. L.P. v. Kenneth Cole Productions, Inc., 87 N.Y.2d 130, 133-34 (1995). Indeed, Article 5 of the Lease also expressly provides that the Landlord had no duty to mitigate damages in the event of a default by Tenant. [R: 65]. Realizing this insurmountable legal hurdle, and conceding the futility of its “surrender by operation of law” argument, Respondents rely solely on a manufactured legal theory, contending that their defense is not based on a duty to relet, but rather “upon Landlord’s breach of its specific contract agreement” to allow Kurzman, 8 after abandoning the Premises, to market the space to new tenants, and that Landlord breached a purported promise to consider new tenants in good faith.” (Respondents’ Brief at 19). Respondents’ contentions are entirely baseless. The Stipulation did not create an affirmative duty on 230 Park to do anything in regard to reletting the Premises, and there is no fair construction of the Stipulation that indicates the parties intended to modify the express terms of Lease Article 5. The Stipulation provides at paragraph 8 as follows: Respondent [Kurzman] shall be prohibited from subletting or assigning any of its rights or interests under the Lease or under this Stipulation throughout the stay of the warrant of eviction hereunder. Notwithstanding anything herein to the contrary, nothing herein shall prohibit Respondent from locating and/or offering to Petitioner [230 Park] a potential tenant for the Premises, subject to Petitioner’s approval of any such prospective tenant. [R: 214 - 15 at ¶ 8] (emphasis added). The clear and express language of the Stipulation, that while Kurzman was precluded from assigning the Lease or subletting the Premises, nothing in the Stipulation would prohibit Kurzman from locating and/or offering to 230 Park a potential tenant, does not express a legal right or create a duty upon 230 Park to change the manner in which it customarily markets vacant space for leasing. The sentence does no more than articulate a common practice, where a defaulting tenant tries to 9 minimize its monetary obligations by locating a new tenant, subject entirely to the Landlord’s acceptance and approval. Nothing contained in the Stipulation provided that 230 Park was required to take any affirmative steps to assist Kurzman in locating a potential tenant. Nothing contained in the Stipulation states that 230 Park voluntarily assumed any duty with respect to Kurzman locating a potential tenant. Nothing contained in the Stipulation gave Kurzman the right to impose a new tenant on 230 Park. The subject statement merely clarified the prior sentence and stated the obvious, that 230 Park would not turn away a prospective tenant just because it was located or offered by Kurzman. Employing a practical interpretation of the language used by the parties so that there may be a realization of their “reasonable expectations,” Sutton v. East River Sav. Bank, 55 N.Y.2d 550, 555 (1982), it is apparent that paragraph 8 of the Stipulation is written in a permissive, hypothetical tense, and not a mandatory one. That is to say, paragraph 8 provides that the Tenant may look for a prospective tenant, not subtenant, for the Landlord to consider. The paragraph does not, however, impose upon 230 Park a duty to make a good faith effort to mitigate its damages following the premature vacatur by Tenant, or to accept any new tenant that Kurzman might offer. Respondents cannot point to any express language in the Stipulation 10 requiring 230 Park to relet the subject premises or undertake any other efforts to mitigate its damages. As 230 Park is not required by either the law or the Stipulation to mitigate its damages, it is of little moment that 230 Park acknowledged that Tenant was not prohibited by the Stipulation from trying to locate and/or offer a new tenant. Respondents’ argument misconstrues the Stipulation. The provision does not give Kurzman any right to impose a new tenant on 230 Park. “A stipulation is an independent contract which is subject to the principles of contract law.” Adelsberg v. Amron, 103 A.D.3d 571, 572 (1st Dep’t 2013). The words of a stipulation, like those of any other contract, must be accorded their fair and reasonable meaning. Sutton v. East Riv. Sav. Bank, supra. Thus, in examining the interplay between the language of the first sentence of Paragraph 8 of the Stipulation and that of its second sentence, the Court should follow its mandate that “[w]hen interpreting contracts, . . . when parties set down their agreement in a clear, complete document, their writing should . . . be enforced according to its terms," particularly in the context of real property transactions, "where commercial certainty is a paramount concern, and where . . . the instrument was negotiated between sophisticated, counseled business people negotiating at arm's length," and that "courts may not by construction add or excise terms, 11 nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing.” Vermont Teddy Bear Co., Inc. v. 538 Madison Realty Company, 1 N.Y.3d 470, 475 (2004) (citations and internal quotation marks omitted). Respondents’ interpretation, that the Stipulation created a right to Kurzman to compel the Landlord to facilitate Kurzman’s effort to locate a new tenant for the Premises, is not a reasonable interpretation. It is well settled that “the courts should be extremely reluctant to interpret an agreement as impliedly stating something which the parties have neglected to specifically include.” Rowe v. Great Atlantic & Pacific Tea Company, et al., 46 N.Y.2d 62, 72 (1978). As this Court has previously declared, “such lack of foresight does not create rights or obligations.” Rowe v. Great Atlantic & Pacific Tea Company, Inc., et al., supra, quoting Mutual Life Ins. Co. of N. Y. v. Tailored Woman, 309 N.Y. 248, 253 (1955).4 Clearly constrained by the express language of the Stipulation, 4 Respondents’ reliance on Muzak Corp. v. Hotel Taft Corp., 1 N.Y.2d 42 (1956) and 150 Broadway N.Y. Assoc., L.P. v. Bodner, 14 A.D.3d 1 (1st Dep’t 2004) for their noncontroversial principals of contract interpretation is misplaced. (Respondents’ Brief at 28-30). No one disputes that it is a “cardinal rule of contract interpretation that a court should avoid an interpretation which leaves a contractual cause meaningless.” Id. However, “courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing.” Bazin et al. v. Walsam 240 Owner, LLC, 72 A.D.3d 190, 195 (1st Dep’t 2010), quoting Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d 470, 475 (2004). Further, as demonstrated above and in 230 Park’s Brief, Appellant’s reasonable interpretation of the express language of the Stipulation does not leave any words or render any clauses meaningless. 12 Respondents claim that the “additional refutation [of Landlord’s argument] is provided by examination of the structure and context of the Stipulation, including the valuable consideration that Landlord received and Kurzman’s reliance upon Landlord’s promises.” (Respondents’ Brief at 21). Yet, Respondents’ claims are unsupported in the Record and could not be further from the truth. There is no support in the Record of any alleged “valuable consideration” received by the Landlord. In fact, no landlord prefers vacant, nonperforming space to a paying tenant, even if the tenant’s lease is below market. In this regard, Respondents’ purported claim that, prior to Kurzman’s execution of the Stipulation, dated August 22, 2011, it was in a strong legal and market position to avoid any post-occupancy rent liability, is both unsupported and entirely false. (Id.). In fact, no one disputes that until the Stipulation was signed on August 22, 2011, Kurzman had rights to sublease or assign, subject to the Landlord’s consent, which could not be unreasonably withheld or delayed [Lease Art. 53(D) at R: 96] Prior to its default and the subsequent termination of its occupancy rights under the Stipulation, Kurzman was permitted by the Lease to offer the Premises for sublease. Post-Stipulation, it was not permitted to sublease. Further, contrary to Respondents’ contention that Tenant could afford to pay the entirety of its rent obligation (Respondents’ Brief at 22), the 13 fact remains that Kurzman defaulted in paying additional rent in July 2011, and the Landlord served a rent demand notice on Kurzman. [R: 180-82]. Shortly thereafter, the L&T Proceeding was commenced. Then, on August 22, 2011, the Stipulation was signed settling the L&T Proceeding by (a) converting it into a holdover proceeding [¶ 3, R: 212-13]; (b) granting a final judgment of possession and the immediate issuance of a warrant of eviction to the Landlord [¶ 5, R: 213], thereby terminating the landlord-tenant relationship under the Lease; and (c) requiring Kurzman to vacate the Premises by September 1, 2011 [¶ 6, Id.]. After the Stipulation was signed, Kurzman no longer had any right, under the Stipulation [¶ 8, R: 214], or under the Lease [¶ 53 (D), R: 96], to offer the Premises for sublease. Respondents also rely on the Appellate Term’s decision in Salvia v. Dyer, 1 Misc. 3d 140(A), 875 N.Y.S.2d 823 (App. Term. 2d Dep’t 2008), for the principal that once a landlord affirmatively undertakes a duty to mitigate, that it is obligated to do so. (Respondents’ Brief at 25-26). However, while Respondents cite the holding of Salvia, they fail to disclose the reasoning behind the decision. Salvia arose out of a small claims decision, dismissing a residential landlord’s claims for unpaid rent. In that case, after tenant gave notice that it was vacating the residence before the expiration of the lease, the parties entered into a relet agreement, under 14 which the landlord undertook responsibility to advertise and show the unit, while the tenant continued to pay rent. Id. However, instead of advertising the unit, the landlord made repairs to the unit and failed to advertise the unit for approximately four months. Under those circumstances, the Appellate Term held that the landlord violated the relet agreement, holding, “once plaintiff affirmatively undertook to relet the apartment on defendants' account, he was obligated to comply with the agreement and to do so in a timely fashion. The relet agreement . . . required plaintiff to advertise and show the unit, and, as the court below noted and the testimony indicates, plaintiff failed to do so…” Id. No such obligation was undertaken here by 230 Park, a fact which is acknowledged by Respondents in their Brief. (See Respondents’ Brief at 25-26). Yet, without explanation or support, Respondents attempt to foster the holding of Salvia onto the present issue. Such attempt fails, however, because, 230 Park undertook no duty in the Stipulation, including no duty to mitigate its damages or any obligation to facilitate Tenant’s desire to locate a new tenant. Accordingly, the Stipulation did not impose any duty upon the Landlord or grant any right to Kurzman. Therefore, there was no breach of the Stipulation by 230 Park. 15 POINT II THE STIPULATION DID NOT CONFER A RIGHT TO KURZMAN TO LOCATE A NEW TENANT According to Respondents’ fictitious version of the facts, the Stipulation granted Kurzman a right to locate a new tenant, and 230 Park hindered that alleged right. This is not true. The Stipulation did not create such a right, and no such right exists at law. The Stipulation provides at paragraph 8 as follows: Respondent [Kurzman] shall be prohibited from subletting or assigning any of its rights or interests under the Lease or under this Stipulation throughout the stay of the warrant of eviction hereunder. Notwithstanding anything herein to the contrary, nothing herein shall prohibit Respondent from locating and/or offering to Petitioner [230 Park] a potential tenant for the Premises, subject to Petitioner’s approval of any such prospective tenant. [R: 214 - 215 at ¶ 8 (emphasis added)]. The clear and express language of the Stipulation, that nothing in the express terms of the Stipulation prohibited Kurzman from locating and/or offering to 230 Park a potential tenant, are merely words of clarification and impart no duty upon 230 Park or any right upon Kurzman to locate or offer a new tenant for the Premises. The sentence does no more than clarify the preceding sentence prohibiting subletting or assignment, while articulating a common practice, where a 16 defaulting tenant tries to minimize its monetary obligations by locating a new tenant, subject to the landlord’s approval. The language of the Stipulation merely acknowledges that Kurzman may search for a prospective tenant, and may present that tenant to 230 Park. Ultimately, even if Kurzman located a potential tenant, that tenant would still be subject to 230 Park’s unfettered approval.5 Since there was no obligation on 230 Park to accept any potential new tenant located or offered by Kurzman, there was no right conferred upon Kurzman to locate or offer a new tenant for the Premises. A contrary interpretation of paragraph 8 of the Stipulation would abrogate 230 Park’s right to lease the Premises to whomever it chooses, in its unfettered discretion. In other words, the provision would have to constitute a waiver on 230 Park’s part to exercise unfettered control over the leasing of its building. As the Court has held: "A waiver is the voluntary abandonment or relinquishment of a known right" Jefpaul Garage Corp. v. Presbyterian Hosp. in City of N.Y., 61 N.Y.2d 442, 446 (1984). In the Stipulation, the Landlord expressly reserved all of its rights and remedies. Those rights include the 5 An analogy can be drawn from a standard sublet or assignment clause in a commercial lease. If the provision does not provide that the landlord’s consent cannot be unreasonably withheld, the landlord can reject any and all requests for from its tenant to sublet or assign the lease. Filmways, Inc. v. 477 Madison Avenue, Inc., 30 N.Y.2d 597, 602 (1972), quoting Dress Shirt Sales v. Hotel Martinique Assoc., 12 N.Y.2d 339, 342 (1963). Such clauses impose no duty upon the landlord or any right upon the tenant. 17 unfettered right to control the leasing of its building, and the right under New York law to do nothing and collect the full rent from Kurzman due under the Lease. Holy Properties, Ltd. L.P. v. Kenneth Cole Productions, Inc., supra, 87 N.Y.2d at 133-34. Without any support in the record, Kurzman baldly declares: “The sentence, however, was a critical consideration for Kurzman to enter into the Stipulation and relinquish its leasehold rights and occupancy.” (Respondents’ Brief at 28). The declaration is pure nonsense and is belied by the express terms of the Stipulation. Kurzman cites to no support in the record for this self-serving assertion of its communal mental processes, which, in any event, constitute parol evidence preluded by paragraph 14 of the Stipulation [R: 135-36], and by the long established principal of contract construction that such extrinsic and parol evidence may not be considered unless the document itself is ambiguous. South Road Associates, LLC v. International Business Machines Corporation, 4 N.Y.3d 272, 278 (2005), citing Greenfield v. Philles Records, 98 N.Y.2d 562, 569 (2002). The record, in fact, reveals the utter lack of any effort on Kurzman’s part to locate or offer a new tenant. Instead, as of October 3, 2011, just one month after it abandoned the Premises, Kurzman solidified its position that it intended to pay no further rent to 230 Park. [R:220]. Resting primarily 18 on its spurious defense that Landlord accepted a surrender of the Lease by operation of law, after it received the October 2011 rent statement from Katherine DeJesus of Monday Properties, it added the bogus claim that the Landlord’s request to CoStar to remove the improper sublease advertisement constituted a breach of the Stipulation, further relieving Kurzman from any obligation to pay the rent due under the Lease [R: 220]. That October 3, 2011 letter did not request a response, or ask for assistance or seek to resolve any purported issue. The letter was arrogant posturing – chest beating by sophisticated attorneys who were bent on avoiding their contractual obligation to pay rent to 230 Park pursuant to the terms of the Lease. Thus, paragraph 8 of the Stipulation relied upon by the courts below, which conferred no rights on Kurzman and no duty upon Landlord, does not otherwise lack any meaning or purpose. When read in conjunction with the prior sentence, which prohibited Kurzman from subletting or assigning the Lease, the sentence merely clarified that the ban on subletting and assigning expressly stated in the paragraph would not prevent Kurzman from trying to find a suitable new tenant, subject to the Landlord’s unfettered discretion. [R: 214-15]. While this provision may have provided Kurzman with clarification and perhaps an incentive to help find a new tenant for the Premises, it created no right to Kurzman to do so, or any obligation on the 19 Landlord to do anything, including accepting whomever Kurzman could locate or offer, if the prospective tenant did not suit the Landlord’s standards. Furthermore, Respondents fail to point to anywhere in the record showing that the Landlord interfered with its effort to locate a prospective tenant. On the contrary, the evidence was abundantly clear that Kurzman took no affirmative steps to locate a prospective tenant after entering into the Stipulation, but merely relied on a prior listing for a sublease, which was no longer permitted or appropriate. Respondents’ last gasp for air is their contention that the clause was ambiguous and therefore summary judgment was properly denied. (Respondents’ Brief at 30-33). However, it is well settled that “[c]ontract language is ambiguous only when it is “reasonably susceptible of more than one interpretation” . . . “and there is nothing to indicate which meaning is intended, or where there is contradictory or necessarily inconsistent language in different portions of the instrument.” Natt v. White Sands Condo., 95 A.D.3d 848, 849 (2nd Dep’t 2012). On the other hand, an agreement is unambiguous if the language used “has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion.” China Privatization Fund (Del), L.P. v. Galaxy 20 Entertainment Group Ltd., 95 A.D.3d 769, 770 (1st Dep’t 2012). Further, “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.” Greenfield v. Philles Records, 98 N.Y.2d 562, 569 (2002); China Privatization Fund (Del), L.P. v. Galaxy Entm’t Group Ltd., supra. Simply put, a provision is not ambiguous simply because the parties disagree as to its construction or urge alternative interpretations. Id. There are no ambiguous terms in the Stipulation. Respondents’ suggestions regarding the formation of the Stipulation, contract, intentions, reasonable expectations when entering the Stipulation, and Kurzman’s alleged reliance upon the final sentence of Paragraph 8 of the Stipulation are all inapposite and precluded by paragraph 14 of the Stipulation [R:135-36]. (Respondents’ Brief at 30-31). Here, Respondents have not set forth anything more than the mere hope that additional evidence is necessary to resolve a non-existent ambiguity. Moreover, Respondents neglect to inform the Court that the parties did engage in extensive discovery, including the production of hundreds of pages of documents, turned over to Respondents prior to the summary judgment motion. Kurzman’s request for additional evidence to resolve a non-ambiguity is a feeble attempt to create an issue of fact sufficient to deny summary judgment, and should be given no credence 21 by the Court. Accordingly, for the reasons set forth herein, and in the 230 Park Appellant’s Brief, the appeal should be granted. POINT III THERE ARE NO MATERIAL ISSUES OF FACT REGARDING 230 PARK’S ALLEGED BREACH OF THE STIPULATION; THEREFORE, THE MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED A. Respondents Failed To Meet Their Burden of Proof. Respondents argue that material issues of fact exist as to whether 230 Park breached the Stipulation. (Respondents’ Brief at 33-45). However, as shown above, 230 Park did not breach the Stipulation. Respondents, without one scintilla of proof, argue that 230 Park prevented Kurzman from finding a prospective tenant for the Premises. Respondents point to three unsubstantiated allegations that they claim are incidences where 230 Park prevented Kurzman from finding a prospective tenant. Specifically, Respondents allege (1) 230 Park directed the removal of the improper subtenant listing from CoStar; (2) some unnamed person on some unnamed date allegedly hindered a broker engaged by Kurzman from showing the Premises to potential tenants in the days immediately following Kurzman’s departure; and (3) Landlord’s attorney’s “failure” to respond to 22 Kurzman’s October 3, 2011 letter, disputing that post-departure rent was due under the Lease, after the L&T Proceeding was settled and disposed. (Respondents’ Brief at 36-43). However, Respondents do not provide any credible evidence that 230 Park improperly prevented and/or hindered Kurzman from trying to find a prospective new tenant, or from attempting to show the space to anyone. With respect to the removal of the CoStar listing, the CoStar listing contained incorrect and improper information, to wit, it was advertising the Premises for a sublease. Kurzman had no right to sublet the Premises, either under the Stipulation, or under the Lease, as Kurzman was in default of the Lease, and the Lease was terminated by the Stipulation and the issuance of the Warrant of Eviction. See Stipulation, at ¶ 3 [R: 212 – 13]. Respondents allege that the letter written by Charles Palella, Esq., to Jay Solomon, Esq. [R: 220] is, in and of itself, sufficient to create a triable issue of fact. (see Respondents’ Brief at 41). This outlandish statement is belied by the fact that Mr. Palella’s letter is completely self- serving, is without any substantiation, and does not, in any manner, request assistance or ask for any explanation or intervention. As discussed above, the October 3, 2011 letter is a clear example of attorney posturing, based upon meritless legal theories and broad, generalized hearsay. It therefore 23 cannot serve to create a triable issue of fact to deny summary judgment. There is no specific allegation, supported by dates, times or circumstances, for which Mr. Palella has any personal knowledge with regard to the allegations in his letter, written just 30 days after Kurzman vacated the Premises. Moreover, there is no follow up correspondence of any kind that the purported problems persisted, or had not been resolved. As stated by the Court of Appeals: “[t]o defeat summary judgment the opponent must present evidentiary facts sufficient to raise a triable issue of fact, and averments merely stating conclusions, of fact or of law, are insufficient.” Mallad Constr. Corp. v. County Fed. S&L Ass'n, 32 N.Y.2d 285, 290 (1973); Freedman v. Chemical Constr. Corp., 43 N.Y.2d 260, 264 (1977). After denying any liability to pay rent, and reiterating Respondents’ “surrender by operation of law” defense, Mr. Palella’s letter concludes, in pertinent part, as follows: Paragraph 8 of that Stipulation specifically permits our firm to locate and offer to your client a prospective tenant for the premises. Despite this provision, Monday Properties, as agent for the Petitioner, has not only resisted the efforts of our broker to show the space but has also in fact caused Costar to remove the listing of the premises as placed by our broker. [R: 220]. To equate Palella’s letter as “proof,” unsupported by personal knowledge, was improper. The letter fails to allege how 230 Park’s agent, 24 Monday Properties, had resisted the efforts of Kurzman’s broker to show the Premises. Put into perspective, Palella’s letter is dubious. Kurzman was in possession of the Premises for some 80 years. It sent notice to 230 Park’s counsel on September 2, 2011, that it had vacated its full floor Premises. Commercial landlords customarily reposition valuable space for marketing by performing work, repairs, improvements and painting before offering the space for showing to prospective tenants. This work typically takes several weeks or more to perform. The record is utterly devoid of any evidence, other than Mr. Palella’s self-serving, unsubstantiated hearsay statement, that Monday Properties resisted any bona fide efforts of Kurzman’s broker or anyone else to show the space. Importantly, Kurzman does not even allege that it or its broker made any effort to market the space or locate a new tenant after September 2011, the month it abandoned the Premises. Because Mr. Palella’s October 3, 2011 letter [R: 220] lacks any evidentiary value, and did not request a response or assistance in resolving Kurzman’s feigned issue, the letter is immaterial, and is not sufficient to create an issue of fact to deny summary judgment. Additionally, Respondents’ characterization of the letter as a “demand letter” (Respondents’ Brief at 44) is downright intentionally misleading. The letter makes no demands of 230 Park, but rather, disputes that rent is due through 25 unsubstantiated, false allegations, and ends with a “reservation of rights” by Kurzman. The decision to not engage in a protracted back and forth letter writing campaign at 230 Park’s expense, after the L&T Proceeding was resolved, was prudent, and in no way constitutes an admission by 230 Park. Would a response letter stating: “No, you are wrong, all rights reserved” have enhance 230 Park’s position? As previously stated, Kurzman does not reference a single letter, email or telephone conversation from anyone with personal knowledge, supporting the “allegation” that 230 Park resisted their efforts to show the space. Even if Mr. Palella did not feel it appropriate to include this evidence in his October 3, 2011 letter [R: 220], then Mr. Unterman should have, at a minimum, submitted this evidence as part of his affidavit in opposition to the motion for summary judgment. Mr. Unterman repeats the same unsupported, hearsay allegation, that Monday resisted the efforts of CBRE, Kurzman’s broker, to show the 23rd floor, without any dates, names, circumstances or evidentiary support. [R: 158 at ¶ 83]. Mr. Unterman, despite introducing twenty-four (24) exhibits into the record, does not provide a single piece of evidence to support this bald assertion. Kurzman has not included in the record below an affidavit of a person with first-hand knowledge from CBRE or otherwise stating that CBRE even requested to show the Premises to a 26 prospective tenant, or if such request was made, what response it received. Additionally, there is no affidavit stating that Kurzman or CBRE were ever denied access to the Premises by anyone affiliated with 230 Park. Thus, Mr. Unterman’s statement is nothing more than unsubstantiated, self-serving hearsay. Mr. Unterman’s statement, no matter how forcefully stated, is not evidence, and is insufficient to create an issue of material fact to defeat summary judgment. The record is entirely devoid of any evidence that Kurzman even attempted to show the Premises, or made any effort to market the Premises, other than the improper and inaccurate sublease listing provided to CoStar before the Stipulation was executed. Tellingly, the record is devoid of any facts showing that Kurzman or its broker attempted to inquire about the inaccurate and improper CoStar listing, or change the contents of the listing to make it valid. Respondents argue that an email exchange between Monday Properties and CoStar, dated September 15, 2011 [R: 219], proves that 230 Park obstructed Kurzman’s efforts to find a perspective tenant for the Premises. (Respondents’ Brief at 40). This argument is also baseless. The CoStar listing was for a subtenant, not a new tenant. Indeed, the language of the email says “Pls remove the 23rd floor sublease listing. Thx.” [R: 219] If 27 Kurzman wanted to find a prospective tenant, then it was still free to do so, as neither 230 Park nor Monday Properties ever directed the removal of a proper listing for a new tenant. Further, the email exchange between CoStar and Monday Properties’ leasing director occurred two weeks after Kurzman gave notice that it vacated the Premises [R: 217]. 6 The leasing agents follow-up response to the CoStar broker’s inquiry about whether Kurzman vacated did not concern the sublease notice, but merely stated the obvious - - Monday Properties was not yet ready to show the space. Kurzman had occupied the space for more than 80 years. It was certainly appropriate for 230 Park’s agents to inspect the space, perform any remedial work, clean the space, make any desired improvements, and to perform customary prelisting work to ready the space for showing. There is no indication anywhere that 230 Park ever removed the Premises from the market. In fact, the very suggestion that 230 Park would “warehouse” the Premises, as Respondents allege, makes no business sense. (Respondents’ Brief at 43-45, 47). As 6 Any notion that Monday's September 15, 2011 email asking CoStar to remove the sublease listing raises an issue of fact is contrary to the actual facts. Having signed the Stipulation and relinquished its right to possession of the premises as of August 31, 2011, Kurzman could not have entered into a sublease on September 15, 2011 when Monday emailed CoStar. No sublease can give a sublessee greater rights than those afforded to its sublessor. Millicom Inc. v. Breed, Abbott & Morgan, 160 A.D.2d 496, 497 (1st Dep’t), app. denied, 76 N.Y.2d 703 (1990). 28 Respondents state throughout their Brief, its Lease was below market, and the Premises was desirable, first class office space. (Respondents’ Brief at 5- 6, 21-23). Additionally, the Respondents’ personal guarantees are limited to $200,000 in the aggregate, a sum far less than Kurzman’s rent arrears. Yet, Respondents would have the Court believe that 230 Park would remove premier office space from the market, in favor of enforcing a below market Lease against Kurzman and the limited Guarantors, instead of securing a new tenant at market rent. Certainly, if 230 Park could have leased the Premises sooner, it would have done so. Despite this common sense reasoning, Respondents argue, without proof and without any factual support at all, that 230 Park removed the Premises from the market, and inexplicably prevented Kurzman from finding a prospective tenant. (Id.). It strains common sense that 230 Park would have wanted premier office space to go unrented, so that it could potentially collect below market rental income, particularly, where, as here, the Lease guarantees are limited. Significantly absent from Respondents’ Brief is any reference to any evidence that that Kurzman, CoStar or CBRE ever followed up with Monday Properties or 230 Park, asking if the Premises can be properly listed, or access provided to show the Premises to a perspective tenant. Equally absent is any proof that Kurzman or CBRE took any steps to find a 29 prospective tenant. The evidence before the Motion Court was clear; Kurzman took no steps to market the Premises, other than the improper CoStar sublease listing, which it took no steps to correct. It was and is disingenuous for Kurzman to claim that 230 Park prevented it or its broker from listing the Premises, when Kurzman took no steps to actually find a prospective tenant. Accordingly, there were no material questions of fact regarding the Stipulation. 230 Park did not breach the Stipulation, and was entitled to summary judgment striking the Respondents’ third affirmative defense. B. Respondents’ Estoppel Argument Does Not Support Denying Summary Judgment Furthermore, the Motion Court correctly declined to consider Respondents’ arguments based upon the defense of equitable estoppel. Under the facts and circumstances of this case, equitable estoppel is not available to Respondents. (See Respondents’ Brief at 45-48). Respondents rely, in error, on the Court’s decision in American Bartenders School, Inc. v. 105 Madison Co., 59 N.Y.2d 716, 463 N.Y.S.2d 424 (1983), a case in which the Court declined to find the doctrine of equitable estoppel applicable. The facts of that case, as stated by the Appellate Division, were that tenant and landlord orally agreed that tenant would surrender a portion of its space and that landlord would lease the area 30 in question to a third party. Although landlord prepared a draft lease modification, and the tenant signed it, the building was sold in the interim, and the new owner refused to execute the modification. Tenant commenced an action for specific performance of the lease modification, contending that it relied on the assurances made by the prior landlord that it would be permitted to reduce the size of its premises and associated expenses. The new landlord relied on the Statute of Frauds, asserting that the lease modification was not signed by the party to be charged, and therefore, tenant could not be awarded summary judgment. Tenant asserted that landlord should be estopped from asserting the Statute of Frauds defense, because tenant relied, to its detriment, on the oral promise of the prior landlord. The Appellate Division, in overturning the Motion Court’s order, held that the new landlord was not estopped from asserting the defense. American Bartenders School, Inc. v. 105 Madison Co., 91 A.D.2d 901 (1st Dep’t 1983). In affirming the Appellate Division Order, the Court held: The purpose of invoking the doctrine is to prevent the infliction of unconscionable injury and loss upon one who has relied on the promise of another (3 Williston, Contracts [3d ed], § 533A, at p 798; Imperator Realty Co. v Tull, 228 NY 447, 453). It cannot be said that an "unconscionable" injury to plaintiff has resulted from defendant's refusal to execute the lease modification. Plaintiff's allegation that defendant's profit motive somehow renders its conduct inequitable would seem to be 31 irrelevant, inasmuch as the concern is for whether defendant's conduct has unjustly injured plaintiff. The circumstances set forth by plaintiff simply do not rise to a level of unconscionability warranting application of equitable estoppel (see Ginsberg v Fairfield-Noble Corp., 81 AD2d 318). American Bartenders, 59 N.Y.2d at 718 (internal citations omitted.) Similarly, here, equitable estoppel is not available to Respondents. As previously stated, the Stipulation did not create a duty on 230 Park to mitigate its damages or assist Kurzman in finding a prospective tenant, nor did it create any right to Kurzman to do so. Furthermore, the record is devoid of any evidence that Kurzman was prevented from locating a prospective tenant, or that it undertook any efforts to locate a prospective tenant. Moreover, Kurzman has not shown that 230 Park prevented Kurzman or its property broker from marketing or showing the space. Not a single exhibit or affidavit was submitted by Kurzman supporting the allegation that it was prevented from showing the space, let alone, that it even attempted to show the space. Further, Kurzman has not set forth anything more than mere conjecture that 230 Park “warehoused” this valuable midtown office space. Simply put, Kurzman has not, and cannot, show detrimental reliance on the terms of the Stipulation, or that it suffered an unconscionable injury. Therefore, its equitable estoppel argument must fail. 32 C. Respondents’ Request for Additional Discovery Is Meritless Respondents’ last ground for denying summary judgment, which was not addressed by the Motion Court, is its feigned need for additional discovery. (Respondents’ Brief at 48-49). However, Respondents have not stated, beyond mere generalities, what facts or information is solely within 230 Park’s knowledge. They have not propounded what discovery was needed to oppose 230 Park’s Motion for Summary Judgment, particularly since the parties engaged in extensive discovery before the summary judgment motion was filed, and any purported evidence of interference with brokers would have been under their control. Courts have declined to deny summary judgment based upon outstanding discovery, where, as here, the alleged need for additional discovery is nothing more than the hope that a fishing expedition may reveal a helpful fact. Steinberg v. Abdul, 230 A.D.2d 633 (1st Dep’t 1996) (“We add that the mere hope, expressed by plaintiffs, that evidence sufficient to establish defendants' assumption of a duty to plaintiffs' decedent may be obtained during discovery does not fulfill their obligation to demonstrate the likelihood of such disclosure (CPLR 3212 [f]) and, thus, is insufficient to defeat defendants' motions for summary judgment.”). See also, Monno v. Owusu, 232 A.D.2d 461 (2nd Dep’t 1996) (“Allegations of mere hope that 33 the discovery will reveal something helpful to the plaintiff's case provided no basis for postponing determination of the [cross-motion for summary judgment.]”); Frierson v. Concourse Plaza Assocs., 189 A.D.2d 609, 610 (1st Dep’t 1993) (“Neither can [Defendants] avoid summary judgment by claiming a need for discovery. The “mere hope” of defendants that evidence sufficient to defeat such a motion may be uncovered during the discovery process is not enough.”) Here, Respondents have not set forth anything more than the mere hope that additional discovery could support their spurious defense. Moreover, Respondents neglect to inform the Court that the parties did engage in extensive discovery, including the production of hundreds of pages of documents, turned over to Respondents prior to the summary judgment motion. Respondents’ request for additional discovery is nothing more than a fishing expedition, and should be given no credence by the Court. POINT IV LANDLORD IS ENTITLED TO A REMAND DIRECTING THE ENTRY OF A MONEY JUDGMENT ON THE RECORD HEREIN Respondents take issue with 230 Park’s uncontroversial request to remand the case to the Supreme Court for (i) the entry of a money judgment 34 against Kurzman in the sum of $872,880.12; (ii) the entry of a money judgment against the Guarantors, jointly and severally, in the sum of $200,000.00; and (iii) a hearing to determine the amount of legal fees and expenses owed by the Respondents to 230 Park pursuant to the terms of the Lease and Guarantee. Respondents’ claim that 230 Park is not entitled to such relief is legally baseless, especially in light of their failure to challenge the specific amounts due Landlord. (Respondents’ Brief at 49). First, it is well settled that remand to a trial court by the appellate court is appropriate for a determination on the issue of damages. See, Eugenia VI Venture Holdings, Ltd. V. AMC Investors, LLC, 35 A.D.3d 157 (1st Dep’t 2006); IBE Trade Corp. v. Litvinenko, 16 A.D.3d 132 (1st Dep’t 2005). Here, the Motion Court declined to award the unchallenged sum certain of damages to the Landlord, based only on its denial of summary judgment to the Landlord. Accordingly, it is appropriate for the Court to remand this matter to the Motion Court for entry of an award of damages. Respondents’ reference to paragraph 30 of their attorneys’ affirmation in opposition to the 230 Park’s motion for summary judgment is unavailing [R: 232-33]. Indeed, paragraph 30 of their attorneys’ affirmation concerns Respondents’ contention that they are not liable for unpaid rent real estate 35 taxes because they claim, the Lease was terminated on August 31, 2011. (Respondents’ Brief at 50-51), a date prior to the expiration of the Lease. Respondents’ reference to Article 24 (c) (6) of the Lease is irrelevant. That provision of the Lease applies to a case in which the lease expires or is terminated in the middle of the calendar year, in which the real estate taxes would be pro-rated. It expressly does not apply where the Lease was terminated because of Tenant’s breach. [R: 68]. As described above, the Lease was terminated as a result of Tenant’s default and the Stipulation entered in the Civil Court summary proceeding. Tenant remains liable for damages under the terminated Lease, including the real estate tax escalation, pursuant to Article 5 of the Lease. Therefore, Article 24(c) (6) of the Lease, which specifically excludes termination of the lease on the basis of tenant’s default, is a red herring, and is inapplicable to this case in which the Lease terminated because of Kurzman’s default. As this was the sole basis for Respondents’ opposition to the Landlord’s request for remand, there is no reason why this matter should not be remanded to the Motion Court for the proper award of damages to 230 Park. Accordingly, there is no support in the record for the lower courts’ holding that (i) the Stipulation imposed any duty on the Landlord, or (ii) that triable issues of fact exist as to whether the Landlord interfered with 36 Kurzman’s efforts to locate a prospective tenant. For these reasons, the lower courts’ holdings that the Stipulation provided Kurzman an opportunity to cover all or some of its damages, and that questions of fact exist as to whether 230 Park breached the Stipulation, are simply not correct. Paragraph 8 of the Stipulation merely clarified that the prohibition on subleasing and assigning did not prohibit Kurzman from locating or offering a new tenant; it did not confer any right on Kurzman to impose any new tenant on the Landlord, or any obligation on the Landlord to accept any proposed tenant or to otherwise mitigate its damages. CONCLUSION For all of the foregoing reasons, and for all of the reasons set forth in the 230 Park Appellant's Brief, it is respectfully submitted that 230 Park's appeal should be granted, and the Appellate Division Order and Supreme Court Order should be reversed and/or modified by dismissing Respondents' third affirmative defense, granting summary judgment to 230 Park on its complaint and remanding the case to the Supreme Court for (i) the entry of a money judgment against Kurzman in the sum of $872,880.12 plus interest; (ii) the entry of a money judgment against the Guarantors, jointly and severally, in the sum of $200,000.00 plus interest; and (iii) a hearing to determine the amount of legal fees and expenses owed by the Respondents to 230 Park pursuant to the terms of the Lease and Guarantee. Dated: New York, New York September 10, 2015 · KLEIN & SOLOMON, LLP By: _ ____.II--'-+-------- Jay B. o mon, Esq. Attorneys fp~J Plaintiff-Appellant 230 ParkA\lenue Holdco, LLC. 275 Madison Avenue, 11th Floor New York, New York 10016 (212) 661-9400 37