PROSKAUER ROSE LLP
Dale A. Schreiber (DS-9211)
Allison B. Feld (AF-9464)
1585 Broadway
New York, NY 10036
(212) 969-3000
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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BLEECKER CHARLES COMPANY, : 00 Civ. 7827 (GEL)
Plaintiff, :
REPLY TO
-against- : COUNTERCLAIM
350 BLEECKER STREET APARTMENT :
CORPORATION,
:
Defendant,
:
-against-
:
BLEECKER PARKING CORP.,
:
Additional Counterclaim Defendant.
:
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Plaintiff Bleecker Charles Company ("the Sponsor"), by its undersigned counsel, for its reply to counterclaims of defendant 350 Bleecker Street Apartment Corporation ("the Co-op") contained in its answer and counterclaims dated December 29, 2000 ("the counterclaim"):
1. Denies the allegations of paragraph 14 of the counterclaim, except admits that the Co-op asserts the claims and seeks the relief in this action described in that paragraph.
2. Admits the allegations of paragraph 15 through l8 of the counterclaim.
3. Does not respond to paragraphs 19 through Z 1 of the counterclaim because such paragraphs merely contain legal contentions.
4. Admits the allegations of paragraphs 22 and 23 of the counterclaim.
5. Denies the allegations of paragraph 24 of the counterclaim, except refers to the original or true copy of the relevant offering plan ( "Offering Plan"), Bylaws of the Co-op ("the Bylaws") and provisions of the proprietary leases between the Co-op and its tenant shareholders.
6. Denies the allegations of paragraphs 25 through 27 of the counterclaim, except admits that the Co-op and the Sponsor executed and delivered a certain Agreement of Lease dated July 31, 1985 ("the Master Lease") and for its contents refers to the original or a true copy.
7. Denies the allegations of paragraph 28 of the counterclaim, except admits that the Sponsor has executed and delivered various subleases for the spaces covered by the Master Lease including the parking garage ("the Garage").
8. Does not respond to paragraphs 29 and 30 of the counterclaim, because such paragraphs merely contain legal contentions.
9. Admits the allegations of paragraphs 31 through 33 of the counterclaim insofar as they assert matters of fact, but does not respond to those paragraphs to the extent that they merely contain legal contentions.
10. Denies the allegations of paragraph 34 of the counterclaim, except refers to the relevant Bylaws for their contents.
11. Denies the allegations of paragraphs 35 through 42: of the counterclaim, except admit that certain of the units referred to therein were physically connected or combined, in each case with the consent of the Board of Directors of the Co-op, of which the Sponsor's designees never constituted a majority and did not control, but denies that the unit designations for such units, the proprietary leases for such units, or the aggregate number of related shares for such units were changed.
12. Does not respond to the allegations of paragraph 43 of the counterclaim, because such paragraph merely contains legal contentions.
13. Denies the allegations of paragraphs 44 through 48 of the counterclaim.
14. Denies the allegations of paragraph 49 of the counterclaim.
15. Denies the allegations of paragraph 50 of the counterclaim, except admit that, on or about December 1, 1988, the Sponsor sold the proprietary lease for unit 2L and the related shares in the Co-op to Shirley and Anthony Lomanto, who have owned at all times since that date such proprietary lease and related shares as tenants in common, and that, on or about July 31, 1985, the Sponsor sold the proprietary lease for Unit 6A and the related shares in the Co-op to Kathleen Giannetti, who owned such proprietary lease and the related shares from that date until June 16, 1999, and that at all times since that date the proprietary lease for such unit and related shares have at all times been owned by Kathleen and Anatol Iwanczuk as tenants in common.
16. Denies the allegations of paragraphs 51 and 52 of the counterclaim, except refers to the original or a true copy of the amendments to the Offering Plan referring to Units 2L and 6A.
17. Denies the allegations of paragraphs 53 of the counterclaim, expect admits that Kenneth B. Newman is the liquidating partner of the Sponsor and Ms. Lomanto is an employee of Kenneth B. Newman, P.C., of which Mr. Newman is a shareholder, officer and director.
l8. Denies the allegations of paragraph 54 of the counterclaim, except admits that Kathleen Giannetti, as she was then known, was an employee of the law firm that drafted the offering plan filed by the Sponsor in December 1984 and when the offering plan was declared effective on April 5, 1985 and that Ms. Giannetti has not worked full time for that law firm since November 1, 1999 and that Kenneth B. Newman, P.C. is and has been since at least 1984 a subtenant of such law firm.
19. Denies the allegations of paragraph 55 of the counterclaim and avers that other allegations of the counterclaim indicate that the owners of the proprietary leases for such units and thc related shares of the Co-op were not sent, and did not receive, notice of the shareholders meeting at which the vote referred to was taken.
20. Denies the allegations of paragraph 56 through 59 of the counterclaim but does not respond to those paragraphs to the extent that they merely contain legal contentions.
21. Denies the allegations of paragraph 60 of the counterclaim, except admits that the Sponsor sent a letter referred to shareholder-tenants of the Co-op and refers to the original or a true copy for its contents.
22. Denies the allegations of paragraph 61 of the counterclaim.
23. Denies the allegations of paragraph 62 of the counterclaim, except admits the allegations of the first sentence thereof.
24. Denies the allegations of paragraph 63 of the counterclaim insofar that the notice referenced therein was not provided to the Sponsor and denies knowledge or information sufficient to form a belief as to the truth of the remainder of such allegations.
25. Denies the allegations of paragraph 64 of the counterclaim, except admits the Sponsor's attention was drawn to a newsletter referring to the meeting of shareholder-tenants described therein prior to the date and time for which the meeting was scheduled and does not respond to the first sentence thereof insofar as it merely contains legal contentions.
26. Denies the allegations of paragraph 65 of the counterclaim.
27. Denies the allegations of paragraph 66 of the counterclaim, except admits that the Sponsor received the notice referred to therein.
28. Denies the allegations of paragraphs 67 through 69 of the counterclaim, except admits that the Sponsor received the notice referred to therein on or about July 20, 2000.
29. Denies the allegations of paragraphs 70 through 73 of the counterclaims.
30. Admits the allegations of paragraph 74 of the counterclaim.
31. Repeats its responses to the allegations incorporated by reference into paragraph 75 of the counterclaim.
32. Denies the allegations of paragraphs 76 through 80 of the counterclaim.
FIRST AFFIRMATIVE DEFENSE
34. To the extent that the holders of the proprietary leases for Units 2L and 6A and the related shares may be deemed "holders of unsold shares" within the meaning of 13 N.Y.C.R.R. Part 18.3 (w) and the Offering Plan and Proprietary Lease, which status the Sponsor denies that such holders have or ever had have, in no event is either such holder a "developer" or a "successor of a developer," within the meaning of 15 U.S.C. §3603(14).
SECOND AFFIRMATIVE DEFENSE
33. To the extent that the Sponsor is required to plead any additional affirmative defenses, the Sponsor repeats the allegations of its complaint in this action.
WHEREFORE, the Sponsor prays for judgement dismissing the counterclaim with prejudice, costs, and attorneys' fees and such other and further relief as maybe just and proper.
Dated: New York, NY
January 12, 2001
PROSKAUER ROSE LLP
By: /s/ Dale A. Schreiber
Dale A. Schreiber (DS-9211)
1585 Broadway
New York, NY 10036
(212) 969-3000
Attorneys for Plaintiff
TO: FRIEDMAN, KRAUSS & ZLOTOLOW
888 Seventh Ave.
New York, NY 10106-0299
(212) 247-5990
Attorneys for Defendant
Bleecker Parking Corporation
c/o Joseph Vassallo
444 East 82nd Street
New York, NY 10021
(212) 737-3279
Additional Counterclaim Defendant
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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BLEECKER CHARLES COMPANY,
Plaintiff, AFFIDAVIT OF SERVICE
-against- 00 Civ. 7827 (GEL)
350 BLEECKER STREET APARTMENT
CORPORATION,
Defendant,
-against-
BLEECKER PARKING CORP.,
Additional Counterclaim Defendant.
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STATE OF NEW YORK ]
]SS.:
COUNTY OF NEW YORK ]
John G. Fleming, Jr., being duly sworn deposes and states:
1. I am not a party to this action, am over 18 years of age, and reside in Hudson County, New Jersey.
2. On January 12, 2001, I served the attached Reply to Counterclaim upon:
Joseph Vassallo
Bleecker Parking Corporation
444 East 82nd Street
New York, N.Y. 19921
by having said documents personally delivered to and having a true copy of the aforementioned document left with said party. Sworn to me this 16th day of January, 2001. /s/ Anthony Lopez /s/ John G. Fleming, Jr. Notary Public John G. Fleming, Jr.
Anthony Lopez
Notary Public, State of New York
No. 31 6015568
Qualified In New York County
Commission Expirs Nov. 2, 2002
CERTIFICATE OF SERVICE
I, Allison B. Feld, an attomey associated with the law fimm of Proskauer Rose
LLP, attorneys for Plaintiffin the action entitled Bleecker Charles Company v. 350 Bleecker
Street Apartment Corporation in the Southem District of New York, Civil Action No 00 Civ.
7827 (GEL), hereby certify that on January 12, 2001, I caused one copy of the annexed Reply to
Counterclaim, to be served on the following counsel for plaintiff by hand delivery:
Robert N. Fass, Esq.
Friedman, Krauss & Zlotolow
888 Seventh Avenue
New York, NY 10106-0229
Dated: January 12, 2001
/s/ Allison B. Feld
Allison B. Feld