Motion for Summary Judgment

The following was stipulation was filed the following with the court. Please note that the text below is an html (text-only) version. For an exact copy, you can e-mail any board member.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

     1.     On or about December 31, 1984, plaintiff Bleecker Charles Company ("the Sponsor") submitted an offering plan ("the Original Plan") for filing to the New York State Department of Law with respect to the building and land located at 350 Bleecker Street in the City, County and State of New York ("the Property"). New York General Business Law §§ 352-e; 352-eeee and regulations thereunder, as promulgated by the New York Department of Law, govern the filing content of offering plans for cooperative residences in the City and State of New York.

     2.     On or about April 5, 1985, the Original Plan, as amended, ("the Sponsor's Offering Plan") was declared effective ("the Declaration of Effectiveness"). A copy of the Declaration of Effectiveness, for the purpose of identification only, is annexed hereto as Exhibit A.

     3.     Upon the closing prescribed by the Sponsor's Offering Plan ("the Closing"), the Sponsor was to convey and transfer to defendant and third-party plaintiff 350 Bleecker Street Apartment Corporation ("the Co-op") the fee simple interest in the Property and the Co-op was to issue simultaneously to the Sponsor proprietary leases ("the Proprietary Leases") and related shares ("the Related Shares") for 137 residential apartment units ("the Units") in the Property ("the Sponsor's Units"). The Proprietary Leases and Related Shares for 31 of the Units had been subject to contracts of sale prior to the Closing were all delivered at the Closing to the purchasers under such contracts ("the Pre-Sold Units"). Some of such contracts of sale were closed in escrow prior to the Closing and delivered at the Closing. The Sponsor's Units (including the Pre-Sold Units) are described in the schedule entitled Sponsor's Units (Including Pre-Sold Units) and Shares on Date of Conversion annexed hereto as Exhibit B. Unit LG, which was to be used by the superintendent of the Property, and the laundry room, located in the Property's basement, ,which were not allocated Proprietary Leases and Related Shares were to be transferred and conveyed outright to the Co-op upon the Closing as part of the overall fee interest in the Property. Accordingly, neither Unit LG nor the laundry room was included in the Sponsor's Offering Plan.

     4.     At the Closing on July 31, 1985, the fee simple interest in the Property was conveyed to the Co-op for cash and a wrap purchase money mortgage and the Proprietary Leases and Related Shares for the Sponsor's Units were issued to either the Sponsor or directly to the purchasers of the Pre-Sold Units.

     5.     At the Closing, the Co-op, as landlord, and the Sponsor, as tenant, executed and delivered a lease dated July 31, l 985, a true copy of which is annexed hereto as Exhibit C, covering the two ground floor commercial spaces and the basement parking garage ("the Garage") located at the Property ("the Master Lease").

     6.     The Sponsor's Offering Plan was a so-called non-eviction plan, pursuant to which tenants occupying the Sponsor s Units on the effective date of the plan were offered the choice of either (a) purchasing the Proprietary Leases and Related Shares at the prices and upon terms of the Sponsor s Offering Plan or (b) continuing in occupancy of their respective Units pursuant to existing leases. any applicable rent stabilization rights and New York General Business Law 352-eeee.

     7.     The Sponsor, as sublessor, and Bleecker Parking Corporation, as subtenant, executed and delivered a lease for the Garage dated November 27, l 996, a true copy of which is annexed hereto as Exhibit D.

     8.     Through the date of this Stipulation, the Sponsor has transferred 107 of the Proprietary Leases and Related Shares for the Sponsor's Units designated under the Original Plan to third-parties on the respective dates set forth in the schedule entitled Sponsor's Transfer of Units (Including Pre-Sold Units) and Related Shares annexed hereto as Exhibit E.

     9.     As of the date of this Stipulation, the Sponsor owns the Proprietary Leases and Related Shares for 30 of the original 137 Sponsor's Units designated under the Original Plan as described in the schedule entitled Units Currently Owned by Sponsor annexed hereto as Exhibit F.

     10.     From July 31, 1985 through the date of this Stipulation, the Sponsor's Units described in the schedule entitled Sponsor's Transfer of Units (Including Pre-Sold Units) and Related Shares annexed hereto as Exhibit E, after their transfer by the Sponsor to the third-parties as described in schedule entitled Initial Transfer of Later Altered Units /Date Units Altered annexed hereto as Exhibit G annexed hereto, have been physically altered in the manner and on the approximate dates described in such Exhibit G. The Certificate of Occupancy for the Property has been amended from time to time to reflect certain of these alterations as reflected in the amended Certificates of Occupancy for the Property annexed hereto as Exhibit H ("the Amended Certificates of Occupancy"). The Co-op has not changed the Unit designations, the Proprietary Leases or Related Shares since the dates of their original sales to their present owners. However, existing Unit designations and additional Related Shares were assigned to those portions of former hallway space which were adjoined to Units 3D and Units 6D respectively. The Co-op reserves the right to contend that it and its shareholders intended to revise, and the managing/transfer agent should have revised, these designations, the Proprietary Leases and Related Shares but failed to do so in accordance with applicable law. The Sponsor reserves the right to contend that these revisions were not required by applicable law.

     11.     On or about December 1, 1988, Shirley Lomanto and her husband Anthony Lomanto purchased from the Sponsor the Proprietary Lease and the Related Shares for Unit 2L, as tenants in common, and have retained such ownership at all times to date. When the Sponsor transferred its interest in Unit 2L to Mr. and Mrs. Lomanto, the Sponsor provided Mr. and Mrs. Lomanto with a designation letter stating that they were designated holders of unsold shares, a true and correct copy of which is annexed hereto as Exhibit I. The Sponsor reserves the right to contend that there has not been compliance with all of the requirements set forth in Title 13 New York Code Rules and Regulations § 18.3(w) and that therefore neither Mr. nor Mrs. Lomanto has ever been entitled to the rights of holders of unsold shares under New York law. Mrs. Lomanto was then and has been at all times to the present an employee of Kenneth B. Newman, P.C., whose principal Kenneth B. Newman now is, and has been since at least December 1984, the liquidating partner of the Sponsor.

     12.     On or about July 31, 1985, Kathleen Giannetti (now known as Kathleen Iwanczuk) purchased from the Sponsor the Unit Lease and Related Shares for Unit 6A. When the Sponsor transferred its interest in Unit 6A to Ms. Giannetti, the Sponsor provided Ms. Giannetti with a designation letter stating that she was designated a holder of unsold shares, a true and correct copy of which is annexed hereto as Exhibit J. On or about June 16, 1989, Ms. Giannetti's interests were transferred to her and her husband Anatole Iwanczuk as tenants in common. Mr. and Mrs. Iwanczuk were not, upon the transfer in 1989, designated as holders of unsold shares. The Sponsor reserves the right to contend that there has not been compliance with all of the requirements set forth in Title 13 New York Code Rules and Regulations §18.3(w) and that therefore neither Mr. nor Mrs. Iwanczuk has ever been entitled to the rights of holders of unsold shares under New York law. Ms. Iwanczuk was from November 1, 1969 until November 1, 1999 a full time employee of the law firm of Blumenthal & Lynne, a Professional Corporation, the landlord of Kenneth B. Newman, P.C. at all times from at least December 1984 to date and counsel for the Sponsor in connection with the Sponsor's Offering Plan until the Closing.

     13.     On June 27, 2000, the Co-op's Board of Directors held a meeting of certain shareholder-tenants of the Co-op, at which a vote was taken on a resolution for the Co-op to terminate the portion of the Master Lease pertaining to the Garage ("the Garage Portion") under the Condominium and Cooperative Conversion Protection and Abuse Relief Act, 15 U.S.C. §§3601-3616 ("the Act"). Each Unit designated under the Original Plan was counted in the vote, with the exception of the 30 Sponsor's Units, without regard to any of the alterations set forth in Exhibit G. The Co-op reserves the right to contend that the counting of the votes without regard to these alterations was in error. The Sponsor reserves the right to contend that the meeting was not properly convened under Section 605(a) of the New York Business Corporation Law and Section 1(2) of the Co-op's By Laws in that no notice of the meeting was sent to the Sponsor or the owners of the Proprietary Leases and Related Shares for Sponsor's Units 2L and 6A. Prior to the vote, the Sponsor delivered to the Co-op's Board of Directors written notice of its contention. The Co-op further reserves the right to contend that notice of the meeting, although not required by either the Act or New York General Business Law, was given to the Sponsor, the Lomantos and the Iwanczuks.

     14.     At the foregoing meeting, an individual who was a director of the Co-op, Chairman of its Board of Directors and the presiding officer of the meeting declared that the resolution had passed 87 to zero with 20 abstentions (with Units 2L and 6A included as abstentions), based upon one vote for each Sponsor's Unit sold by the Sponsor from July 31, 1985 until the date of the meeting. The Co-op reserves the right to contend that the individual officer declaring that 87 units had voted to pass the resolution did not have the authority to bind the Co-op on the number of units so voted for purposes of the Act and that, as a result, that particular number is not binding on the Co-op in this action.

     15.     On July 19, 2000, the Co-op sent by U.S. Postal Service, Express Mail to the Sponsor a document entitled Notice of Termination, a true copy of which is annexed hereto as Exhibit K, which Sponsor actually received on July 2O, 2000.

Dated: New York, NY
March 15, 2001

PROSKAUER ROSE LLP
By: /s/ Dale A. Schreiber
Dale A. Schreiber (DS-9211)
Attorneys for Plaintiff

TANNENBAUM HELPERN SYRACUSE & HIRSCHTRITT LLP
By: /s/ Vincent J. Syracuse
Vincent J. Syracuse (VS 678)
Attorneys for Additional
Counterclaim Defendant

Exhibit A

This Amendment supplements the Offering Plan dated 

December 31, 1984, as amended by Amendments numbered 

One dated January 22, 1985, and Two dated February 28, 

1985, (the "Plan"). The terms of this Amendment are as follows:

1.    The Sponsor hereby declares the Plan effective.

2.    The Plan was declared effective, pursuant to the 

      effective date section of the Offering Plan, by 

      notice to all purchasers and tenants in the 

      building, dated April 5, 1985, and the 

      simultaneous filing of the this Amendment. (A 

      copy of the notice declaring the Plan effective is annexed hereto.)

3.    22.6 per cent of the tenants being counted for 

      purposes of declaring the Plan effective have 

      executed subscription agreements. There is one 

      class of tenant: all tenants are rent stabilized. 

      The percentage was calculated as follows:

      (a)  The number of units in the base is 137 which 

           was calculated as follows: 138 = total 

           number of units at the premises less the one 

           unit reserved for the superintendent.




      (b)  The numerator (31) consists of all tenant-

           purchasers entitled to be counted for the 

           purposes of declaring the Plan effective.

4.    The Sponsor has offered no discriminatory 

      inducements to tenants for them to purchase the 

      foregoing apartments. None of such persons are 

      directly related to or are business affiliates of 

      the Sponsor or its Managing Partner except a sub-

      scriber (Susan Ross) who is a daughter of a 

      limited partner who owns less than a 1/2% interest

      in the partnership. Susan Ross occupies apartment

      2F. Susan Ross' father is a cousin of the under-

      signed. Another subscriber, Stuart Birdt, is the

      son of a limited partner who owns a 1% interest

      in the partnership. Stuart Birdt occupies apartment

      1C.

5.    An affidavit from the Sponsor is annexed hereto

      containing certain pertinent information.

6.    A list of subscribers who subscribed prior to 

      service on the tenants of any notice declaring the 

      Plan effective and who are being counted to meet 

      the minimum percentage necessary are:



                                 -2-


                                    Date of            Date of Physical
                  Purchased       Subscription        Occupancy if Within
Name              Unit (Apt.)      Agreement        Preceeding Three Years

Ninalee May           LD          January 25, 1985      February 1, 1984

Marlene and
Richard Cohen         LJ          February 2, 1985

David Lerner          1A          March 28, 1985

Stuart Birdt          1C          March 22, 1985        March 1, 1983

Brad Cohen            1D          February 25, 1985     *

Linda Schloss         1G          March 27, 1985

Marcia Rockwood       1H          March 27, 1985

Karen and
Seth Raplowitz        1K          January 22, 1985

Barbara Wolf          1V          March 13, 1985

Peter Forward         2C          January 21, 1985      January 1, 1984

Lisa Goldsmith        2E          January 22, 1985      August 1, 1984

Susan Ross            2F          February 25, 1985     July 1, 1984

Sheri Gold            2M          January 22, 1985      August 1, 1983

Michael Craig         2P          March 14, 1985

Albert Pinhas         3E          March 8, 1985

Art and
Elizabeth Farrell     3F          February 23, 1985     *

John Milewozik        3H          February 27, 1985     *

Stefanie and
James Sanders         3M          March 26, 1985

Cheryl and
Fred Kohut            3N          January 22, 1985

Robin Morlock         3W          January 24, 1985       October 1, 1983

*Vacant apartment purchased for occupancy.


                                 -3-



                                    Date of            Date of Physical
                  Purchased       Subscription        Occupancy if Within
Name              Unit (Apt.)      Agreement        Preceeding Three Years

Herbert Toboroff      4B          January 21, 1985      August 1, 1984

Joan Ahern            4M          March 27, 1985

Robert Mishkin        5B          January 25, 198S

John Stewart          5G          February 28, 1985

Bernard Tannenbaum    5R          January 10, 1985      August 1, 1984

Thomas Nathan         5U          January 23, 1985

Frank Greene          SW          March 26, 1985

Kathleen Giannetti    6A          January 16, 1985

Victoria McDonough    6H          January 22, 1985      February 1, 1984

Elizabeth Fulton      6L          March 28, 1985

Helene Taylor         6V          March 26, 1985        December 1, 1983

                 (a)  It is represented that the subscribers who

                      are counted for purposes of declaring the
 
                      plan effective:

                      (1)  signed subscription agreements without

                           fraud or duress and with no discrimina-

                           tory inducement; and

                      (2)  the prices and deposits were all as set

                           forth in the Plan and received at the

                           same time as the subscription agree-

                           ments. All tenant purchasers are rent

                           stabilized tenants.



                                 -4-



                       (3) do not include any subscriber who is the
 
                           Sponsor or the Selling Agent, or is a 

                           principal of the Sponsor or the Selling 
 
                           Agent, or is related to the Sponsor or 
 
                           the Selling Agent by blood, marriage 
 
                           or adoption or as a business associate, an 
 
                           employee, a shareholder or a limited 
 
                           partner except a subscriber (Susan Ross) 
 
                           who is a daughter of a limited partner 
 
                           who owns less than a 1/2% interest in 
 
                           the partnership. Susan Ross occupies 
 
                           apartment 2F. Susan Ross' father is a 
 
                           cousin of the undersigned. Another sub-
 
                           scriber, Stuart Birdt, is the son of a 
 
                           limited partner who owns a 1% interest 
 
                           in the partnership. Stuart Birdt occupies 
 
                           apartment 1C.

7.    Sponsor has no information that any tenants have 

      executed a "no-buy" pledge with respect to the 

      Offering.

8.    Sponsor spent $19,618.50 on sidewalk repairs which 

      amount will be deducted from the Reserve Fund as 

      provided in the Plan.

                                 -5-



9.    The closing has been scheduled for June 15, 1985, 

      subject to the acceptance of this Amendment for 

      filing.

10.   Except as set forth in this Amendment, there have 

      been no material changes in the Plan.

Dated:   New York, New York
         April 5, 1985            BLEECKER CHARLES COMPANY

                                  By: /s/ Kenneth B. Newman
                                      Kenneth B. Newman




                                 -6-

Exhibit B

SPONSOR'S UNITS (INCLUDING PRE-
SOLD UNITS*) AND SHARES ON DATE OF CONVERSION

Pre-sold Units are designated by an "*".

Exhibit C

This Exhibit is a copy of the Master Commercial Lease between 350 Bleecker Street Apartment Corporation and Bleecker Charles Company. It was scanned into a graphic large file of 1.09 megabytes. To download it, you will need Adobe Acrobat.

Exhibit D

This Exhibit is a copy of the Garage Lease between Bleecker Parking Corporation and Bleecker Charles Company. It was scanned into a graphic large file of 1.03 megabytes. To download it, you will need Adobe Acrobat.

Exhibit E

SPONSOR'S TRANSFER OF UNITS
(INCLUDING PRE-SOLD UNITS*) AND RELATED SHARES

Exhibit F

UNITS CURRENTLY OWNED BY SPONSOR

Exhibit G

INITIAL TRANSFER OF LATER ALTERED UNITS

DATE UNITS ALTERED

*     Denotes Units which the Co-op contends are "legal" combinations and should be accounted for in reducing the total number of Units in the Building.

Exhibit H

This Exhibit is a copy of four Certificates of Occupancy dated 04/05/62, 08/30/94, 03/26/96 and 04/07/00. You will need a copy of Adobe Acrobat.

Exhibit I

BLEECKER CHARLES COMPANY
488 MADISON AVENUE
NEW YORK, NEW YORK 10022

                                           December 1, 1988

Mr. and Mrs. Anthony Lomanto 
2678 East 7th Street 
Brooklyn, New York 11235 

RE:   Apartment 2L 
      350 Bleecker Street 

Dear Shirley and Tony: 

We have transferred to you this day 128 shares of stock in 
the Corporation allocated to apartment 2L at the premises 
known as 350 Bleacker Street. You have indicated to us that 
you are purchasing this apartment for investment purposes. 
Accordingly, you are hereby designated a purchaser and holder
of unsold shares.

 
                             Very truly yours, 
                             /s/ Kenneth B. Newman
                             Kenneth B. Newman

KBN/sl 

Exhibit J

350 BLEECKER STREET APARTMENT CORP.
c/o KENNETH B. NEWMAN
535 FIFTH AVENUE
NEW YORK, NEW YORK 10017
------------
(212) 972-2420

                                           July 31, 1985

Mrs. Kathleen Giannetti
23 Oregon Road
North Babylon, Ne York 11704

RE:   Apartment 6A 
      350 Bleecker Street 

Dear Kathleen: 

We have transferred to you this day 112 shares of stock in 
the Corporation allocated to apartment 6A at the premises 
known as 350 Bleacker Street. You have indicated to us that 
you are purchasing this apartment for investment purposes. 
Accordingly, you are hereby designated a purchaser and 
holder of unsold shares.

 
                             Very truly yours, 
                             /s/ Kenneth B. Newman
                             Kenneth B. Newman

KBN/sl 

Exhibit K

NOTICE OF TERMINATION
PURSUANT TO THE CONDOMINIUM AND COOPERATIVE
PROTECTION AND ABUSE RELIEF ACT, 15 U.S.C § 3607

TO: Bleecker Charles Company
c/o Kenneth B. Newman
488 Madison Avenue
New York, New York 10022

      PLEASE TAKE NOTICE that pursuant to Section 3607 of the Condominium and Cooperative Protection and Abuse Relief Act, 15 U.S.C § 3601 et. seq., that portion of the Agreement of Lease (the "Lease") made as of July 31, 1985 between 350 Bleecker Street Apartment Corp. (the "Cooperative") and Bleecker Charles Company (the "Developer") which relates to the parking garage located at the premises owned by the Cooperative, and any amendments or extensions to such Lease has been and is hereby terminated. Pursuant to 15 U.S.C § 3607, termination was by a vote of owners of not less than two-thirds of the units of the "Cooperative" other than the units owned by the Developer, or an affiliate of the Developer.

      PLEASE TAKE FURTHER NOTICE that, pursuant to 15 U.S.C § 3607(d) this termination shall be effective ninety days after hand delivering of this notice or mailing of this notice to you.

Dated: July 19, 2000

350 BLEECKER STREET APARTMENT CORP.
By: /s/ James D. Kafadar
PRINT NAME: James D. Kafadar
TITLE: Secretary

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350 Bleecker Street Apartment Corp.
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