UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
|
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x BLEECKER CHARLES COMPANY, Plaintiff, -against- 350 BLEECKER STREET APARTMENT CORPORATION, Defendant, -against- BLEECKER PARKING CORP., Additional Counterclaim Defendant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x |
00 CIV. 7827 (GL)
AFFIDAVIT OF MARK LILIEN
|
|
STATE OF NEW JERSEY )
) ss.:
COUNTY OF ESSEX )
Mark Lilien, being duly sworn, deposes and says:
1. I am a shareholder Chairman of the Board of Directors of defendant 350 Bleecker Street Apartment Corporation (the "Cooperative"). I am fully familiar with the facts set forth herein. I submit this affidavit in support of Defendant's cross-motion for summary judgment and in opposition to Plaintiff's and Additional Counterclaim Defendant's motion for summary judgment.
2. This action has been brought pursuant to the Federal Condominium and Cooperative Conversion Protection and Abuse Relief Act, 15 U.S.C. §§ 3601 et. seq. (the "Abuse Relief Act"). The plaintiff, Bleecker Charles Company (the "Sponsor"), seeks a declaration that it was not. In response the Cooperative has brought a counterclaim against the Sponsor and 350 Bleecker Corp. (the "Garage Operator"), the sublessor of the Garage space in the Cooperative, for a judgment:
(1) against the Sponsor and the Garage Operator declaring that the parking garage portion (the "Garage Portion") of the Agreement of Lease dated July 31, 1985 (the "Master Lease") between the Cooperative and the Sponsor for the public parking garage (the "Garage") located at the Cooperative's premises, 350 Bleecker Street in the City of New York (the "Premises"), has been properly terminated pursuant to the Abuse Relief Act;
(2) against the Sponsor pursuant to 15 U.S.C. § 3611(b) apportioning the rent due under the remaining portion of the Master Lease;
(3) against the Sponsor and the Garage Operator pursuant to 15 U.S.C. § 3611(b) awarding the Cooperative possession of the parking garage;
(4) against the Sponsor pursuant to 15 U.S.C. § 3611(b) awarding the Cooperative damages, with appropriate interest, arising from the Sponsor's refusal to surrender possession of the parking garage; and
(5) against the Sponsor awarding the Cooperative its reasonable attorney's fees, independent engineer and appraisers' fees and court costs pursuant to 15 U.S.C. § 3611(d).
(Copies of the Complaint, Answer and Counterclaims and Replies are attached to Plaintiff's Notice of Motion as Exhibits 1 -4.)
3. The attached are true and correct copies of the following documents referred to in the accompanying Memorandum of Law:
Exhibit A The Cooperative By-Laws
Exhibit B New York City Dept of Buildings, Departmental Memorandum dated February 24th, 1969
Exhibit C The 17th Amendment to the Offering Plan
Exhibit D Relevant Portions of the Cooperative Offering Plan
Exhibit E The Cooperative Proprietary Lease
Exhibit F Letter dated January 21, 2000 from Kenneth B. Newman
Exhibit G Sponsors Certificate of Compliance with Article 23-A of the General Business Law.
Exhibit H Samples of Affidavits of Mailing Signed or Notarized By Holders of Unsold Shares
Exhibit I Record of Mailing of Notice of June 27, 2000 meeting.
4. On or about June 1, 2000, on behalf of the Board of Directors of the Cooperative, I mailed a notice to all shareholders, including the sponsor and other holders of unsold shares, of a meeting of unit owners to be held on June 27, 2000 for the purpose of voting on the proposed termination of the Garage portion of the Master Lease. I prepared a contemporaneous record to document this mailing. (Exhibit I)
5. A copy of the meeting notice was also placed in the Cooperative's newsletter. Additional copies were posted on the Cooperative's Internet website and in the Cooperative's building lobby.
6. At the meeting held on June 27, 2000, the Garage Lease was terminated by a vote of owners of not less than two-thirds of the units other than the units owned by the developer or an affiliate of the developer.
7. In or about January 2000, the law firm of Schecter & Brucker, who was then assuming the duties of corporate transfer agent, inquired of the Sponsor concerning the current status of the owners of apartments 2L and 6A. The inquiry was made because the corporate records obtained by the Schecter firm indicated that these owners had not been paying sublet fees. In response, by letter dated January 21, 2000 Kenneth B. Newman confirmed owners of both units had been designated as holders of Unsold Shares, who were exempt from such fees. (Exhibit F)
8. Mr. Newman is the liquidating partner of the Sponsor. In the past, Mr. Newman was also a member of the Cooperative's Board of Directors and was its President. All of Mr. Newman's entities of which I am aware operated from a single office - the same office in which Ms. Shirley Lomanto is employed.
/s/ Mark I. Lilien
MARK LILIEN