2018 03:04 PM · EACM repeats and realleges the preceding paragraphs as if fully set forth herein. 20. Pursuant to Section 27 of the Lease, EACM was required to provide Landlord with

STATE OF NEW YORKSUPREME COURT : COUNTY OF ERIE

EAST AURORA COOPERATIVE

MARKET, INC.,

Plaintiff,

v. Index No.:

RED BRICK PLAZA LLC,

Defendant.

COMPLAINT

Plaintiff, East Aurora Cooperative Market, Inc., by and through its

attorneys, Webster Szanyi LLP, as and for its Complaint against Defendant, Red Brick

Plaza LLC, alleges as follows:

Parties

1. Plaintiff East Aurora Cooperative Market, Inc. ("EACM") is a

corporation organized and existing under the laws of the State of New York with its

principal place of business located at 591 Main Street, East Aurora, New York 14052.

2. Upon information and belief, Defendant Red Brick Plaza

(" Landlord"("Landlord") is a limited liability company organized and existing under the laws of the

State of New York with its principal place of business located at 595 Main Street, Suite

203, East Aurora, New York 14052.

Jurisdiction and Venue

3. This Court has jurisdiction over this matter in controversy pursuant

to Article 3 of the New York Civil Practice Laws and Rules ("CPLR"). Pursuant to CPLR

FILED: ERIE COUNTY CLERK 06/22/2018 03:04 PM INDEX NO. 809806/2018

NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/22/2018

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(" Property"

(" Premises"

(" Lease"

§§ 503 and 509, the venue of this action is proper in the County of Erie, State of New

York.

Background

4. EACM is a cooperative market with a mission of providing access

to fresh, local, and wholesome foods to everyone.

5. Landlord is the owner of real property located at 591 Main Street,

East Aurora, New York 14052 ("Property"), which is improved by a commercial building

(" Building"("Building").

6. In April of 2014, EACM sought to lease 8,100 square feet of the

Building located on the Property ("Demised Premises").

7. On April 18, 2014, EACM entered into a lease with Landlord to rent

the Demised Premises. The April 18, 2014 lease ("Lease") is attached as Exhibit A.

8. The Lease incorporates Exhibits A through F (Ex. A [Options]; Ex.

B [Rent]; Ex. C [Lessor's Work]; Ex. D [Lessee's Work]; Ex. E [Rules and Regulations];

Ex. F [Timeline]).

9. On December 5, 2014, EACM and Landlord executed the First

Amendment to Lease ("Amendment"). The Amendment is attached as Exhibit B.

10. The Amendment solely amends Exhibit F (Timeline) of the Lease.

11. The Lease is subject to an initial term of 10 years (§ 3) ("Initial("

Term"), with an option to extend the Lease for 3 successive option periods of 5 years

each at Lessee's discretion (Ex. A). The Initial Term commences on the date Landlord

delivers possession of the Demised Premises to EACM.

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12. Exhibit F to the Lease, entitled"Timeline,"

provides that the

Landlord is to deliver the Demised Premises to EACM on October 6, 2014.

13. The Amendment extended the time for the Landlord to deliver the

Demised Premises to EACM by 61 days, or until December 6, 2014.

14. Therefore, the latest date the Initial Term commenced was

December 6, 2014, the date the Landlord was required to deliver the Demised Premises

to EACM.

15. Pursuant to Section 13 of the Lease, EACM is permitted to cure

any breach of the Lease within 20 days after Landlord provides EACM with written

notice of such a breach.

16. Upon information and belief, to date, Landlord has not provided

EACM with written notice of EACM's breach of any provision of the Lease pursuant to

Section 13 of the Lease.

17. Accordingly, EACM has satisfied all of its obligations under the

Lease.

18. Pursuant to Section 46 of the Lease, EACM is entitled to an award

ofattorneys'

fees, costs, and other expenses incurred in enforcing its rights under the

Lease.

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First Cause of Action

(Breach of Contract - Remittance of Security Deposit)

19. EACM repeats and realleges the preceding paragraphs as if fully

set forth herein.

20. Pursuant to Section 27 of the Lease, EACM was required to

provide Landlord with the sum of $16,355.00 as security for EACM's payment of rent

and performance of its obligations under the Lease.

21. EACM provided Landlord with the required $16,355.00 security

deposit upon signing the Lease.

22. Lease Section 27 provides:

To the extent [EACM] is not in breach of this Lease based on

satisfactory payment history as well as compliance with all

terms, conditions and covenants of this Lease during the first

three years of the Initial Term, one-third of the security will

be refunded to [EACM] at the start of the fourth year of the

Initial Term and one-balf of the remaining security at the start

of the fifth year of the Initial Term as long as [EACM] has not

been in breach of this Lease during the fourth year of the

Initial Term.

23. Accordingly, if EACM satisfies its obligations under the Lease,

Landlord is required to remit $5,451.66 at the beginning of the fourth year of the Initial

Term and an additional $5,451.67 at the beginning of the fifth year of the Initial Term.

- 24. As noted above, EACM has satisfied all of its obligations under the

Lease and has not been in breach of the Lease during the Initial Term.

25. The first year of the Initial Term commenced, at the latest, on

December 6, 2014, the date the Landlord was required to deliver the Demised Premises

to EACM.

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26. Therefore, the fourth year of the Initial Term started on December

6, 2017.

27. Landlord failed to remit $5,451.66 on December 6, 2017 in

accordance with Section 27 of the Lease.

28. Therefore, Landlord is in breach of the Lease by failing to remit

$5,451.66 at the start of the fourth year of the Initial Term.

29. EACM has been damaged by Landlord's breach of the Lease in an

amount totaling $5,451.66.

30. Accordingly, EACM is entitled to a judgment against landlord the

amount of $5,451.66, plus interest, costs, andattorneys'

fees.

Second Cause of Action

(Breach of Contract - Failure to Pay for Repairs)


set forth herein.

32. Section 5 of the Lease provides EACM can only use the Demised

Premises "for the operation of a full-service retail cooperative grocery market which

operations include foodpreparation."

33. To comply with the proper use of the Demised Premises, EACM

and Landlord agreed on a plan to remodel the interior of the Demised Premises so

EACM could operate in accordance with the designated use of the Demised Premises.

34. Section 45 of the Lease provides that Landlord is required to

perform the work set forth in Exhibit C while EACM is required to perform the work set

forth in Exhibit D to execute this remodel plan.

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...."

35. Section 38 of the Lease requires EACM to have the remodel

designed by a certified architect or engineer and requires the Landlord to approve of

EACM's design for the remodel.

36. EACM had its remodel plans designed by a certified architect or

engineer and Landlord approved of EACM's design for the remodel of the Demised

Premises.

37. Exhibit C, Paragraph 14 of the Lease requires the landlord to

"coordinate and work closely with [EACM]'s design and construction team throughout

this process to ensure work performed is in accordance with [EACM]'s architectural

plans for the DemisedPremises."

38. Importantly, Section 36 of the Lease requires the Landlord to

"repair and maintain in good condition the foundation, roof, exterior, and interior load-

bearing walls of the Building...."

39. Exhibit D of the Lease (Lessee's Work) does not require EACM to

repair or otherwise maintain any portion of the roof to the Building.

40. The Lease provides that EACM is only required to repair or

maintain any structural elements of the Building (including the roof) that EACM

damages. Lease §§ 36, 38.

41. In order to execute EACM's plan to remodel the Demised

Premises, which Landlord previously approved, EACM was required to remove drywall

and wood-framed mezzanines within the Demised Premises.

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42. Latent defects in the steel roof trusses supporting the roof of the

Building were revealed in the course of removing the drywall and wood-framed

mezzanines from the Demised Premises.

43. EACM did not damage these steel roof trusses and is therefore not

responsible for their maintenance or repair.

44. Inasmuch as the steel roof trusses are integral to and a part of the

roof of the Building, Landlord is responsible for the maintenance and repair of the roof

trusses.

45. Pursuant to Section 13 of the Lease, Landlord is permitted to cure a

breach of the Lease within 30 days after it receives written notice of such breach from

EACM. Should Landlord fail to cure such breach of the Lease, EACM is permitted to

perform the Landlord's obligations under the Lease and Landlord is required to

reimburse EACM for the performance of such obligations within 30 days.

46. Upon discovering the latent defects in the steel roof trusses, EACM

provided Landlord with notice of his obligation to repair and maintain the roof.

47. More than 30 days passed and Landlord refused to repair and/or

maintain the steel roof trusses.

48. Accordingly, EACM proceeded to pay for the repair and

maintenance of the steel roof trusses. The total cost of such repairs and/or

maintenance was $115,677.00

49. On December 2, 2016, EACM sent Landlord an invoice reflecting

the costs to repair and maintain the steel roof trusses ("Invoice").(" Invoice"

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50. 30 days have passed since EACM sent Landlord the Invoice and

Landlord has failed to reimburse EACM for the performance of Landlord's obligations

under the Lease.

51. Accordingly, EACM has been damaged by Landlord's breach of the

lease in an amount totaling $115,677.00.

52. Therefore, EACM is entitled to a judgment against Landlord in the

amount of $115,677.00, plus interest, costs, andattorneys'

fees.

Third Cause of Action

(Breach of Contract - Failure to Maintain Property)


set forth herein.

54. As noted above, Landlord is required to "repair and maintain in

good condition the ... roof ... of theBuilding."

Lease § 36.

55. The latent defects discovered in the steel trusses of the roof show

that the roof has not been repaired or maintained in good condition.

56. Accordingly, Landlord is in breach of the Lease by not repairing

and/or maintaining the roof in good condition.

57. Landlord refused to cure his breach of the Lease.

58. Therefore, EACM was required to repair and/or maintain the roof in

good condition so it could continue with its remodel of the Demised Premises.

59. Accordingly, as a result of Landlord's breach, EACM was damaged

in the amount of $115,677.00.

60. Thus, EACM is entitled to judgment against landlord in the amount

of $115,677.00, plus interest, costs, andattorneys'

fees.

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Fourth Cause of Action

(Breach of Contract - Improper Charges)


set forth herein.

62. Section 4 of the Lease provides that EACM is required to pay the

specified base rent set forth in Exhibit B of the Lease as well as additional rent and

other charges required to be paid under the Lease.

63. Section 24 of the lease provides that EACM is required to pay its

proportionate share of certain "Common Area MaintenanceExpenses,"

which includes

landscaping, insurance premiums, repairs, maintenance, and other expenses related to

the Property.

64. Section 33 of the Lease provides that EACM is required to pay its

proportionate share of taxes, assessments, and other charges, assessed, levied, or

imposed on the Property, including all penalties or interest incurred due to EACM's late

payment of such taxes assessments, and other charges.

65. Section 24(B)(vii) of the Lease precludes Landlord from charging

EACM for "costs due to the negligence or willful misconduct of Lessor, its employees,

agents, contractors, orrepresentatives."

66. EACM has promptly paid its proportionate share of all taxes,

assessments, and other charges assessed, levied, or imposed on the Property.

67. Upon information and belief, Landlord has failed to timely pay taxes

and/or assessments levied against the Property and is incurring interest and penalties

upon such taxes.

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68. Upon information and belief, Landlord is charging, among other

improper charges, all or some of such penalties and/or interest to EACM through

improper Common Area Maintenance Expenses.

69. Accordingly, Landlord is charging EACM with costs due to

Landlord's negligence or willful misconduct - an act specifically precluded by the Lease.

70. Therefore, Landlord is in breach of the Lease by charging EACM

with improper Common Area Maintenance Expenses comprised of penalties and/or

interest from Landlord's failure to timely pay taxes and/or assessments levied against

the Property, among other improper charges.

71. Thus, EACM is entitled to a judgment against Landlord in an

amount to be determined at trial, including interest, costs, andattorneys'

fees.

Fifth Cause of Action

(Unjust Enrichment)


set forth herein.

73. As explained above, Landlord's actions have resulted in multiple

breaches of the Lease.

74. As explained above, Landlord is required to pay EACM $5,451.66

from the security deposit under the Lease.

75. By retaining the full security deposit and failing to remit such

payment to EACM, Landlord has been unjustly enriched at EACM's expense.

76. As explained above, EACM was not required to pay $115,677.00 to

repair and/or maintain the roof trusses for the Building under the Lease but did so due

to Landlord's failure to fulfil his obligations under the Lease.

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77. By failing to pay for the repairs and maintenance of the roof trusses

on the Building, Landlord has been unjustly enriched at EACM's expense.

78. As explained above, Landlord is improperly charging EACM with

Common Area Maintenance Expenses comprised of, among other improper charges,

interest and/or penalties for Landlord's failure to timely pay taxes and/or assessments

levied against the Property.

79. By improperly charging EACM with such improper Common Area

Maintenance Expenses, Landlord has been unjustly enriched at EACM's expense.

80. Landlord's unjust enrichment is to the detriment of EACM because

they have, among other things, been required to expend large sums of money to make

up for Landlord's inadequate or delinquent performance of its obligations.

81. It would be against equity and good conscience to permit Landlord

to retain and/or receive the financial benefits of its wrongful actions.

82. Accordingly, EACM is entitled to full and complete restitution,

including, without limitation, the payment of the portion of the security deposit due and

owing, the cost of repairing and/or maintaining the roof trusses, and the repayment of

any improper Common Area Maintenance Expenses.

83. Therefore, EACM is entitled to a judgment against Landlord in an

amount to be determined at trial, but no less than $121,128.66, plus interest, costs, and

attorneys'fees.

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WHEREFORE, EACM is entitled to judgment as follows:

a. On the First Cause of Action, a judgment against Landlord in the

amount of $5,451.66;

b. On the Second Cause of Action, a judgment against Landlord in the

amount of $115,677.00;

c. On the Third Cause of Action, a judgment against Landlord in the

amount of $115,677.00

d. On the Fourth Cause of Action, a judgment against Landlord in an

amount to be determined at trial;

e. On the Fifth Cause of Action, a judgment against Landlord in an

amount to be determined at trial, but no less than $121,128.66; and

f. Interest, costs,attorneys'

fees, disbursements and such other and

further relief this Court deems just and proper.

DATED: June 22, 2018

WEBSTER SZANYi LLP

Attomeys for P aintiff

East Auro o perative Market, Inc.

By:

'Mlchael P. McWaren, Esq.

Kevin G. Cope, Esq.

1400 Liberty Building

Buffalo, New York 14202

(716) 842-2800

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Documents

2018 03:04 PM · EACM repeats and realleges the preceding paragraphs as if fully set forth herein. 20. Pursuant to Section 27 of the Lease, EACM was required to provide Landlord with