COUNTY OF NEW YORK Index No. /2017...TO: 45 East 22nd Street Property LLC c/o The Continuum Company...

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK

RAPSON INVESTMENTS LLC, ACTONPROPERTIES LLC, and NORTHPOINTPROPERTIES LLC,

Plaintiffs,

-against-

45 EAST 22ND STREET PROPERTY LLC,

Defendant.

Index No. /2017

SUMMONS

TO THE ABOVE-NAMED DEFENDANT:

YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve

a copy of your answer on Plaintiffs' attorneys within 20 days after the service of this summons,

exclusive of the day of service (or within 30 days after the service is complete if this summons is

not personally delivered to you within the State of New York); and in case of your failure to

appear or answer, judgment will be taken against you by default for the relief demanded in the

complaint.

Plaintiffs designate New York County as the place of trial. The basis of venue is CPLR

§§ 503(a) and 507.

Dated: New York, New YorkOctober 6, 2017

By:

TART KRINSKY & 1 ROGIN LLPAt s for laintijfs

Ap-h4geme/Areiony D

nathan Erittany K. a o

1350 BroadwayNew York, New York 10018(212) [email protected]@tarterkrinsky.com [email protected]

FILED: NEW YORK COUNTY CLERK 10/06/2017 04:21 PM INDEX NO. 158967/2017

NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/06/2017

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TO: 45 East 22nd Street Property LLCc/o The Continuum Company LLC30 West 21st StreetNew York, New York 10010

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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK

RAPSON INVESTMENTS LLC, ACTONPROPERTIES LLC, and NORTHPOINTPROPERTIES LLC,

Plaintiffs,

-against-

45 EAST 22ND STREET PROPERTY LLC,

Defendant.

Index No. /2017

COMPLAINT

Plaintiffs, Rapson Investments LLC ("Rapson"), Acton Properties LLC ("Acton") and

Northpoint Properties LLC ("Northpoint" and, collectively, "Plaintiffs"), by their attorneys,

Tarter Krinsky & Drogin LLP, by way of their Complaint against Defendant, 45 East 22nd Street

Property LLC ("Defendant"), allege and state as follows:

NATURE OF THE ACTION

1. This action arises out of an unlawful breach and termination of written purchase

agreements for the sale of certain condominium units, namely, Unit Nos. 24B ("Unit 24B"), 29A

("Unit 29A"), 29B ("Unit 29B"), 52A ("Unit 52A") and 52B ("Unit 52B" and, collectively, the

"Units"), located at 45 East 22nd Street, New York, New York 10010 (the "Property"), by

Defendant, the owner of the Property and Sponsor of the 45 East 22nd Street Condominium

located at 45 East 22nd Street, New York, New York 10010 (the "Condominium").

THE PARTIES

2. At all times relevant herein, Plaintiff, Rapson Investments LLC, is a limited

liability company, duly organized and existing under the laws of the State of Delaware.



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3. At all times relevant herein, Plaintiff, Acton Properties LLC, is a limited liability

company, duly organized and existing under the laws of the State of Delaware.

4. At all times relevant herein, Plaintiff, Northpoint Properties LLC, is a limited

liability company, duly organized and existing under the laws of the State of Delaware.

5. Upon information and belief, at all relevant times herein, Defendant, 45 East 22nd

Street Property LLC, is a limited liability company, duly organized and existing under the laws

of the State of Delaware, c/o The Continuum Company LLC, 30 West 21st Street, New York,

New York 10010.

6. Upon information and belief, Defendant is the Sponsor of the Condominium

under the Condominium Offering Plan (the "Offering Plan") submitted to the Office of the

Attorney General of the State of New York.

7. Upon information and belief, the Condominium is a condominium association

organized pursuant to Article 9-B of the Real Property Law of the State of New York.

8. As the Sponsor of the Condominium, Defendant, among other things, offers for

sale and/or sells apartment units in the Condominium, in accordance with the Offering Plain.

JURISDICTION

9. This Court has personal and subject matter jurisdiction pursuant to, among other

things, paragraph 30.2 of each of the purchase agreements at issue, which provide that:

As of the execution of this Agreement, Purchaser acknowledges andagrees that all disputes arising, directly or indirectly, out of or relating tothis Agreement may be dealt with and adjudicated in the state courts ofNew York or the federal courts sitting in New York, and hereby expresslyand irrevocably submits the person of Purchaser to the jurisdiction of suchcourts in any suit, action or proceeding arising, directly or indirectly, outof or relating to this Agreement. So far as is permitted under the applicablelaw, this consent to personal jurisdiction shall be self-operative and nofurther instrument or action shall be necessary in order to conferjurisdiction upon the person of Purchaser in any such court.

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10. Further, this Court has personal and subject matter jurisdiction pursuant to New

York Civil Practice Law and Rules ("CPLR") §§ 301 and 302(a) because Defendant's place of

business is located in the State of New York, Defendant is authorized to do business in the State

of New York and the acts complained of herein occurred in the State of New York.

11. Venue in the County of New York is proper pursuant to CPLR § 503(a) based on

the places of business of Defendant in New York County, as well as under CPLR § 507 because

the controversy concerns the real property located within New York County.

FACTS COMMON TO ALL CAUSES OF ACTION

12. This action for damages and other relief arises out of Defendant's breach of the

express terms of the purchase agreements with Plaintiffs for the purchase and sale of the Units,

as well as Defendant's improper attempt to terminate these same purchase agreements.

13. As set forth in greater detail below, to date, Plaintiffs collectively have paid the

amount of $5,874,500.00 representing the contract deposits to secure the purchase of the Units.

14. In particular, Plaintiffs sought an extension of time from Defendant to meet their

obligations under the terms of the purchase agreements. On or about August 28, 2017,

Defendant agreed to an extension to February 28, 2018 so long as Plaintiffs released the

escrowed contract deposits in the amount of $5,874,500.00 to Defendant.

15. With the $5,874,500.00 released from escrow and in Defendant's hand, on or

about September 25, 2017, Defendant issued notices of termination, purporting to terminate the

purchase agreements. As set forth below, Defendant's actions were not only in violation of the

express terms of the purchase agreements, but also clearly were made in bad faith and intended

to take advantage of the current state of the Manhattan real estate market.

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16. As a result, Defendant has deprived Plaintiffs of their contractually bargained-for

rights and of their substantial investment totaling well into the many millions of dollars in order

to re-sell the Units on more favorable terms.

I. UNIT 24B

17. Rapson and Defendant entered into an agreement to purchase Unit 24B, namely:

the Agreement, made as of June 24, 2015 (the "24B Agreement"), the Rider to the 24B

Agreement, made as of June 24, 2015 (the "24B Rider"), and the First Amendment to the 24B

Agreement, dated August 28, 2017 (the "24B Amendment" and, collectively, the "24B Purchase

Agreement).

18. Pursuant to paragraphs 3.1 and 4.1 of the 24B Agreement, Defendant agreed to

sell, and Rapson agreed to buy, Unit 24B located at the Property for a total "purchase price" of

$3,200,000.00.

19. Pursuant to paragraph 2 of the 24B Amendment, Rapson agreed to release to

Defendant the "Down Payment" from escrow — the amount of $640,000.00.

20. Pursuant to paragraph 7 of the 24B Amendment, Rapson and Defendant agreed to

extend the closing date of Unit 24B to on or before February 28, 2018.

21. Paragraph 3 of the 24B Amendment provides that "Carrying Fee was due to the

Escrow Agent no later than August 31, 2017.

22. In the event of a default of paragraph 3 of the 24B Amendment, Section 15.2 of

the 24B Purchase Agreement, in relevant part, provides:

If Purchaser fails to make such payment when required as herein providedor fails to perform any of Purchaser's other obligations hereunder,[Defendant] shall give written notice to Purchaser of such default. If suchdefault shall not be cured within thirty (30) days thereafter, [Defendant]may, at its option, cancel this Agreement by notice of cancellation toPurchaser.

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(emphasis added).

23. On or about September 7, 2017, Defendant sent a Notice of Default to Rapson

(the "24B Default Notice"), asserting that Rapson had defaulted under the 24B Agreement by

missing a "required payment." A copy of the 24B Default Notice is annexed hereto as Exhibit

A.

24. Thus, pursuant to 15.2 of the 24B Purchase Agreement, Rapson had thirty days to

cure the alleged default from September 7, 2017, i.e., to and including October 7, 2017.

25. Rather than fulfill its contractual obligations and provide Rapson with its

contractually bargained-for right to cure the alleged default, Defendant issued a Notice of

Termination of the 24B Purchase Agreement, dated September 25, 2017 (the "24B Termination

Notice"), which purported to terminate the 24B Purchase Agreement in its entirety on the basis

that Rapson allegedly failed to make the "Carrying Fee" payment by August 31, 2017. A copy

of the 24B Ten iination Notice is annexed hereto as Exhibit B.

26. Thereafter, Rapson responded to the 24B Termination Notice in a letter, dated

September 26, 2017, advising Defendant that it must rescind the 24B Termination Notice since

Defendant had violated Section 15.2 of the 24B Purchase Agreement by purporting to terminate

the 24B Purchase Agreement without affording Rapson its full right to cure the purported

default. A copy of the September 26 letter is annexed hereto as Exhibit C.

27. To date, Rapson already has paid Defendant approximately $640,000.00 towards

the purchase of Unit 24B.

28. Notwithstanding the payment of this substantial sum of money, Defendant has

failed or otherwise refused either to respond to the September 26 letter or to acknowledge that

the 24B Purchase Agreement remains in full force and effect.

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29. Rather than comply with its contractual obligations and confirm that the 24B

Purchase Agreement is a valid, binding and enforceable contract, Defendant has maintained its

position that the 24B Purchase Agreement has been terminated pursuant to the 24B Termination

Notice.

30. Defendant's purported termination of the 24B Purchase Agreement is not only

improper and violates Rapson's contractual rights; it will also cause Rapson to be irreparably

harmed. Unit 24B is highly unique in character and location, which is the reason why Rapson

entered into the 24B Purchase Agreement in the first place. If Defendant is permitted to

terminate the 24B Purchase Agreement, Rapson will suffer incalculable damage because it will

be deprived of its opportunity to purchase a special and distinct piece of real property in

Manhattan.

UNITS 29A AND 29B

31. Acton and Defendant entered into an agreement to purchase Unit 29A, namely,

the Agreement, made as of June 8, 2015 (the "29A Agreement"), the Rider to the Agreement,

made as of June 8, 2015, the First Amendment to Agreement, dated June 8, 2015, and the Second

Amendment to Agreement, dated August 28, 2017 (the "29A Second Amendment") collectively,

the "29A Purchase Agreement").

32. Acton and Defendant also entered into an agreement to purchase Unit 29B,

namely, the Agreement, made as of June 8, 2015 (the "29B Agreement"), the Rider to the

Agreement, made as of June 8, 2015, the First Amendment to Agreement, dated June 8, 2015,

and the Second Amendment to Agreement, dated August 28, 2017 (the "29B Second

Amendment" and, collectively, the "29B Purchase Agreement").

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33. Pursuant to paragraphs 3.1 and 4.1 of the 29A and 29B Agreements, Defendant

agreed to sell, and Acton agreed to buy, Units 29A and Unit 29B for $5,935,000.00 and

$4,550,000.00, respectively.

34. Pursuant to paragraph 3 of the 29A Second Amendment, Acton agreed to release

to Defendant the "Down Payment" from escrow — the amount of $1,187,000.00.

35. Pursuant to paragraph 3 of the 29B Second Amendment, Acton agreed to release

to Defendant the "Down Payment" from escrow — the amount of $910,000.00.

36. Pursuant to paragraph 7 of the 24A and 24B Second Amendments, Acton and

Defendant agreed to extend the closing date of Units 24A and 24B to on or before February 28,

2018.

37. Paragraph 3 of 29A and 29B Second Amendment provides that a "Carrying Fee"

was due to the Escrow Agent no later than August 31, 2017.

38. In the event of a default of paragraph 3 of the 29A and 29B Second Amendments,

Section 15.2 of the 29A and 29B Agreements, in relevant part, provide:


(emphasis added).

39. On or about September 7, 2017, Defendant sent Notices of Default to Acton (the

"29A/29B Default Notices"), asserting that Acton had defaulted under the 29A and 29B

Purchase Agreements by missing a "required payment." A copy of the 29A/29B Default Notices

are annexed hereto as Exhibit D.

40. Thus, pursuant to 15.2 of the 29A and 29B Purchase Agreements, Acton had

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thirty days to cure the alleged default from September 7, 2017, i.e., to and including October 7,

2017.

41. Rather than fulfill its contractual obligations and provide Acton with its

contractually bargained-for right to cure the alleged defaults, Defendant issued Notices of

Termination of the 29A and 29B Purchase Agreements, dated September 25, 2017 (the "29A and

29B Termination Notices"), which purported to terminate the 29A and 29B Purchase

Agreements in their entirety on the basis that Acton allegedly failed to make the "Carrying Fee"

payments by August 31, 2017. A copy of the 29A and 29B Termination Notices are annexed

hereto as Exhibit E.

42. Thereafter, Acton responded to the 29A and 29B Termination Notices in letters,

dated September 26, 2017, advising Defendant that it must rescind the 29A and 29B Teiiiiination

Notices since Defendant had violated Section 15.2 of the 29A and 29B Purchase Agreements by

purporting to terminate the 29A and 29B Purchase Agreements without affording Acton its full

right to cure the purported default. Copies of the September 26 letters are annexed hereto as

Exhibit F.

43. To date, Acton already has paid Defendant approximately $1,187,000.00 towards

the purchase of Unit 29A.

44. To date, Acton already has paid Defendant approximately $910,000.00 towards

the purchase of Unit 29B.

45. Notwithstanding the payment of these substantial sums of money, Defendant has

failed or otherwise refused either to respond to the September 26 letter or to acknowledge that

the 29A and 29B Purchase Agreements remain in full force and effect.

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46. Rather than comply with its contractual obligations and confirm that the 29A and

29B Purchase Agreements are valid, binding and enforceable contracts, Defendant has

maintained its position that the 29A and 29B Purchase Agreements have been terminated

pursuant to the 29A and 29B Teimination Notices.

47. Defendant's purported termination of the 29A/29B Purchase Agreements are not

only improper and violate Acton's contractual rights; it will also cause Acton to be irreparably

harmed. Unit 29A and Unit 29B are highly unique in character and location, which is the reason

why Acton entered into the 29A and 29B Purchase Agreements in the first place. If Defendant is

permitted to terminate the 29A and 29B Purchase Agreements, Acton will suffer incalculable

damage because it will be deprived of its opportunity to purchase a special and distinct piece of

real property in Manhattan.

UNITS 52A AND 52B

48. Northpoint and Defendant entered into an agreement to purchase Unit 52A,

namely, the Agreement, made as of June 24, 2015 (the "52A Agreement") and the Rider to the

52A Agreement, made as of June 24, 2015.

49. Northpoint and Defendant also entered into an agreement to purchase Unit 52B,

namely, the Agreement, made as of June 25, 2015 (the "52B Agreement"), and the Rider to the

52A Agreement, made as of June 25, 2015.

50. Northpoint and Defendant amended both the 52A and 52B Agreements pursuant

to a First Amendment to Agreement, dated August 28, 2017 (the "52AB Amendment" and,

together with the 52A and 52B Agreements and their respective Riders, the "52A and 52B

Purchase Agreements").1

The 52A and 52B Purchase Agreements incorrectly name Northpoint as "Northpoint LLC" rather than"Northpoint Properties LLC."

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51. Pursuant to paragraphs 3.1 and 4.1 of the 52A and 52B Agreements, Defendant

agreed to sell, and Northpoint agreed to buy, Unit 52A and Unit 52B for $10,025,000.00 and

$8,125,000.00, respectively.

52. Pursuant to paragraph 3 of the 52AB Amendment, Northpoint agreed to release to

Defendant the "Down Payments" for both Units 52A and 52B from escrow — the amounts of

$2,005,000.00 and $1,132,500.00, respectively.

53. Pursuant to paragraph 7 of the 52AB Amendment, Northpoint and Defendant

agreed to extend the closing date of Units 52A and 52B to on or before February 28, 2018.

54. Paragraph 3 of 52AB Amendment provides that a "Carrying Fee" was due to the

Escrow Agent no later than August 31, 2017.

55. In the event of a default of paragraph 3 of the 52AB Amendment, Section 15.2 of

the 52A and 52B Purchase Agreements, in relevant part, provides:


56. On September 7, 2017, Defendant sent Notices of Default to Northpoint (the

"52A and 52B Default Notices"), asserting that Northpoint had defaulted under the 52A and 52B

Purchase Agreements by missing a "required payment." Copies of the 52A and 52B Default

Notices are annexed hereto as Exhibit G.

57. Thus, pursuant to 15.2 of the 52A and 52B Purchase Agreements, Northpoint had

thirty days to cure the alleged default from September 7, 2017, i.e., to and including October 7,

2017.

58. Rather than fulfill its contractual obligations and provide Northpoint with its

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contractually bargained-for right to cure the alleged defaults, Defendant issued a Notices of

Termination of the 52A and 52B Purchase Agreements, dated September 25, 2017, (the "52A

and 52B Termination Notices"), which purported to terminate the 52A and 52B Purchase

Agreements in their entirety on the basis that Northpoint allegedly failed to make the "Carrying

Fee" payments by August 31, 2017. Copies of the 52A and 52B Termination Notices are

annexed hereto as Exhibit H.

59. Thereafter, Northpoint responded to the 52A and 52B Termination Notices in

letters, dated September 26, 2017, advising Defendant that it must rescind the 52A and 52B

Termination Notices since Defendant had violated Section 15.2 of the 52A and 52B Purchase

Agreements by purporting to terminate the 52A and 52B Purchase Agreements without affording

Northpoint its full right to cure the purported default. Copies of the September 26 Letters are

annexed hereto as Exhibit I.

60. To date, Northpoint already has paid Defendant approximately $2,005,000.00

towards the purchase of Unit 52A.

61. To date, Northpoint already has paid Defendant approximately $1,132,500.00

towards the purchase of Unit 52B.

62. Notwithstanding the payment of these substantial sums of money, Defendant has

failed or otherwise refused either to respond to the September 26 letters or to acknowledge that

the 52A and 52B Purchase Agreements remain in full force and effect.

63. Rather than comply with its contractual obligations and confirm that the 52A and

52B Purchase Agreements are valid, binding and enforceable contracts, Defendant has

maintained its position that the 52A and 52B Purchase Agreements have been terminated

pursuant to the 52AB Termination Notices.

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64. Defendant's purported termination of the 52A and 52B Purchase Agreements are

not only improper and violate Northpoint's contractual rights; it will also cause Northpoint to be

irreparably harmed. Unit 52A and Unit 52B are highly unique in character and location, which is

the reason why Northpoint entered into the 52A and 52B Purchase Agreements in the first place.

If Defendant is permitted to terminate the 52A and 52B Purchase Agreements, Northpoint will

suffer incalculable damage because it will be deprived of its opportunity to purchase a special

and distinct piece of real property in Manhattan.

IV. DEFENDANT'S BAD FAITH

65. Defendant's purported terminations of the purchase agreements between the

parties was made in bad faith and for the deliberate purpose of circumventing Plaintiffs'

contractual rights in order allow Defendants to re-list the Units and re-sell them on more

favorable terms.

66. By way of example, on or about August 28, 2017, Plaintiffs agreed to release the

down payments for the Units that were being held in escrow in the total amount of $5,874,500.00

to Defendant in exchange for an extension of time for the closing dates to on or before February

28, 2018.

67. Defendant accepted the $5,874,500.00 from Plaintiffs, but, nevertheless, issued

the foregoing termination notices purportedly terminating Plaintiff s right to close under the

purchase agreements in order to take advantage of the real estate market. Defendant's bad faith

is demonstrated by a September 14, 2017 email from Peter Campbell, Defendant's in-house

counsel, wherein he acknowledged that Defendant has seen "incredible sales activity in the

building" and that Defendant believes that the Units "could easily be sold and closed."

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68. Moreover, it recently has come to Plaintiffs' attention that Defendant has, in fact,

re-listed Units 29A and 29B for sale through Douglas Elliman notwithstanding Plaintiffs'

contractual right to cure the alleged defaults. Copies of screenshots of the online listings are

annexed hereto as Exhibit J.

69. Notably, the list price for Unit 29B is $400,000.00 more than the purchase price

in the 29B Purchase Agreement, signaling a clear intent on the part of Defendants to re-sell the

Units on terms that they deem to be better than those set forth in the purchase agreements with

Plaintiffs.

AS AND FOR A FIRST CAUSE OF ACTION (Declaratory Judgment)

70. Plaintiffs repeat, reiterate and reallege each and every allegation contained in the

foregoing paragraphs with the same force and effect as though more fully set forth at length

herein.

71. As set forth more fully above, Plaintiffs contend that: (i) the purchase agreements

remain existing, valid and enforceable contracts; (ii) Defendant breached paragraph 15.2 of the

purchase agreements by issuing termination notices and failing to afford Plaintiffs the full

contractually bargained-for opportunity to cure the alleged default of the purchase agreements;

and (iii) Plaintiffs are entitled to a full opportunity to cure their default, if any, in accordance

with the express terms of the purchase agreements as of the date that this Court declares that the

purchase agreements remain existing, valid and enforceable contracts.

72. As set forth more fully above, Defendant contends that: (i) the purchase

agreement have been temtinated pursuant to the termination notices; (ii) Defendant did not

breach paragraph 15.2 of purchase agreements by issuing the termination notices; and (iii)

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Plaintiffs had a full opportunity to cure its default, if any, in accordance with the express teiiiis of

the purchase agreements.

73. As such, an actual and justiciable controversy has arisen and now exists between

Plaintiffs and Defendant concerning their respective rights and obligations. Plaintiffs and

Defendant each assert a contradictory understanding concerning their respective rights and

obligations.

74. Plaintiffs have no adequate remedy at law.

75. Accordingly, Plaintiffs seek a declaratory judgment declaring or determining: (i)

the purchase agreements remain existing, valid and enforceable contracts; (ii) Defendant

breached paragraph 15.2 of all the purchase agreements by issuing the termination notices and

failing to afford Plaintiffs the full contractually bargained-for opportunity to cure the alleged

default of the purchase agreements; and (iii) Plaintiffs are entitled to a full opportunity to cure its

default, if any, in accordance with the express terms of the purchase agreements as of the date

that this Court declares that the purchase agreements remain existing, valid and enforceable

contracts.

AS AND FOR A SECOND CAUSE OF ACTION(Breach of Contract)



herein.

77. At all times relevant herein, the purchase agreements constituted valid,

enforceable and binding contracts between the Plaintiffs and Defendant.

78. Defendant breached paragraph 15.2 of the purchase agreements by failing and

refusing to provide Plaintiffs with the prescribed cure period to remedy any alleged default and

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by issuing the termination notices to Plaintiffs in an attempt to prematurely terminate the

purchase agreements.

79. Defendant's failures to satisfy its obligation under the purchase agreements

constitute a material breach of the purchase agreements.

80. By reason of the foregoing, as a direct consequence of Defendant's breach of the

purchase agreements, Plaintiffs have been damaged in an amount to be determined at trial, but in

no event less than the amount of $5,874,500.00 that Plaintiffs collectively have paid to

Defendant, together with pre judgment interest, costs, disbursements and reasonable attorneys'

fees.

AS AND FOR A THIRD CAUSE OF ACTION (Breach of the Implied Covenant of Good Faith and Fair Dealing)

8 1 . Plaintiffs repeat, reiterate and reallege each and every allegation contained in the


herein.

82. By entering into the foregoing purchase agreements with Plaintiffs, including by

entering into amendments to the purchase agreements whereby Plaintiffs agreed to release funds

being held in escrow in the total amount of $5,874,500.00 to Defendant in exchange for an

extension of the closing date of the Units to on or before February 28, 2018, Defendant had an

implied covenant to act in good faith and in fair dealing in the course Defendant's performance

of its contractual obligations.

83. Defendant intentionally and deliberately acted in bad faith by, among other

things, purporting to terminate the foregoing purchase agreements without affording Plaintiffs

their contractually bargained-for right to cure an alleged default for the specific and express

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purpose of placing the Units back on the market for sale in order to sell the Units on more

favorable terms.

84. Defendant's bad faith is demonstrated by, among other things, Defendant's

improper purported termination of the purchase agreements after entering into amendments to

the purchase agreements whereby Plaintiffs agreed to release funds being held in escrow in the

amount of $5,874,500.00 to Defendant in exchange for an extension of the closing date of the

Units to on or before February 28, 2018.

85. Defendant's improper motive to deprive Plaintiffs of their contractually

bargained-for rights by re-selling the Units on more favorable terms is further demonstrated by

the acknowledgment of its in-house counsel that Defendant has seen "incredible sales activity in

the building" and that Defendant believes that the Units "could easily be sold and closed."

86. Defendant's bad faith and improper motive is further evidenced by, among other

things, that Defendant re-listed Units 29A and 29B for sale, with Unit 29B being re-listed for

more money than the purchase price in the 29B Purchase Agreement.

87. Defendant's actions have the effect of destroying or injuring the rights of

Plaintiffs to receive the fruits of their contracts with Defendant.

88. Defendant's actions have frustrated the basic purpose of the parties' contracts by

preventing Plaintiffs from closing on their purchase of the Units.

89. As a result of the foregoing, Plaintiffs have been damaged in an amount to be

determined at trial, but in no event less than the amount of $5,874,500.00 that Plaintiffs

collectively have paid to Defendant, together with pre judgment interest, costs, disbursements

and reasonable attorneys' fees.

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AS AND FOR A FOURTH CAUSE OF ACTION (Injunctive Relief)



herein.

91. By reason of Defendant's breach of the purchase agreements, Plaintiffs will suffer

irreparable harm unless Defendant and its agents, representatives, officers, directors, members,

managers and/or employees, and all persons acting in concert with them or on their behalf, are

restrained and enjoined from selling, transferring, mortgaging, pledging, assigning or otherwise

encumbering or affecting title to the Units.

92. In the absence of injunctive relief, Defendant will be free to pursue another sale of

the Units and therefore Plaintiffs will be deprived of its contractual rights under the purchase

agreements to purchase the Units, a highly unique parcel of real property in both location and

character.

93. A preliminary and permanent injunction is necessary to maintain the status quo

and to prevent further irreparable harm to Plaintiffs.

94. Plaintiffs have no adequate remedy at law.

95. By reason of the foregoing, Plaintiffs are entitled to a preliminary and permanent

injunction restraining and enjoining Defendant and its agents, representatives, officers, directors,

members, managers and/or employees, and all persons acting in concert with them or on their

behalf, from selling, transferring, mortgaging, pledging, assigning or otherwise encumbering or

affecting title to the Units.

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AS AND FOR A FIFTH CAUSE OF ACTION (Unjust Enrichment)



herein.

97. Defendant has benefitted and been unjustly enriched to the detriment of Plaintiffs

by retaining the payments it received from Plaintiffs in the amount of $5,874,500.00 in exchange

for the extension of the closing date of the Units to on or before February 28, 2018.

98. Defendant's actions have caused Plaintiffs to suffer economic loss, injury and

damages.

99. It is against equity and good conscience to allow Defendant to retain the monies

that Plaintiffs have paid to Defendant while depriving Plaintiffs of the benefit of their

contractually bargained-for rights.

100. As a result of the foregoing, Plaintiffs have been damaged in an amount to be

determined at trial, but in no event less than the amount of $5,874,500.00 that Plaintiffs

collectively have paid to Defendant, together with pre judgment interest, costs, disbursements

and reasonable attorneys' fees.

WHEREFORE, Plaintiffs, Rapson Investments LLC, Acton Properties LLC and

Northpoint Properties LLC, demand judgment in its favor against Defendant, 45 East 22nd Street

Property LLC, as follows:

A. On the First Cause of Action, a judgment declaring or determining: (i) Plaintiffs'

purchase agreements remain existing, valid and enforceable contracts; (ii)

Defendant breached paragraph 15.2 of all the purchase agreements by issuing the

termination notices and failing to afford Plaintiffs the full contractually bargained-

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for opportunity to cure the alleged default of the purchase agreements; and (iii)

Plaintiffs are entitled to a full opportunity to cure its default, if any, in accordance

with the express terms of the purchase agreements as of the date that this Court

declares that the purchase agreements remain existing, valid and enforceable

contracts.

B. On the Second Cause of Action, for damages in an amount to be determined at

trial, but in no event less than the amount of $5,874,500.00 that Plaintiffs

collectively have paid to Defendant, together with pre judgment interest, costs,

disbursements and reasonable attorneys' fees;

C. On the Third Cause of Action, for damages in an amount to be determined at trial,

but in no event less than the amount of $5,874,500.00 that Plaintiffs collectively

have paid to Defendant, together with pre judgment interest, costs, disbursements

and reasonable attorneys' fees;

D. On the Fourth Cause of Action, granting a preliminary and permanent injunction

restraining and enjoining Defendant and its agents, representatives, officers,

directors, members, managers and/or employees, and all persons acting in concert

with them or on their behalf, from selling, transferring, mortgaging, pledging,

assigning or otherwise encumbering or affecting title to the Units;

E. On the Fifth Cause of Action, for damages in an amount to be determined at trial,

but in no event less than the amount of $5,874,500.00 that Plaintiffs collectively

have paid to Defendant, together with pre-judgment interest, costs, disbursements

and reasonable attorneys' fees; and

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F. Granting Plaintiffs such other and further relief as may appear just, equitable and

proper to this Court.

Dated: New York, New YorkOctober 6, 2017 TARTER KRINSKY & DROGIN LLP

Attor s for Plaintiffs

oughertyan E. Temchi

Br tany K. Laz13 Br ay, 11th Fl.New York, New York 10018(212) 216-8000adoughertygtarterkrinsky.comj temchingtarterkrinsky.com [email protected]

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COUNTY OF NEW YORK Index No. /2017...TO: 45 East 22nd Street Property LLC c/o The Continuum Company...

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Transcript of COUNTY OF NEW YORK Index No. /2017...TO: 45 East 22nd Street Property LLC c/o The Continuum Company...