FILED: NEW YORK COUNTY CLERK 11/27/2023 01:29 PM INDEX NO.

161520/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/27/2023

Date Index No. Purchased:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
------------------------------------X
ADAR 28 LLC and RYMSBRAN CONTINENTAL Index No.
CORP., :

Plaintiff, :

-against- : SUMMONS

: Plaintiff designates
CITY OF NEW YORK, DEPARTMENT OF New York County as the
CONSUMER AFFAIRS, DEPARTMENT OF place of trial
SANITATION, DEPARTMENT OF HEALTH
AND MENTAL HYGIENE

: The basis of the venue

Defendants. is: the principal place
: of business of the
Plaintiffs, 825 8th Ave,
: Suite 18N, New York NY
10019
and the situs of the
subject real property.
------------------------------------X

TO THE ABOVE NAMED DEFENDANTS:

YOU ARE HEREBY SUMMONED to answer the complaint in this

action and to serve a copy of your answer, or, if the complaint is
not served with this summons, to serve a notice of appearance, on
the Plaintiffs' attorney(s) within twenty (20) days after the
service of this summons, exclusive of the day of service, or within
thirty (30) days after the service is completed, 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.

Dated: New York, New York

November 22, 2023

Yours, etc.,

/s/ Doreen J. Fischman

Doreen J. Fischman

FISCHMAN & FISCHMAN

Attorneys for Plaintiff
2166 Broadway, Suite 6D
New York, New York 10024
(212) 274-0555

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Defendant’s Address: DEPARTMENT OF CONSUMER AFFAIRS

CITY OF NEW YORK 42 Broadway , No. 7
Law Department New York, New York 10004
100 Church Street
New York, New York 10007

DEPARTMENT OF SANITATION DEPARTMENT OF HEALTH AND MENTAL

125 Worth Street, rm 710 HYGIENE
New York, New York 10013 125 Worth Street
New York, New York 10013

s&c\byp15ryms.sum
S&C\byp18ryms.sum

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Date Index No. Purchased:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
------------------------------------X
ADAR 28 LLC and RYMSBRAN CONTINENTAL Index No.
CORP., :

Plaintiff, :

-against- : VERIFIED COMPLAINT

:
CITY OF NEW YORK, DEPARTMENT OF
CONSUMER AFFAIRS, DEPARTMENT OF
SANITATION, DEPARTMENT OF HEALTH
AND MENTAL HYGIENE

:
Defendants.
:

------------------------------------X

ADAR 28 LLC and RYMSBRAN CONTINENTAL CORP., by their

attorneys, Fischman & Fischman, complaining of the Defendants,

hereby allege as follows:

ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

1. The Plaintiff ADAR 28 LLC , (hereinafter referred to

as the “Owner”), a Delaware Limited Liability Company has an

interest in the property known as and located at 2341-59 Broadway

New York, New York 10024 a/k/a 231 West 85th Street(hereinafter

referred to as the “subject premises”), as Owner of and under that

certain 999 Year Lease and Grant of Term of Years (“999 Year

Lease”), dated as of April 24, 1990, originally by and between

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Rymsbran Continental Corp., a Domestic Business Corporation,

(“Rymsbran”), as Landlord, and Ralph Aryeh and Mahin

Aryeh,(“Aryeh”) as Tenant, a memorandum of which was recorded on

May 1, 1990 in Reel 1689, page 1958 in the City Register’s Office,

New York County, which interest of Aryeh was assigned to Rymsbran

on April 25, 1990 in a document recorded with the City Register’s

Office, New York County on May 2, 1990 in Reel 1689, page 2225, and

which interest was further assigned from Rymsbran to Adar 28 LLC

(“Adar”) pursuant to an Assignment, Acceptance of Assignment and

Assumption of Tenant’s Interest in 999 Year Lease and Grant Terms

dated May 22, 2019 and recorded with the City Register’s Office,

New York County on May 31, 2019 as Document 2019052900334004. As of

the date of this notice, Euclid Hall Associates, L.P., (“Euclid

Hall”) is the holder of the Owner’s interest as defined in the

Lease and it and its successors in interest is sometimes referred

to as “fee owner”, and Adar is the holder of the Tenant’s interest

as defined in the Lease and referred to herein as “Owner”.

2. ADAR and RYMSBRAN CONTINENTAL CORP.(hereinafter

referred to collectively as the “Plaintiffs”), leases commercial

spaces at the subject premises to various commercial operations

which operate businesses at the subject premises.

3. The Defendant, the City of New York (hereinafter

referred to as the “City”) upon information and belief is the

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governmental authority empowered with the duty to regulate

operators of business on the city streets and only permit those

vendors who are licensed to operate and is empowered to insure

safety and security to the citizens of the City of New York.

4. Upon information and belief the City has established

various governmental and quasi governmental agencies to handle

issues of proper vendors on the street of New York, including but

not limited to, the Department of Consumer Affairs (hereinafter

referred to as the “Consumer Affairs”), and the Department of

Health and Mental Hygiene (hereinafter referred to as “Health

Department”) and the Department of Sanitation (hereinafter referred

to as “Sanitation”).

5. The City, Consumer Affairs, Health Department and

Sanitation shall hereinafter collectively be referred to as the

Defendants.

6. The Plaintiffs repeatedly complained to various

agencies of the City, including, Consumer Affairs, Sanitation,

Health Department of the constant problems of unlicensed vendors

selling home made food constantly Monday through Saturday and have

a van parked on the Street with a trunk of food, which is adversely

affecting the business operations of the subject premises,

including in particular the Pizzeria and the fruit and vegetable

and grocery store and the rental of the vacant store at the subject

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premises.

7. The Plaintiffs made constant complaints to the

Defendants since September 1, 2022 regarding the vendors selling

food products in front of the subject premises without the required

permits and consents from the City of New York and with no permits

from the health department the illegal vendors occupied both

corners of West 85th Street and west 86th street on Broadway between

the hours of 11 a.m. and 2 p.m.

8. The vendors on the street between 85th Street and

86th Street have no license or permit to sell food and have no

license on display.

9. The vendors have been threatening and combative when

asked to display a license.

10. In addition to selling food without a license the

vendors block pedestrian traffic creating potential hazardous and

dangerous situations for other tenants of the Plaintiffs and

pedestrians.

11. The vendors also have a black van which circles the

area to supply the vendors with extra food and other concealed

packages.

12. The Plaintiffs continuously informed city agencies

of the illegal vendors and called 311 to file complaints against

these illegal vendors and the Defendants did nothing to respond to

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this situation despite the fact that the Plaintiffs made constant

complaints.

13. The commercial tenants complained to the Plaintiffs

of loss of revenue and requested compensation, refused to pay rent

and the Plaintiffs have been unable to rent the vacant store due to

these unlicensed vendors.

14. The Plaintiffs have suffered financial damages in

the amount of $930,000.00 as a result of the Defendants’ failure to

remove the illegal vendors and this situation remains unabated with

continuous losses.

15. In particular one of the tenants, Syros Pizza Corp.

claims that the illegal vendors have damaged its business

financially by taking business away from the pizza operation and as

a result thereof have deducted $12,000.00 a month discount in rent

and then left and vacated the subject premises due to the

substantial interference with their business. Thus Plaintiffs lost

$12,000.00 a month amounting to losses of $180,000.00 in rent.

16. The Plaintiffs have been unable to rent the corner

store on 86th Street and Broadway for the reason that these

unlicensed vendors make it impossible to rent the vacant store

since they park right in front of the store making it very

undesirable and these illegal vendors scare off potential customers

and said premises rent for a minimum of $36,000 to $50,000 a month

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for damages of at least a minimum of $540,000.00.

17. The Plaintiffs’ largest tenant, Broadway Fruit

Market LLC has been most severely economically damaged due to the

illegal vendors obstructing the sidewalk directly in front of the

vegetable, fruit and grocery store. As a result of these adverse

financial conditions due solely to these illegal vendors who have

not been stopped by the City, Broadway Fruit Market LLC has

required at least a $14,000.00 month rent concession since

September 2022 due to these horrific conditions. The Plaintiffs

through the date of the complaint suffered damages in the amount of

$210,000.00 and these damages have continued.

18. Despite repeated request to agencies of the City of

New York, including but not limited to, the Health Department,

Consumer Affairs and Sanitation nothing has been done to stop these

illegal vendors and have continued operating illegally.

19. In addition, the Police Department when called by

the Plaintiffs have refused to take any action and advised

Plaintiffs specifically that the City did not want the police

officers to take any action against the vendors.

20. At all times mentioned herein, the Defendants have

been advised of these illegal activities and has purposefully and

intentionally failed to take any action to remove these illegal

vendors who have interfered with the legitimate business at the

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subject premises and have made it impossible to rent vacant stores

at the subject premises.

21. At all times mentioned herein, various government

agencies have been apprised of these illegal vendors operating

without licenses and interfering with the proper businesses at the

subject premises and have failed to do nothing.

22. At all times mentioned the Defendants had authority

and were empowered to remove the illegal vendors from operating in

front of the subject premises.

23. At all times hereinafter mentioned the City

controlled the appropriate agencies to take charge of removing the

illegal vendors from operating in front of the subject premises.

24. The Defendants, armed with such knowledge and

experience were in a unique, exclusive and superior position to

insure the safety and integrity of the subject premises and failed

to properly exercise said obligation. The conduct of the Defendants

exhibit a wanton and wilful disregard for the safety and health of

the subject premises and the Plaintiffs’ property and right to

operate businesses at the subject premises.

25. At all times mentioned herein, the Defendants were

negligent in their duties at the subject premises.

26. Despite the power to remedy the situation at the

subject premises, the Defendants failed to take the time and effort

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to properly remedy the situation.

27. The Defendants were repeatedly apprised of the

conditions at the subject premises and ignored repeated complaints

and that the businesses leased or the spaces to be leased by the

Plaintiffs were greatly economically affected and that the

Plaintiffs would be vulnerable to less than reasonable efforts to

remove the illegal vendors. The Defendants armed with such

knowledge failed to make proper and adequate action. Instead, the

Defendants permitted an illegal operation with its knowledge and

failed to employ the Police Department to enforce the laws of the

City and allowed an illegal condition to continue unabated creating

an unreasonable risk of serious economic injury to the Plaintiffs.

The Defendants armed with such knowledge and experience was in a

unique, exclusive and superior position to insure the proper

operations of businesses at the subject premises and failed to take

proper action against the illegal activities and failed to properly

exercise its obligation.

28. The conduct of the Defendants exhibit a wanton and

wilful disregard for the safety, health and economic well being of

the Plaintiffs.

29. The Defendants are liable for all of the Plaintiffs’

damages including, but not limited to, the Plaintiffs’ economic

loss with regard to each of the causes of action plead herein.

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30. The Defendants are liable for all of the Plaintiffs’

damages including, but not limited to, Plaintiffs’ economic loss by

reason of the fact that the Defendants are vicariously liable for

the negligent acts and omissions of its employees, servants, agents

and/or subcontractors by the doctrine of respondent superior, with

regard to each of the causes of action plead herein.

31. The Defendants are liable for all of the Plaintiffs’

damages, including, but not limited to, the Plaintiffs’ economic

loss by reason of the fact that the Defendants acted with reckless

disregard for the safety of others.

32. The Defendants are liable for Plaintiffs’ damages,

including, but not limited to, Plaintiffs’ economic loss with

regard to each of the causes of action plead herein.

33. The Plaintiffs filed a notice of claim within 90

days of the incident and a copy of said claim is annexed hereto as

Exhibit A.

34. By reason of the aforesaid negligence of the

Defendants, the Plaintiff has been damaged in a sum exceeding the

jurisdictional limits of all lower courts, which would otherwise

have jurisdiction of this matter. By reason of the foregoing the

Plaintiffs seek an award of punitive damages as the conduct of the

City was wanton, willful and in complete disregard of the rights

and safety of the Plaintiffs.

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35. The Defendants have persistently failed to enforce

municipal laws, ordinances, and regulations governing street

vending activities, specifically in the vicinity of the Premises,

which has significantly disrupted the Plaintiffs' property and the

operations of its tenants, causing substantial financial harm.

36. The illegal street vendors, operating without valid

licenses or permits, have unlawfully occupied public spaces near

the Premises, engaging in the sale of food products during crucial

business hours, namely between 11:00 AM and 2:00 PM on regular

workdays.

37. The Defendants’ unauthorized activities have not

only violated the laws and regulations of the City but have also

detrimentally affected the businesses operating within the

Premises.

38. In light of these circumstances, Syros Pizza Corp,

a tenant within the Premises, has been forced to request a

substantial monthly rent reduction due to the loss of business

directly attributable to the illegal vendors' presence.

39. The vacant store at the corner of 86th Street and

Broadway remains unrentable due to the perpetual obstruction caused

by the illegal vendors.

40. Broadway Fruit Market LLC, another tenant, has

likewise sought a monthly rent reduction as a consequence of the

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financial setbacks resulting from the illegal vendors.

41. The Plaintiffs have diligently and repeatedly

contacted the Defendants through various means of communication,

including numerous phone calls to the City's 311 hotline more than

twenty (20) times, emails, and other correspondence, to explain the

ongoing situation, seek resolution, and request enforcement of

applicable laws. Regrettably, the Defendants inaction has

exacerbated the issue, resulting in continuing harm and ongoing

losses.

42. Despite Plaintiff's repeated attempts to seek

assistance and intervention from the Defendants, no meaningful

action has been taken by the Defendants to remedy the situation and

remove the illegal vendors from the Premises.

AS AND FOR A FIRST CAUSE OF ACTION

43. Plaintiffs repeat, reiterate and reallege paragraphs

1 through 42 as if set forth fully at length herein.

44. At all times mentioned herein, the Defendants had

the non-delegable duty to enforce the provisions of all applicable

statues, laws, ordinances, rules and regulations and to employ its

agencies, including but not limited to the Police Department to

arrest the illegal vendors and remove them from in front of the

subject premises.

45. As a result of the City's failure to enforce the

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laws and employ its agencies to perform proper operations to stop

the illegal vendors, the Plaintiffs were economically damaged.

46. As a result of the Defendants' wanton and wilful

actions of failure to properly enforce its laws, the Defendants

caused substantial damage to the subject premises damaging the

Plaintiffs’ leasehold interest and ability to earn a living, the

damages exceed the jurisdictional limits of all lower courts which

would otherwise have jurisdiction of this matter. By reason of the

foregoing the Plaintiffs seek an award of punitive damages as the

conduct of the Defendants was wanton, willful and in complete

disregard of the rights and safety of the Plaintiffs.

47. By the reason of the foregoing, the Plaintiffs have

been damaged in the amount of at least $930,000.00 through November

30, 2023 and continuing losses monthly at the rate of at least

$62,000.00 per month as a result of the failure of the Defendants

to enforce the applicable laws until the conditions are abated,

plus interest from September 1, 2022.

AS AND FOR A SECOND CAUSE OF ACTION

48. Plaintiffs hereby repeat, reiterate, and reallege

paragraphs 1 through 47 of this Complaint as if set forth fully at

length herein.

49. At all times mentioned herein, the Defendants had

the non-delegable duty to enforce the provisions of all applicable

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statutes, laws, ordinances, rules and regulations regarding illegal

vendors.

50. The Defendants failed to require the agencies within

its control to remove the unlicensed vendors from selling

merchandise on the sidewalks in front of the subject premises and

install in place appropriate safeguards to prevent such

unauthorized illegal activities to take place in front of the

subject premises. As a result of the Defendants’ failure to enforce

the applicable laws and employ various agencies of the City of New

York to enforce the applicable regulations, the Plaintiffs’

property was adversely affected and suffered an economic loss

through November 30, 2023 of $930,000.00 which continues monthly.

51. As a result of Defendants' aforesaid negligence, the

Plaintiff has been damaged in a sum exceeding jurisdictional limits

of all lower courts which would otherwise have jurisdiction of this

matter. The Plaintiffs have been damaged in the sum exceeding the

jurisdictional limits of all lower courts, which would otherwise

have jurisdiction of this matter, with regard to each cause of

action, separately and individually; together with interest costs

and disbursements. By reason of the foregoing Plaintiffs seek an

award of punitive damages as the conduct of the Defendants was

wanton, willful and in complete disregard of the rights and safety

of the Plaintiffs.

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52. The Defendants' conduct was wanton, reckless,

malicious, and/or exhibited a gross indifference to, and a callous

disregard for the safety, and the rights of the Plaintiffs.

53. The Plaintiffs have been damaged in the sum

exceeding the jurisdictional limits of all lower courts, which

would otherwise have jurisdiction of this matter, with regard to

each cause of action, separately and individually; together with

interest costs and disbursements.

WHEREFORE, the Plaintiffs respectfully request a

judgment be entered in favor of the Plaintiffs and against the

Defendants as follows:

a) On the Plaintiffs’ first cause of action

stated above, the sum of $930,00.00 through

November 30, 2023 and continuing monthly

thereafter at the rate of $62,000.00 a month

until the conditions are abated, plus interest

at the statutory rate from September 1, 2022

to the date of judgment;

b) On the Plaintiffs' second cause of action, an

award of punitive damages as the conduct of

the Defendants was wanton, willful and in

complete disregard of the rights and safety of

the Plaintiffs; and

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c) For such other and further relief as to the

Court may seem just, proper and equitable,

together with the costs and disbursements of

this action.

Dated: November 22, 2023

New York, New York

Yours, etc.,

/s/ Doreen J. Fischman

Doreen J. Fischman

FISCHMAN & FISCHMAN

Attorneys for Plaintiff
2116 Broadway, Suite 6D
New York, NY 10024
(212) 274-0555
doreen.fischman@verizon.net

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