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Aprile v. Men of Invention LLC

Supreme Court of New York, New York County

September 13, 2013

George APRILE, Plaintiff
v.
MEN OF INVENTION LLC, d/b/a Silver Lining, Joseph Schwartz, Terry Dieterle, Jr., and Sasha Petraske, Defendants. No. 652726/13.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Dobrenko & Associates, P.C., by Walter Dobrenko, Esq., Astoria, Attorneys for Plaintiff.

David A. Kaminsky & Associates, P.C., by David A. Kaminsky, Esq., New York, Attorneys for Defendants.

MANUEL J. MENDEZ, J.

Upon a reading of the foregoing cited papers, it is ordered that this motion for an order enjoining the defendants from selling, destroying and/or removing any of the furniture fixtures and equipment from the bar restaurant located a lower level basement/cellar at 75 Murray Street, New York, NY, and compelling defendants to turn over the keys to the premises on or before September 15, 2013 and permit plaintiff to take possession is denied. Defendants cross motion to extend the time to remove their possessions is granted.

Plaintiff, along with defendants Schwartz, Dieterle Jr., and Petraske formed Men of Invention, LLC, for the purpose of operating a Bar Restaurant at premises located at 75 Murray Street, New York, N.Y. The LLC's operating agreement dated in June of 2010 provided that plaintiff would have a 33% membership interest, Defendant Schwartz 31%, Dieterle, Jr. 31% and Petraske 5%. It also allocated profits and losses in the same proportion. In accordance with the operating agreement at paragraph 17, " The company shall dissolve upon the earliest to occur of the following: (i) September 30, 2013(ii) the termination of the lease between Bogardus, LLC and the company (iii) the unanimous consent of the members or (iv) such date upon which dissolution occurs pursuant to Section 701 of the LLCL (see operating agreement Exhibit A).

In July of 2010 defendant Men of Invention, LLC (as tenant) entered into a lease with Bogardus, Inc., (as owner) for the premises located at 75 Murray Street New York, N.Y. commencing on September 15, 2010 and expiring September 14, 2013. Plaintiff is a member of Bogardus, Inc., but it is suing in his individual capacity as both a member of Bogardus, Inc., and as a member of defendant Men of Invention, LLC.

At paragraph 52 the lease states:

" Upon the expiration or other termination of the term of this lease tenant shall quit and surrender to owner the demised premises, broom clean, in good order and condition, ordinary wear and tear and damages which tenant is not required to repair as provided elsewhere in this lease excepted, and tenant shall remove all property from the demised premises. "

At paragraph 54 the lease states:

" .....all fixtures, paneling, partitions, railings, and like installations, installed in the premises, at any time by tenant or on its behalf, shall become the property of owner and shall remain upon and be surrendered with the demised premises unless owner, by notice to tenant prior to the date fixed as the termination of the lease, elects to relinquish owners' right thereto, in which event the same shall be removed by tenant at tenant's expense....."

At Paragraph 56 the lease states:

" The tenant may install trade fixtures in the demised premises without the ...

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