GOLENBOCK E[SEMAN ASSOR BELL & PESKOE«P

Transcription

1 GOLENBOCK E[SEMAN ASSOR BELL & PESKOE«P Attorneys at Law Madison Ave., New York, NY T (212) I F (212) I DiaECr Dias No.: (2 / 2) DiRECr F.nx No.:!2 / 2J EMA/L ADDRESS: OE/SEMAN~GOL NBOCK. COM August 6, 2012 BY HAND AND ELECTRONIC FILING Hon. O. Peter Sherwood Supreme Court of the State of New York, New York County 60 Centre Street Room 615 New York, New York Re: Arkin Kaplan Rice LLP v. Kaplan, et al. (Index No /2012) Dear Justice Sherwood: We represent the Plaintiff, Arkin Kaplan Rice LLP ("AKR"), in the abovereferenced action. We write with respect to an issue that arose on Friday, August 3, and that we believe requires immediate attention from the Court. Late this past Friday afternoon, Defendants' counsel sent us a letter stating the following: (i) Defendants intend to vacate AKR's office space "shortly"; (ii) Defendants will not pay their Court-ordered share of AKR's August rent, but instead will pay some amount that they deem appropriate after they know when they will be leaving the premises; and (iii) Defendants will refuse to sign AKR checks, thereby preventing AKR from paying the amount of the August rent that Defendants are refusing to pay. A copy of the August 3 letter from Defendants' counsel is attached as Exhibit A. We believe this violates the Court's July 20 preliminary injunction order (the "Order"). We ask for a telephone conference as soon as the Court's schedule permits, for the purpose of obtaining a direction requiring Defendants to pay their share of August's rent. t As part of its Order, the Court directed that each of the two new firms occupying AKR's office space, Defendant Kaplan Rice LLP ("KR LLP") and non-party Arkin Solbakken LLP ("AS LLP"), pay a portion of AKR's post-dissolution rent obligations. AKR's rent for the month of August came due on August 1. AS LLP has paid its Court-ordered share of the rent to AKR so that AKR can pay it to the Sublandlord. Similarly, AKR's subtenants (Terrapin and TAG) have paid their rent to AKR so that AKR can pay it to the Sublandlord. Defendants, however, have failed to pay their Court-ordered portion of the rent. Defendants' failure to pay ' This issue is separate from the issues raised in the letters to the Court that are the subject of the conference scheduled for August 16. r~~rrciz~xxa

2 GOLENBOCK E[SEMAN ASSOR BELL & PESKOELLP Hon. O. Peter Sherwood August 6, 2012 Page 2 their Court-ordered portion of August rent leaves Defendants approximately $76,000 short of the amount needed to pay its August rent obligations. We believe that Defendants' actions are in violation of the Court's Order. The Court ruled, among other things, that all unpaid obligations arising after May 17, 2012 including the portion of AKR's rent not covered by AKR's existing subtenants must be paid by KR LLP and AS LLP, 9/17's from KR LLP and 8/17's from AS LLP. The August rent came due on August l; as discussed at the July 20 hearing, AKR's rent is due in advance at the beginning of the month. The August rent therefore is a post-may 17 obligation that must be paid according to the Court-ordered formula. AKR invoiced KR LLP for its Court-ordered share of that rent a few days prior to August 1. Defendants have deliberately failed to pay their share of August's rent. Defendants cannot avoid paying August's rent by claiming that they intend to vacate the premises in the near future. They were occupying the premises on August 1 and are still occupying it today. The rent for the entire month of August came due August 1. They are therefore liable for their share of the entire month's rent. Moreover, Defendants gave no notice prior to August 3 of their intention to vacate the premises at any time in the near future. To the contrary, they have. maintained all along that they would continue to occupy the premises at least through the end of September while they looked to finalize arrangements for new space for KR LLP. Now, they inform that they will "shortly" vacate -the premises. Providing that information now, several days into August, has almost certainly deprived AKR of the opportunity to find new subtenants to take over KR's space for at least a month and possibly longer. These circumstances make Defendants' effort to avoid their rent obligation even more inappropriate. At the July 20 hearing, Defendants' counsel raised with the Court the question of -rent payments upon Defendants' departure from the premises. The Court stated "I don't have to decide that today. It's in everybody's interest to lease up that space and cooperate for that purpose." (Transcript of July 20, 2012 Appearance, 60:17-19 (emphasis added). We submit that Defendants' conduct in informing AKR on August 3 that KR intends to vacate the premises "shortly"; that it will not pay any rent in the meantime no less pay its share of rent for the full month of August; and that. it will block payment of its share of rent out of the AKR account, is the opposite of "cooperating" in an effort to cover AKR's lease obligation. It is a blatant attempt to avoid the obligation the Court imposed on Defendants to pay their fair share of rent and to shift that obligation to AS LLP, which has already paid its fair share

3 GOLENBOGK E[SEMAN ASSOR BELL & PESKOE«P Hon. O. Peter Sherwood August 6, 2012 Page 3 We respectfully request that the Court enforce its Order by directing that Defendants pay their Court-ordered allocable share of AKR's August rent, and ask that the Court schedule a telephone conference at its earliest convenience to deal with this issue. Respectfully, David J. Eiseman ~~ '`~~~ Enclosure cc: Arthur J. Ciampi, Esq. (by )

4 Exhibit A

5 w I c~ ~l~ I LLC ARTHUR J. CIAMPI, ESQ ACIAMPI@CIAMPILAW.COM August 3, 2012 David J. Eiseman, Esq. Golenbock Eiseman Assor Bell & Peskoe, LLP 437 Madison Avenue New York, NY Re: Arkin Kaplan Rice LLP Dear David: It appears to us that your clients do not intend to respond to any of our inquiries or even try to work together to resolve the remaining issues in connection with the wind up of AKR. Without notice, your clients removed Ms. Pintor's access to the Signature bank accounts and the Juris timekeeping system, and changed the name on the front door to "Arkin Solbakken." At the same time, you have not responded to my letter dated July 31 concerning the payment of expenses. Will this be your clients' practice going forward? With respect to your clients' demand for the payment of Kaplan Rice's proportionate share of rent, we hereby notify you that Kaplan Rice will be vacating the premises shortly, and thus will not be required to pay use and occupancy for the full month of August. We should know by early next week the date on which the firm will be leaving, and we will at that time determine the amount actually due. In this regard, I note that, despite my express instructions in my July 31 letter, your clients appear to have deposited subtenant rent payments into the AKR account, presumably with the intent of having this account pay Ladenburg Thalmann. As I stated in my July 31 letter:...your client should not use this account for payment of rent as this would violate Justice Sherwood's order and since the funds in this account are disputed and will be subject to the forthcoming accounting proceeding.. Any payments by subtenants or by Arkin Solbakken LLP to Ladenburg Thalmann should be made to or from a separate account. AKR no longer exists, and this account does not have any obligations under the lease. Rather, Arkin Solbakken is the successor firm with the primary obligation to pay rent. Because my clients are not staying for the full month of August, any differential must be paid by Arkin Solbakken. This is what the Court ruled those using the space have to pay. The funds in the remaining "AKR" accounts FnCSirni~e: BROADWAY, SUITE 52C', NEW YORK, NY

6 are to be used solely to pay expenses through May 17 and then distributed in accordance with the rulings in the accounting proceeding. We will not require your clients to remove rent payments from Terrapin, The Arkin Group and Arkin Solbakken already deposited into the account (over our express objection), but my clients will not approve any rent payments that use any funds collected on account of Pre-May 17. Any differential must be borne by Arkin Solbakken the legal successor to AKR. Very truly yours, Arthur J. Ciampi FaCSiMi~E: BROADWAY, SuiTe 520, NEw YORK, NY