FILED: ONTARIO COUNTY CLERK 11/16/2020 04:52 PM
`NYSCEF DOC. NO. 24
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`INDEX NO. 127226-2020
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`RECEIVED NYSCEF: 11/16/2020
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`202011170037
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`Index # : 127226-2020
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`SUPREME COURT
`COUNTY OF ONTARIO STATE OF NEW YORK
`
`ROUTE 96 PROPERTIES, LLC.,
`Plaintiff,
`
`vs.
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`ADVENTURES IN MOVEMENT AND
`SENSATION, INC., and
`MARK KLYCZEK,
`
`Defendants.
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`Index # 127226-2020
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`AFFIDAVIT IN OPPOSITION
`TO
`MOTION FOR SUMMARY JUDGMENT
`BY PLAINTIFF
`
`STATE OF NEW YORK)
`
`COUNTY OF ONTARIO) ss.:
`
`Edward C. Kenyon, being duly sworn, deposes and says:
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`1.
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`I am an attorney duly licensed to practice law in the State of New York.
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`2.
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`I am the attorney for the Defendant Adventures in Movement and Sensation, Inc. and
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`Defendant Mark Klyczek, in this matter. As such I am fully familiar with the facts,
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`circumstances, and statements made herein.
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`NYSCEF DOC. NO. 24
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`INDEX NO. 127226-2020
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`RECEIVED NYSCEF: 11/16/2020
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`202011170037
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`Index # : 127226-2020
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`SUPREME COURT
`COUNTY OF ONTARIO STATE OF NEW YORK
`
`ROUTE 96 PROPERTIES, LLC.,
`Plaintiff,
`
`vs.
`
`ADVENTURES IN MOVEMENT AND
`SENSATION, INC., and
`MARK KLYCZEK,
`
`Defendants.
`
`Index # 127226-2020
`
`AFFIDAVIT IN OPPOSITION
`TO
`MOTION FOR SUMMARY JUDGMENT
`BY PLAINTIFF
`
`STATE OF NEW YORK)
`
`COUNTY OF ONTARIO) ss.:
`
`Edward C. Kenyon, being duly sworn, deposes and says:
`
`1.
`
`I am an attorney duly licensed to practice law in the State of New York.
`
`2.
`
`I am the attorney for the Defendant Adventures in Movement and Sensation, Inc. and
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`Defendant Mark Klyczek, in this matter. As such I am fully familiar with the facts,
`
`circumstances, and statements made herein.
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`1 of 6
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`202011170037
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`FILED: ONTARIO COUNTY CLERK 11/16/2020 04:52 PM
`NYSCEF DOC. NO. 24
`
`INDEX NO. 127226-2020
`Index #: 127226-2020
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`RECEIVED NYSCEF: 11/16/2020
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`3. Defendant Adventures in Movement and Sensation, Inc. is a New York for profit
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`corporation.
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`4. There is no officer, director or shareholder of the corporation currently residing or
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`conducting business anywhere within the State of New York.
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`5. Defendant Mark Klyczek is a resident of the Commonwealth of Virginia.
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`6. Defendant Mark Klyczek does not reside in the State of New York, and is not present in
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`the State of New York.
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`7. This Affidavit is made in opposition to the Motion for Summary Judgment made by the
`
`Plaintiff.
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`8.
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`It is respectfully submitted that there are triable issues of fact remaining in this matter
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`which are relevant and determinative of the alleged misconduct of the Defendants, and
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`that this matter is therefore not subject to Summary Judgment.
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`9. That the submissions of the parties are to be looked upon in the light most favorable to
`
`the non-moving party.
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`10. Defendants submitted an Answer in this matter.
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`202011170037
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`FILED: ONTARIO COUNTY CLERK 11/16/2020 04:52 PM
`NYSCEF DOC. NO. 24
`
`INDEX NO. 127226-2020
`Index #: 127226-2020
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`RECEIVED NYSCEF: 11/16/2020
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`11. As a part of their Answer, Defendants have contested, and continue to contest, the
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`jurisdiction of this Court over them.
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`12. It is alleged by the Defendants that the Plaintiff has failed to adequately serve the
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`Summons and Complaint in this matter upon both of the Defendants herein.
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`13. It is further alleged by Defendant Mark Klyczek that at no time has he been personally
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`served with any of the pleadings in this matter.
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`14. Upon information and belief, no determination has been made regarding the sufficiency
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`of service in this matter. Therefore, this Court does not have jurisdiction over the
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`Defendants herein.
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`15. Lacking jurisdiction over the Defendants, or in the alternative, over either of the two
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`Defendants, makes Summary Judgment an inappropriate remedy at this time for the
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`Plaintiff.
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`16. It is respectfully submitted that there are several issues of fact involving the actions of the
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`Defendants which directly relate to the provisions of the Lease Agreement upon which
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`the Plaintiff bases this action.
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`202011170037
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`FILED: ONTARIO COUNTY CLERK 11/16/2020 04:52 PM
`NYSCEF DOC. NO. 24
`
`INDEX NO. 127226-2020
`Index #: 127226-2020
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`RECEIVED NYSCEF: 11/16/2020
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`17. At issue are behaviors and actions of the Tenant and of the Guarantor that are directly
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`related to the potential liability of both the Tenant and the Guarantor pursuant to the
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`terms of the Lease Agreement.
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`18. Those issues of fact, relevant to the alleged culpability of the Defendants include:
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`a. Originally, in the early stages of the lease, the impact that actions and behaviors
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`of other tenants and their customers had upon the business of the Defendant.
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`b. Those actions of other tenants, and the actions of the Landlord in response to
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`knowledge thereof directly relate to the ability of the Tenant to comply with the
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`provisions of the Lease Agreement.
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`c. The actions taken by Defendant Adventures in Movement and Sensation, Inc.,
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`“AIMS”, when it became apparent that the business may have been facing the
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`potential of financial difficulties.
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`d. The voluminous and exhaustive actions taken by AIMS as the potential for
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`financial difficulties became actual financial difficulties.
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`e. These actions included individual efforts made by the Defendants themselves as
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`well as repeated attempted efforts to secure the involvement of the Landlord in
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`202011170037
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`FILED: ONTARIO COUNTY CLERK 11/16/2020 04:52 PM
`NYSCEF DOC. NO. 24
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`INDEX NO. 127226-2020
`Index #: 127226-2020
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`RECEIVED NYSCEF: 11/16/2020
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`efforts to mitigate any potential financial hardship on both the Defendants and
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`upon the Plaintiff.
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`f. These actions involved efforts, that it is respectfully submitted, went above and
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`beyond the required action of a tenant in order to make every effort to remain in
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`compliance with the provisions of the Lease Agreement.
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`g.
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`In spite of the efforts made by the Defendants, there was little or no reciprocation
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`of those efforts by the Landlord.
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`h. The Defendants submit that upon the knowledge of the Landlord of the efforts
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`being made by the Defendants in order to prevent a default, and or to mitigate
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`potential damages in the event of a possible default, the Landlord had a
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`responsibility to work with the Defendants.
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`i. The Defendants believe, that with a greater level of cooperation from the
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`Landlord, the likelihood of a potential default pursuant to the Lease Agreement
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`would have been significantly reduced.
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`j Even at the time that the Tenant vacated the premises, Tenant alleges that the
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`Landlord failed to meaningfully cooperate with the Tenant in the surrender of the
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`premises, a final inspection of the premises, and the surrender of the keys to the
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`premises.
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`202011170037
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`FILED: ONTARIO COUNTY CLERK 11/16/2020 04:52 PM
`NYSCEF DOC. NO. 24
`
`INDEX NO. 127226-2020
`Index #: 127226-2020
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`RECEIVED NYSCEF: 11/16/2020
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`19. It is the position of the Defendants that in the event of a default of the provisions of the
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`Lease Agreement by the Tenant, the Landlord bears a burden to further mitigate its
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`damages.
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`20. It is appropriate that the actions of the P1aintiff, subsequent to the alleged default by
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`Tenant, be presented to a trier of fact for a determination as to the impact that such
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`actions had upon the culpability or liability of the Defendants.
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`21. The Defendants allege that the remedy of Summary Judgment unjustly prevents the
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`Defendants from presenting the particulars of the above described facts, actions and
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`behaviors of all parties.
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`22. Based upon the information presented herein, alleging that there are, in fact significant
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`and relevant triable issues of fact present and unresolved herein, it is respectfully
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`requested that the Court deny the application for Summary Judgment.
`
`Edward C. Kenyon
`
`Sworn to before me this
`16th da
`r, 2020
`
`Notary Public, State ot Now York
`No. 01WR6354815
`Qualified In Wayne County
`My Commission Expires February 21,.2.0e1i
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