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1989-02-06 SP -- ! --...' "----- - QUEENS BURY ZONING BOARD OF APPEALS ~ /919 ce:- Special Meeting: Monday, February 6, .~ at 7:30 p.m. NOTICE OF APPEAL: NUMBER 1-1989 Mark A. Lebowitz, Esq., of the firm Bartlett, Pontiff, Stewart, Rhodes & Judge, P.C., represents Saul I. Birnbaum, owner of the property in the Town of Queensbury known as The Queensbury Factory Outlet Center, Route 9, Queensbury, New York. Mr. Birnbaum hereby APPEALS THE ISSUANCE OF BUILD- ING PERMIT NUMBER 88-956 (for interior alterations) to Victory Markets, Inc., 53 Main Street, Norwich, New York. Present: Theodore Turner, Chairman Joyce Eggleston Daniel Griffin Jeffrey Kelley Susan Goetz, Secretary Michael Muller Charles O. Sicard Mary Jane F. Moeller, Stenographer Chairman Turner called the meeting to order at 7:30 p.m.. PARTICIPANTS Mark Lebowitz, Esq., Bartlett, Pontiff, Stewart, Rhodes and Judge representing Saul I. Birnbaum Paul Dusek, Town Attorney; Town of Queensbury on behalf of David Hatin, Director of Building and Code Enforcement David Hatin, Director of Building and Code Enforcement, Town of Queensbury. Peter Fitzgerald, Esq./John Richards, Esq., LaPann, Reardon, Morris, Fitzgerald & Firth representing Victory Markets, Inc. and Shop Rite. STORE CLARIFICATION Victory Markets, Inc.: (hereinafter called Victory), subsidiary is Great American Big ·V- Supermarkets, Inc.: (hereinafter called Big -V·), subsidiary is Shop Rite Supermarkets 1 "~ PRESENTATIONS Mark Lebowitz, Esq.: The purpose of the meeting is for an Appeal from the Building Inspect- or's issuance of a Building Permit to Victory for the improvement of the former Shop Rite store at the Queensbury Factory Outlet Center. The sub- stance of the Appeal is contained in Mr. Lebowitz' letter of January l8, 1989 (Exhibit A). Specifically referred to is Town Ordinance Number 30 Section 4(b) (7) requiring, among other stipulations, that an application be accompanied by an affidavit of the owner or applicant stating that the ·proposed work is authorized by the owner and that the applicant is authorized to make such application.- The particular Building Permit (Exhibit B), issued January 5, 1989, was applied for by Victory through its Agent, Andrew Mancini, who, Mr. Lebowitz feels, is the general contractor. The application cor- rectly states the property owner as Saul I. Birnbaum, however, incorrectly states that the work was authorized by Mr. Birnbaum. On January 10, 1989 Mr. Birnbaum engaged the office of Bartlett, Pontiff, et. ale (Exhibit C), for the purpose of advising the Town of Queensbury that he did not authorized the issuance of the Building Permit. Mr. Dusek issued a Stop Work Order, which has been lifted and there have been subsequent, amended Building Applications. Also of note is a certification (Exhibit D) from Community Title Agency, Inc. stating that records show the sole record owner to be Saul I. Birnbaum, who acquired title by deed from 1) Queensbury Plaza, Inc., 2) Laura S. Hogue and John C. Mannix, and 3) First National Bank of Glens Falls. The records were examined in the Warren County Clerk's Office. The major concern surrounding this issue is determining ownership of the property. Mr. Lebowitz contends that Saul I. Birnbaum is the undis- puted legal title holder to the property, and who is involved in extensive litigation with the estate of his deceased brother, Bernard P. Birnbaum. The litigation is pending in the Rochester NY Surrogate's Court and has been ongoing for a period exceeding four years, and Mr. Lebowitz believes it may continue for another four years, the dispute covers several proper- ties belonging to the brothers. The objective of the Estate with respect to Queensbury in the litiga- tion is to obtain an undivided one-half interest in common with Saul I. Birnbaum, the Estate is not an owner at the present time. The cumulative effect of the Surrogate Court Orders is to compose a constructive trust on a one-half interest in the Queensbury property, Saul Birnbaum is named as the constructive trustee. Although Saul I. Birnbaum holds legal title to the property, it is subject to an equitable interest of his brother's estate. Because of this, Mr. Birnbaum is precluded, by reason of the Court Orders, from taking certain actions with respect to the property without the consent of the Estate. 2 The existing Court Orders acknowledge Mr. Birnbaum's ownership and fur- ther acknowledge that he is the Manager of the Center and is in charge of the day-to-day responsibilities and, over the past several years, has acted in that capacity. For the past four years, Mr. Birnbaum has been landlord in all respects to all tenants, ie: collected the rent, discussed the assessment, defaulted tenants, litigated with the tenants. The Estate has not contended that it feels aggrieved by actions that Mr. Birnbaum may be taking with respect to the Center and nor does it feel that existing Court Orders are being violated. In fact, the Estate is very careful to correctly delineate the nature of its interest in the property and, at the outset when it was first contemplated that Victory may replace Shop Rite Stores in the Center, Victory solicited from the Estate its consent to this Assignment (Exhibit E). In responding to the solicitation by Victory, the Estate responded precisely and set forth the nature of the interests, however, the Estate did not sign the consent letter because it did not have the authority as owner to do so. Mr. Lebowitz noted that, during the first week of December 1988, the Great American store acknowledged the existence of substantial legal ques- tions about its right to take possession of the property. Instead of seek- ing an immediate right to possession or await outcome of proceedings initiated by the landlord, Victory went into possession of the premises, built an oversized sign, commenced alterations on the premises, stocked the store, promised people jobs, and ran a 12-page newspaper ad announcing the Grand Opening on February 7, 1989. Paul Dusek, Esq.: Mr. Dusek indicated that, because it is David Hatin's decision which is being reviewed at this meeting and that he has advised Mr. Hatin during this process, it would be a conflict of interest to counsel the Zoning Board of Appeals in its effort to make a decision on this matter. (Mr. Hatin is Director of Building and Code Enforcement). Therefore, the Board does have a right to secure outside legal Counsel. Mr. Dusek is present at this meeting as an advocate for Mr. Hatin. Mr. Dusek reviewed the sequence of events from Mr. Hatin's perspective and the Town Attorney's perspective. 12/29/88: Mr. Mancini applied for a Building Permit, which indicated that the owner of the property is the Queensbury Factory Outlet Center and that the Building Permit applicant is Victory. Mr. Mancini signed as Contract- or, which is allowed under the Town Ordinance, verifying that all Ordin- ances have been complied with and the Owner's consent has been given for the construction activity. Based on the documentation presented, Mr. Hatin issued the Building Permit. 1/10/89: Mr. Hatin received notification from Saul I. Birnbaum that 1) he (Birnbaum) was the owner of the property, 2) he did not authorize any kind of Building Permit, 3) statements made on the application were false and 3 '~ fraudulent; and 4) that work should be stopped immediately. Mr. Hatin also heard from LaPann, Reardon, et. ale and the Estate's attorneys, Woods, Oviatt, Gilman, Sturman & Clarke (Exhibit F dated 1/10/89). Mr. Oviatt advised that the Estate has a 50% equitable interest in the pro- perty, that Saul Birnbaum holds 50% of the property as constructive trustee, that the Estate knew about the Building Permit and Assignment of a Lease from Shop Rite to Victory, and the Estate consented to it. Mr. Birnbaum has been ordered to reconvey to the Estate a 50% interest in the record title. Mr. Dusek reviewed the Lease (~tué ) between Queensbury Plaza Asso- ciates and the Big -V-, which stipulated that the landlord had to give consent if there were to be any structural alterations or repair to the premises. Additionally, Counsel's office received a copy of a Court Order (~öh"file '~) indicating that Mr. Birnbaum was under the Order of Surro- gate's Court, not only as far as setting up a constructive trust for the property, but to convey the property to the Estate. The Court order effectively gives the Estate an interest in the property. Regarding the Court Order conveying the property, the Order was taken up on Appeal. The Appellate Division affirmed that portion which yielded the conveyance, but did remand the rest of the Orders back to the lower Court. However, at this point in time, Mr. Dusek is of the opinion he has to deal with the papers which are in his possession, which is a Court Order which he feels is final and constitutes the Law of the case, and that Mr. Birnbaum's Estate has an interest in the property. Another Court Order dated March 31, 1988 (Exhibit I) imposes certain requirements on Saul I. Birnbaum on what he could or could not do in this particular case. One of the restrictions is that he cannot generally take any action with respect to the Queensbury Plaza, other than day-to-day rou- tine management (Page 4 (v». After careful review, Mr. Dusek recommended to Mr. Hatin to allow the Building Permit to stand, Mr. Hatin took his advice. Reference was again made to the Town Ordinance, Number 30, Section 8, which states that -The Building Inspector may revoke a Building Permit.- Mr. Dusek advised the Board that the word shall is used when Legislative mandate states that one -must- do something; whereas, in this case the word -may- is used. 2/3/89: Richard Bartlett, Esq., indicated to Mr. Dusek that the Order was subject to Appeal. Mr. Dusek advised Mr~ Hatin to issue a Stop Work Order and requested that the zoning Board of Appeals meeting scheduled for 2/3/89 be adjourned until 2/6/89. 2/6/89: Important information was received from the office of LaPann, Reardon, et. ale 1) Big -V-, former tenant, has joined in on the appli- cation (Exhibit J), and 2) regarding the Building Permit, the Estate is again consenting to the renovation. 4 '"--- Because of the emphasis placed on the Lease Agreement and the fact that Big ·V· has joined in on the application, Mr. Dusek was of the opinion that Big ·V· has a right to request a Building Permit. To justify his opinion, Mr. Dusek again emphasized that his decision has been made on the evidence presently on hand, 1) a Lease Agreement stating that Big ·V· has certain rights, and 2) a Court Order stating that the Birnbaum Estate has certain rights. Regarding the Certificate of Occupancy, it was determined that, although Section 267 (4) of the Town Law indicates that usually all pro- ceedings are staid pending resolution by the Zoning Board of Appeals, Mr. Dusek indicated he was of the opinion that Section 267 dealt with proceed- ings and not with issuance of a Certificate of Occupancy. Therefore, Mr. Hatin was advised to issue the Certificate, presuming that the proper inspections were carried out. In summary, Counsel noted that the Zoning Board has an application from Saul I. Birnbaum requesting that the Building Permit be revoked. If the Board decides that Mr. Birnbaum is correct under Section 30 of the Town Ordinance, then the Permit will be revoked as well as the Certificate of Occupancy, the store will not open on February 7, 1989. If the Board feels that the Building Inspector has reviewed the information correctly and are in agreement with what has been presented, then the Certificate of Occupancy will remain the same and the store will open as planned. General Discussion: In answer to Mrs. Goetz, Mr. Fitzgerald affirmed that the original sign for the Great American was made oversized by the sign contractor, however, the sign has been reduced from 108 square feet to 87 square feet. Mr. Muller referred to the portion of the Lease stating that the tenant may not make any alterations to the structural elements or to the exterior of the premises without prior written consent of the landlord. Mr. Hatin responded that he has an Affidavit that there are no structural changes to the building, there are interior alterations. Structural change means changing the structural stability of the building itself. Mr. Lebowitz discussed the following. 1) Regarding the Lease Agree- ment, it has been established that there was a Lease Agreement, which was terminated by the landlord long before the Building Application was made or renovations were undertaken. There are five separate letters of term- ination. Shop Rite went out of business, they closed the door and fired the employees, which was a violation of the Agreement. It was subsequent to that that the assignment for Victory was to take place. The fact that Shop Rite has been added as a co-applicant to the Building Permit changes nothing. Shop Rite indicated it had assigned all of its rites of the Lease to Victory. 2) If there is a Lease Agreement, a review of the alterations to which 5 '"--- the landlord has consented has to be made, and a determination has to be made that the renovations are not structural and not exterior. That deter- mination cannot be made by the Building Department. There is a Case Law in the State of New York (Exhibit M) that constitutes structural altera- tions, which establishes rewiring, plumbing, lowering of sprinkler heads and dropping of the ceiling, breaking through the exterior wall for the purpose of a video drop-off box, etc. What was undertaken at this build- ing was structural and exterior, therefore, what was undertaken was in violation of what was authorized. Mr. Richards commented that, whether or not changes ar~ structural is not the issue at this meeting, the consent is the issue. The word ·struc- tural· does not appear in the Notice of Appeal. The issue of consent is the same issue which is central to two proceedings pending in Supreme Court and that is where this issue should be decided. Mr. Richards is of the opinion that there is a perversion of the zoning process to put the Town in a position of deciding judicial questions that affect the lives of 190 people. This hearing is not a proper forum for an Appeal from the Building Permit, which was issued pursuant to Ordinance No. 30 of the Town of Queensbury. Town Law 267 limits the Zoning Board's jurisdiction only to matters arising out of zoning- and planning-type Ordinances and acted and adopted pursuant to Article 16 of the Town Law, therefore, there is a substance reason and technical reason for Denying the Appeal. Mr. Lebowitz agrees as to where the decision is to be made regarding possessory right to the building, it should be decided by the Supreme Court. Friday, February 3, 1989 was an initial return date for the Sum- mary Proceeding. Under the law, a Summary Proceeding has to be scheduled, a trial held and disposition made within ten days of the initial return date, unless the litigating parties consent otherwise. If the Board wishes to defer its decision until the Court rules on the issue is satis- factory with Mr. Lebowitz, as long as the Certificate of Occupancy is not issued in the interim, that would have been the proper course initially. He feels that Victory is at fault, because it immediately began renova- tions, occupation of the store, promised jobs and stocked the store. Mr. Fitzgerald contended that, on January 5, 1989, a Building Permit was issued and Great American continued to work under the reliance of the Building Permit until Friday, February 3, 1989, which is the first time there was any indication that a Stop Work Order might be issued. The Building Permit was reviewed under the request of Saul I. Birnbaum and was carried out with time, materials and efforts in the hiring and training of employees in anticipation of opening on February 7, 1989. He emphasized that the procedures since January 5, 1989 were carried out with thought. Mr. Hatin advised Mrs. Eggleston that dropped ceilings and changes in the walls are cosmetic and not structural alterations. Mr. letters Lebowitz advised Mrs. Goetz that the Lease Agreement termination were dated December 20 and 28, 1988. Victory received a copy of 6 .'"'--" - --- the January 10th letter, which was five days after the Building Permit was issued, demanding that the permit be revoked. Also, in the first week of December, Great American knew that Saul Birnbaum contested their right to possession and that there was substantial legal dispute. Great American took a calculated risk in moving forward, which was in violation of the legalities of the situation. Mr. Dusek affirmed that there is an Order dated 3/31/87 stating that Saul I. Birnbaum is the Operating Manager, and that he has nothing else to do with the Queensbury Store. Mrs. Eggleston questioned as to whether or not leasing or subleasing the building would fall under his jurisdiction. Mr. Dusek clarified that the Lease stipulates ·day-to-day· activities and his (Dusek's) opinion is that leasing and subleasing do not fall under that category. Mr. Fitzgerald confirmed to Mrs. Goetz that the video drop-off located in the exterior wall is not in existence. Mr. Richards urged the Board to keep in mind that it is Victory's posi- tion that there is an authorization by Saul Birnbaum through the Lease, as well as the acknowledged written consent of the co-owner of the property. The position has been evaluated by the Town Attorney, a Building Permit and Certificate of Occupancy has been issued. Regarding the interpretation of Section 267.4 of the Town Law, Mr. Lebowitz disagreed with Mr. Dusek, because the case law states that no Certificate of Occupancy can be issued while the Appeal is pending, and the Estate does not have the right to give Saul Birnbaum's consent, as he is the other undivided one-half interest owner. Mr. Fitzgerald reiterated that all of the issues are before Judge Dier, who will make the determination, and requesting intricate decisions from the Zoning Board of Appeals is a burden to the Board. Messrs. Lebowitz and Fitzgerald advised Mr. Muller that they did not feel he had to abstain from discussing the issue or voting on the issue, because of his son's employment by the Great American Stores. Mr. Muller felt there are very complex issues before the Board, especially as to whether or not there is a Lease. He doubts that there is anyone on the Board who is knowledgeable on the law of co-tenancy, on the factual deter- minations regarding validity of leases, on the factual determination as to whether or not there are structural improvements. Mr. Muller is of the opinion that the issues presented at this meeting are out of the jurisdic- tion of the Zoning Board of Appeals and the members are not the best judge. Members of the Board agreed with Mr. Muller. Mrs. Goetz expressed concern about the rights of property owners. 7 -.~ "---. MOTION Verbatim Michael Muller made a motion that, on the Application presented by Mr. Birnbaum, it would be the action of this Board not to grant his Appeal, that we cannot act upon the issues that arise on this Appeal, that is, that the issues that are proposed are matters that are outside the regular course of issues that arise out of Zoning and Planning matters, and that this Board would not have jurisdiction to grant the relief that Mr. Birnbaum seeks. [Mr. Muller presented a factual explanation on the motion. The zoning Board of Appeals is being asked to make decisions as to the legality, the authenticity or the existence of a lease that we do not have sufficient jurisdiction to make decisions on, no less facts. We are asked to make decisions on the rights of co-tenants which, I think, according to Mr. Birnbaum's own attorney, has been in the Courts for at least four years and may go for another four years. If it has managed to baffle Supreme Court judges and Surrogate Court judges, it should baffle us. And, we are asked to make decisions as to whether or not there are structural improve- ments or not structural improvements, so the issues are outside of our area of expertise or outside our jurisdiction.] Seconded by Mrs. Eggleston. Passed 6 Yes (Eggleston, Griffen, Goetz, Kelley, Muller, Turner) 1 Abstain (Sicard) Chairman Turner adjourned the meeting at 8:20 p.m. Theodore Turner, Chairman Date ~ , Stenographer 8 ,-- FIL~ '",,~ RICHARD J. BARTLI:TT PAUL E. PONTI,.,. ROBERT S. STEWART ALAN R. RHODES H. WAYNE JUDaE ROBERT S. McMILLEN PHILIP C. MciNTIRE MARK A. LEBOWITZ J. LAWRENCE PALTROWITZ MALCOL'" B. O'HARA BERTRA'" J. DUBE THO"'AS A. UIASEWICZ PATRICIA E. WATKINS JOHN W. CA""RY GARY C. HOBes MARK E. CERA.ANO MONICA A. KOWALEWSKI SUS"N E. DECKER BARTLETT, PONTI"."., STEWART, RHODES Be JUDGE, P. C. ATTORNEYS AT LAW ONE WA.HINaTON STREET P. O. Box 380 GLENS FALLS, NEW YORK 12801-0380 HUDSON fALLS O,.,'ICE 167 MAIN STREET HUDSON FALLS. NEW YORK 12839 (518) 747-3224 LAKI: PLACID O,,.ICE BREWSTER PLACE 51-53 MAIN STREI:T LAKE PLACID. NEW YORK 12946 (518) 523-9772 TELEPHONE eelB' 782-2117 TELECOPIER ISlal 792-3308 January 18, 1989 RICHARD A. PE"SICO COUNSEL Mr. Ted Turner, Chairman Queensbury Zoning Board of Appeals Queensbury Town Office .Building Bay and Haviland Roads Queensbury, New York 12804 Re: Appeal of Building Permit of Victory Markets, Inc., #88-956 Dear Mr. Turner: This firm represents Saul Birnbaum, owner of the property in the Town of Queensbury known as The Queensbury Factory Outlet Center. Pursuant to section 12.010 of the Town of Queensbury zoning Ordinance and Town Law §267 we hereby appeal the issuance of Building Permit Number 88-956 to Victory Markets, Inc. On or about Tuesday, January 10, 1989 we were advised by our client that construction activity was then taking place at the former Shop Rite store in the Center. This construction activity was under- taken without the knowledge or authorization of Mr. Birnbaum. A re- view of the building permit issued on January 5, 1989 for the work reflected that it had been obtained by Andrew Mancini as agent for Victory Markets, Inc. The related application contains a fraudulent declaration that the permit was obtained with authorization from the owner. Al though the application correctly identifies the owner as Saul Birnbaum, no such authorization was ever given by him. On January 10 we advised David Hatin, Director of Building Code Enforce- ment, that the application was fraudulent. Both he and the Town At- torney, Paul Dusek, have refused to stop construction work at our cl ient 's property. During all of this time, from the date of our initial advice to the Town that this construction activity was occur- ring without the owner's consent, the construction work has proceeded at a frenzied pace. Substantial unauthorized alterations continue to be made to the premises, and work continues during ·the eveniRgs and on weekends. This has and continues to cause substantial damages to the owner. In pertinent part, Town Ordinance Number 30 Section 4(b) (7) provides: /ìG ~w.· .. / IYî 43¿" d, -M fJk'yjif'IS ()'r> d.,f~W I' I~ n C ¡.,,), - V c ~ ,£ ;I. ¡..; / (3 rr þþ I ",,--/ \ -...J Mr. Ted Turner 2 January 18, ,1989 Applications shall be made by the owner or lessee, or agent of either, or by the architect, engineer or builder employed in connection with the proposed work. Where such applica- tion is made by a person other than the owner, it shall be accompanied by an affidavit of the owner or applicant that the proposed work is authorized by the owner and that the applicant is authorized to make such application. No such affidavit was invalid. Furthermore, this work. submi tted and the application is therefore the owner, Mr. Birnbaum, will not authorize provides: The Building Inspector may revoke a building permit theretofore issued in the following instances: In pertinent part, Town Ordinance Numbe~ 30 section 8 (a) Where he finds that there has been any false statement or misrepresentation as to a material fact in the application, plans or specifications on which the building permit was based; and (b) Where he finds that the building permit was issued in error and should not have been issued in accordance with the applicable law. In pertinent part, the Town Zoning Ordinance provides in section 13.030 Misrepresentation as follows: Any permit or approval granted under this Ordinance which is based upon or is granted in reliance upon any material mis- representation, or failure to make a material fact or cir- cumstance known, by or on behalf of an applicant shall be void. This section shall not be construed to affect the remedies available to the Town under Sections 13.010 and 13.020 of this Ordinance. part: section 12.070 of the Zoning Ordinance provides in pertinent No building permit, or where applicable, certificate of oc- cupancy shall be issued for any building, structure, use or sign where said construction, addition, alteration, or use would be in violation of any of the provisions of this ordinance, or of any other Ordinance or Local Law for thE! Town of Queensbury. The application by Mancini falsely states that "such work is authorized by the owner. II Saul Birnbaum is the owner of Queensbury Factory Outlet Center and he is the sole fee title holder of record of those premises. He did not authorize the application for a building permit made by Victory Markets, Inc., and he objects strenuously to '-- ~ / ~ Mr. Ted Turner 3 January 18, 1989 the issuance of such a permit by the Town. ~ The application contained a material misstatement of fact, and the permit was issued in apparent reliance upon this misrepresentation. It is therefore void. Victory Markets, Inc. and Andrew Mancini Associates are trespassers who are occupying. and altering the premises illegally. They do not now nor have they ever had any right to take possession of these premises. They have no contractual relationship with the owner of the property. The lease of the prior tenant, Big V Supermarkets, Inc., has been terminated for a series of defaults under its lease. We understand that the Town has been in touch with attorneys for the Estate of Mr. Birnbaum's deceased brother concerning the Estate's interest in the Center. The nature and extent of that in- terest is the subject of extensive and complex ongoing litigation in Surrogate's Court, Monroe County. Such litigation has no bearing on the dispute here in issue between Saul Birnbaum, as record owner of the property, and victory Markets, Inc. and Andrew Mancini Associates, who are illegally occupying and altering the premises. This firm has been engaged on behalf of Mr. Birnbaum in the litigation with the Estate in Rochester. There exists no court order which provides that Saul Birnbaum may not act to protect his interests as owner of the premises against the conduct here occurring. If the Estate is ag- grieved by Mr. Birnbaum's actions in that regard, it is a matter for the Surrogate's Court in Monroe County to consider, not for the Town of Queensbury to become embroiled in. The Town should immediately act to revoke this fraudulently obtained building permit based upon the advice of the record owner that it was secured without his authoriza- tion, particularly in view of the Town ordinances which require this result. We request that the zoning Board of Appeals revoke said permit and order that the premises be restored to its condition prior to the issuance of this permit. Pursuant to Town Law §267 (4) all further proceedings on this matter are stayed pending the outcome of this appeal. We therefore request that a stop work order be issued to Victory Markets and its contractor Mancini. This stay also prohibits the issuance of a certificate of Occupancy for the store. We further aver that pursuant to Zoning Ordinance section 12.070 no certificate of occupancy may be issued for the premises because the issuance thereof would be in violation of Town Ordinance No. 30. Please place this on the docket for your February(š. meeting. . .. r·/.) . s~d~erelY J \_d'" )\ ,ð'vv\, lit .'-->"LNJ V ~---_._...~.. MAL:aw ~r A.' Lebowitz cc: David Hatin Paul Dusek Victory Markets, Inc. Andrew Mancini Associates Saul I. Birnbaum MAL: 100 £i#/817 ¡; ~ . " BUILDING PERMIT '"- "--" -----' TOWN OF QUEENS BURY No. bù-9S6 WARREN COUNTY, NEW YORK VÜ.:tory Ha.::J.:ot:.~ PERMISSION is hereby granted to OWN E R of property located at QUt:CllSbLlJ:.":l' FGlc"t;.o¡,·y Ou'l.:lut Center Street, Road or Ave. .Retail ~t:o.rc in the Town of Queensbury, To Construct or place a at the above location in accordance to application together with plot plans and other information hereto filed and approved and in compliance with the Town of Q4eensbury Building and Zoning Ordinance, 1. OWNER'S Address is Saul BirnbùUln c/o Queanzbu:cy l"'actory Outlet C~ntcr Queen3Dury, UO'o¡ York 12aO~1 2. CONTRACTOR or BUILDER'S Nama hndre\'l l-1ancini A:.:;:;oc. . 3. CONTRACTOR or BUILDER'S Address ,Uw.¡e " .! 4. ARCHITECT'S Name 6. ARCHITECT'S Address 6, TYPE of Construction - (Please Indicate by X) ( ) Wood Frame ( ) Masonry ( ) Steel ( ) 7. PLANS and Specifications No. Intel."ior ültf.'!:.:ation:; t';> ~O'L~~l :.àtOl:C (old ~hvV-:-Rite) él:;ï poJr 1)10. plan, :J¡.;.c.:~:..f~ç~:l.t:.~cmß, (lad appl;¡,cat;¡"c.>n. 1')" ,.,..,.'. 1'. -..., ',- i'",· :.,....." 1~';···, ,..., .,·,·",,··,...nr'·· ~". r.·.."~.".. ~.... \".~ 8. Proposed Use p.1:0V idud -. of / -. ~\ll .:tuu iil)provCù before is~uc C O.~l~o Dw.u;¡¡':cr J to bt: placùcl in ~pprop..: i~"l:i: ~nclO:$urü!:i8 "Q,,,,,··ni 1 ~"-"".."" 50.0ù $ 540.00 PERMIT FEE PAID - THIS PERMIT EXPIRES July 1. . 19~ (If e longer period Is required en epplication for en extension must be made to the Building and Zoning Inspector of the town of Oueensbury before the expiration dete.) ., :{I'" Dated at the Town of ~eensbury this ·~·;i 30 'tÌl Day of Doc CLilia r 19~ SIGNED BY ..;".-. : for the Town of Queensbury Building and Zoning Inspector ~.., . ~.... ,. '.. .... £i HI IS/ T ,(3 I BUILDING AND CODES UJ:J'MTtff:t-rr \ Y imd 1M VI L,\ND ROADS RD 1 Dox 9a ()UEENSDURY,NEI", YO/lK 1280.1 Tel. (518) 792-58J2 Ext ,204 I .. *.... ............................".. A PERtHT "lUST llQ Oß1'AINf:U lŒFORE BEGINNING CONSTRUCTION. NO INSPl!CTIåNS . 1'.'1 LL nE HADI! UNTI L APPLI CANT liAS RI!CI!IVI!D A VALID nUl LDINC PI!RMIT. All applicnble spaces on tllis npplicatJon must be complctcd and the ~irDature of the applicant must appear on the reverse side of this sheet. ;'I'hc :w~e: :/ t~i: ~r:p:r:y~' W * :II :II W :II :II * if :II w " "" :II :II :II C;;'¿;' èk* * :II "" 1';"£(. 'P.o. Address a " TJ::L. ;I'roperty location J>IAP NO. /0 3/_LJ--L- II.:.s there been any !òpIit ot' this propc:rty since October 1, 1900? /, yes 110 '1( yes, Planning ßo~rd Review is necessary. ~UßDIVISION NAME, IP APPLrCAnL¡~ _ 'I'he per~on re!òponsibla for £upervision of wor} Jii.,-o~ I11AKKIi77¿, c IJ. I~¡'NI:: Á /? /... J'. O. ADPIt .'('5 llama oi buildurfrÑ~RIl'W ~ 1fJ('~CIN/ /fS5ðC . : I~':'III.:! of Plumbar l.ddress 'Nama oC Mason Aûdrc,¡¡s Othor rloors sq it. (not cellar ~r b~s~lIIuntl, TOTAL FLOOR AREA sq ft. ~i~~ ur nc:w ~tructur~ ft X it 1"u~ld:a t ion-pior /:òl.1I../c '¡,¡wl/l)~t'ti~l/ rull (ciTcIu 0116) No>. of !:torieø (h¡,¡u¡t:.bl~ ~l).:LCc) I~ight (~r~d~ to ridqu) ft. I t r~~iûuntiõ¡1, no. of f.lllliliL.:::i tlo. of roolllu (~xcludinoJ b:.th:¡) 110. of Ul:drOOlllfl NO. of ~throolll~ I'rill¡,;¡ry huatilllJ ::Y~¡;"'III 'l'Yl)'" u(: Cual tlo. of fir&::L)l~cu:: tu lJ.:: i/l;:tall.;;d \Üll ¡,¡ wu¡J :õ\:OV~ t.u ill~\:..lluû~ L:",ntr¡,¡l Air cOIIL1i~iunl.IICJ'! lIulLDINC !;TYLE1 PRIW\RY ~TRUCTURE ~ .\TuRf Of rr.OrO~I!D w:m.....: _COIl:itructiotl of U II<!W bui1ditlIJ _^~ion to :1 bui.lJillq ~turaLion to U building (110 Ch;lIllJu to ~xcurio¡' (Iilllanfòion:¡) _c¡c.lu: l' work I';!>7'CriUL:) : 7# T/íI2CA<-' vlf.r~ ~uo~£ AH~A OV PItOPOSC~ STRUCTURe l:>t ¡"loor sq it:. 2nd Floor sq it. JUllch Iui::...d ranch ~)l.i.\: l",v~l ':':'jJu Cod ColQn.i...l ( COOt~1II1NL·...ry LeI.' c..bin Han:Ü,," Ol.l!, 1.. x Old :>tyl~ uUII<,j..low COc;.~¡'¡IN OChUL· ~'" '¡'own lIou:so CInC.~ OO~ PLJ::A~£ . . . . . . . . . ~ . . . w . ~ . I:: !:·I' I HA'I'': D H A R" F.·I· V A 1. U I': O~' ':Otl~''(UC'I'IëJj¡- ,- ~ ------------------ IIUILOHIG AND Z(1NINli J'I:(~IIT :f~s~ ðO C;CjcJ, tV I/í/'ßCI p~ No.ðF-1S'& Lo'r NO. a:s rcgards nuilding Code!ò iu: I-Boo'" :<6z... 07/1 76...4'" 7a7ö 'rCL. NO. 'l'e 1 {ç.ô 7 Tel 'l'ul .. ZONltle IN¡:OIUIA'1'lON (Oificl.: u':¡c onl!J) .. ZONING D~SICNATION OF PROPERT~ ~ PERMITTED PRINCIPAL______PERHITTED ACCESSORY .. I .. REVIEW REQUIRED - PLANNING n01\RD_ ZONINC DOAnD · SI'I'E PLAN REVIEW U APJ"ROVED_DATE .. .. VARIANCE ß .. R<!III-1rks: APPROVED______ DATE .. . .. COI'IIII.I::'l·~, l¡....O;'\A·l'LON IU;I,JU lItCD U¡,:u..M. .. ::a~,u of llrOl)ut'ty .. a::xi:,¡t.i.II(J ÞuLlJl.llo:! (:.;) :;i::.u 1.'1: )( I'¡; )( rt. I't. .. .. I::xi:.õtillt,J builüilllJ (:;) U~", .. .. 1''&:01)0:';';'' bui!tlinIJ, di:;c¡,¡nl:,; i 1'0111 LIl:.:I1JU¡' ty .1 in,; .... i' .. Front yùrd rt R~~r y¡,¡td it .. Sid~ y~rd~ rt ~nd I.'t It It 00 c"rn~t', ~ul:b~.::1c .1'rolll £idu ucr.':C:t fl: It ocCUrm¡,;VlNfOr,w..T!Q\I .. It PRIHAnY IJUILDIUC - . _000 f"'lIily dWQllil\Cj It -'l'WO t~ß.i.ly "w\l11i.n',/ .. _HuItil:Ü~ Jw.::llinCj I NUlllbor of units It ':"-l>orll\i.&n(:lIt occupaucv .. -,!'run::iunl: ()'::CU11~tlC:t ..·_lJu£inc~u . _In''Uf;¡;r iill It _Otho;:r It If ..40.1il:ioll, wl'IOot will u:;.:: bu'/ It It ACC£SSOnv UUI~DIHC- .. lJûtach~d tJa.riIQc:lono ciJ,e/ twO carl có&r .. -AtCiJ,Chuå IJó&rulJu/olh! cAel twO c~r/ ' ca,' .. _l'riV" to: :Sto.raIjO Þ(lilLlinlJ .. _Oth~r .. 1t1f,'O""IATTOtl ON nUTI.DTNC RPr.CU'rCATTONS, ON RI::VERSI:: !:1DP. OF 'rIlTS £11££'1', 'l'O Or. COKPL£'!'CDI ",.lÍLDING PERMIT APPLICATION CONTINUED - :/ BUILDING SPECIFICATIONS: ,------- '",- "-,.- ," Type of construction, wood frame, fire safe,etc. Will any second-hand or ungraded lumber be used? If so, for what? Foundation wall material Thickness Depth of foundation below grade (to bottom of footing) Will there be a cellar? Heated or unheated? Floor sq. footage Will there be a basemen~ Will any portion be used as living space? (If so, what portion? ~ft. - - Type of use? Type of roof - sloped/flat/shed/other Materia: of roof Size, wood studs "X .. spacing . "o.c. length ft. Joists (floor beams) lst:-iÏÕor ..x--- .. spacing -';;;:-c. span ft. Joists (floor beams) 2nd. floor -"X-II spacing-"o.c. span-ft. Overlays(ceiling beams) "X ---¡¡ spacing "o.~an ft.- Roof rafters "X ---¡¡-;¡pacing o.c. ~ . ft. - Roof trusses (p;ë:;ngineered) spac~ "o.c. sp¿m- ft. Exterior wall finish ~f what mat~? Interior wall finish If a garage is to be attached, describe materials to be used for FIRE SEPARATION: sq ft Is there to be an opening between garage door, enclosure, and self-closing device Will a flue-lined chimney be installed? Depth of chimney foundation below grade Depth of fireplace hearth ft. in. Water supply - Municipal or priva~well SEP1'IC SYS1~M Distance from ANY private well(includ~ng adjoining properties ft. (A separate application is necëS;ary for any repair or new installation of septic system) . and dwallin.¡? be provided'} Height ft. If so will a Fire-rated above roof ft. DECLARATION To the best of my knowledge and belief the statements contained in this application, together with the plans and specifications submitted, are a true and complete statement of all proposed work to be done on the described premises and that all provisions of the BUILDING CODE; THE ZONING ORDINANCE, and all other laws pertaining to the proposed work shall be compIiúd with, whether specified or not, and that such work is authorize~h~ owner~/ " . Signature ~ I~~ ~. Owner, ownel"s agent, Ill'chitect, contl'actor * * * * * * * * * * * * * * * * * * * * * * * * * * * ~ * * * * * * * * * * * * * * * * * * SPECIAL CONDITIONS OF THE PERMIT: ;/ By_______________________________________ ''"'- - / .--- QUEENSBURY FACTORY OUTLET CENTER 919 Third Avenue New York, Néw York 10022 January 10, 1989 Mr. David Ha tin Director of Building & Codes Queensbury Town Office Building Ba y & Haviland Roads Queenabury, New York U tsU4 HAND DELIVÉRED Dea r Mr. Ha tin: I 8m the owner of Queensbury Factory Outle t Center (Tax Map ~;lO.3"1-l) in the Towp of Queensbury. I have just learned that on December 29, 1988 an application for a building permit was made to your office by Victory Markets, Inc. for alterations to certain premises at the Center. Pursuant to the application your office issued a building permit on January 5, 1989. , The permit application contained an affirmative declaration that the contemplated work had been authori~ed by the owner. In fact, this 1s not the case. The application was false, fraudulent and perjurious. I have not authorized any work to be done at the premises. . Further, the applicant, Victory M1.rkets, Inc., has no legal interes t in the premises, a8 a tenant or otherwise. Accordingly, I insist that a stop work order immediately issue and that tbl building permit pre- viously granted be rescinded. /. S:ltncere11.! /' '1/ '... - ..' / '. \'\JJ/ ~ SaÙl I. B"irnbaum cc: Big "V" Supermarkets, Inc. Victory Markets, inc. Andrew R. Mancini Associates, Inc. Bartlett, Pontiff, stewart, Rhodes & Judge, P.C. Zissu, Gumbinger, Stolzar & Wasserman Ce~tral Trust Company #'JrIN/ï ~ ~\ //I~ -~~.'t', _;;-£~~ ~~...... Community Title Agency, Inc. Agent for First American Title Insurance Company of New York ! Washington Street-Po O. Box 980-Glens Falls, New York U80! (518) 798-4859 -..- '-- ---- February 2, 1989 COMMUNITY TITLE AGENCY, INC. hereby c~rt1fiea that we have examined the records in the Warren County Clerk's Office with regard to property known as "The Queensbury Factory Outlet Center". We find the sole record owner to be Saul Birnbaum, who acqu~red title by deed from 1) Queensbury Plaza, Inc. dated 2/28/77 and recorded 12/22/77 in Liber 610 cp 939, 2) Laura S. Hogue and John C. Mannix, as Executors of the Last Will and Testament of John W. Miller, deceased, dated 12/28/77 and recorded 12/29/77 in Liber 610 cp 1069, 3) First National Bank oft Glens Falls dated 7/2/1979 and recorded 8/1/1979 in Liber 625 cp 383. COMMUNITY TITLE AGENCY,INC. .~ Bárbara G.( K·r'o m Vice presi&'.e£t Pi jl-I/ð t T ì> '- - '- QUEENSBURY PLAZA ASSOCIATES SUITE 200 POWERS BUILDING ROCHESTER, NEW YORK 14614 -~ November 30, 1988 Victory Markets, Inc. 54 East Main Street Norwich, New York 13815 Attention: Edwin F. Oberle, Esq. Vice President Re: Shop Rite, Key #202 Shop Rite Plaza Upper Glens Street Glens Falls, New York 12801 Dear Mr. Oberle: We understand that Big V Supermarkets, Inc. intends to assign its interest in the above-noted Lease to your corporation. We further understand that you are relying upon the contents of this letter in order to consummate the assignment. We hereby certify to you as of the date hereof the following: 1. We have entered into a Lease with Big V Supermarkets, Inc. dated December 19, 1977, and the Lease is unmodified, except for Amendment of Lease dated March 9, 1979, and in full force and effect. 2. The Lease is in good standing and no defaults exist thereunder by either party. 3. The Lease and amendments described in Paragraph 1 above are the only agreements that exist with respect to the Tenant, the Landlord and the occupied premises. 4. The Landlord has no offsets, causes of action, counterclaims or other matters which may be interposed in an action against the Tenant for payment of rent or any other amounts due under the Lease. 5. The Tenant has paid $0.00 as and for a security deposit under the Lease, and except for the current month, no money has been paid under the Lease as and for advance rent. ---- E i-H/ß/ T e -" --- -- Victory Markets, Inc. November 30, 1988 Page 2 6. The term of the Lease commenced on March 27, 1979. The term ends on March 26, 2009. There are no renewal options. 7. The fixed monthly rent is $9,801.50. It has been paid through November 30, 1988. 8.· The signatory to this letter has full and complete authority to do so on behalf of the Landlord. Very truly yours, . QUEENS BURY PLAZA ASSOCIATES By , Partner ~~- e - --"~ Irving Bank Corporation Central Trust Central Trllsl Company Trusl Division 44 Exchange Slrcel Rochester, NY 14692 7165464500 December 1, 1988 Victory Markets, Inc. 54 East Main Street Norwich, New York 13815 Attention: Edwin F. Oberle, Esq. Re: Shop Rite, Key #202 Shop Rite Plaza Upper Glens Street Glens Falls, New York 12801 Dear Mr. Oberle: Central Trust Company is a Co-Administrator of the Estate of Bernard P. Birnbaum, which has an equitable interest in the property known as Queensbury Factory Outlet Center, Glens Falls, New York. Its equitable interest is derived from a Court Judgment declaring that Saul I. Birnbaum, the record owner, holds 50% of the property as constructive trustee for the Estate. The Estate has yet to acquire legal title to its 50% interest. Central Trust Company has no objection to the __assignment referred to in your November 30, 1988 letter attached hereto; conditioned upon your assuming responsibility for the performance of the lease, and it has no knowledge that the statements set forth in the letter are incorrect or untrue in any way, except Paragraph Number "8" is not true. We have made no investigation into the matters set forth in your letter of November 30, 1988 and Saul Birnbaum, the record owner, is the only person whom we know would have positive information about such matters. CENTRAL TRUST COMPANY By: C. John Matteson Vice President and Trust Officer laj cc: Richard J. Bartlett, Esq. Mr. Saul I. Birnbaum Prime Real Estate Co. ¡;;< #-/.,1117 ê' · ::..--- r' , \ '\foods, Oviatt, Gilulall) Stttr.n1an &. Clarlr..e _1 il-::rn(!J'~ tM":' H :v:~~··t: ~"""r' r. rJ.~. . ~,,,' .' ("-:..I'. Þ! jeh. ~ C,l....· ...,.,,~ JI ý~..... HIon~ · J4t:U¡~d ,. t.....! N~.."" . ~""';_I" I:fIrrÞ j,d W :"""'c':' I\H.... ~ __w, )toll"... "t..... ÚI.r¡ r ""...n...~.. . [ IIIJ"ft rill'" ~... 0 l'JlGt lu5~ ø 1-'-~ (¡,'-" . J-- .. WLrll,.,..,., Rù;J. t. ~..¿" 1-'" W I)' ",,-. lI<~ 'r;. O't._. ), ..t I......'" So... R.ri.....,.,. ,... \",. 11ð04 i7ló' 464'~PO Jðnuery 10, 1969 Hr. Devid Hðtin 8ui1ding In~pe~lor To~n of Queensbury BAY ðt Hðvilind Queensbury. New York 12804 ~.. om... 4-~ 1-., c.....- It.:....s ~ X\"J (~r n..... I""", 1l."'I\. '""f\d. ,~ r.l'~ , 401: )(-8' h.... Re: QueensLury Plezo ~din.E Permi t T$.$\H'd t 0 'Vj,(~túry t-:9rket:. De.!\r Mr, H6tin: f~' . \ - -.-/ I",,, J:. :"'~~ ç'~' t~ I. ~...t. . , "'~J. :~~,.II· tlr~.....! ' UP.'''~! .: ':'.!".d.". T}.t..... '"~ "",:; :I.;t.\ :. f}.J:'r· t ftt:.:" ~. '"-'·...l.·I. tl...f~"·. ,...!.~ A ~., ..... "",.. ( """ ~'t'h"l\ ~; -i't,..d' kli) A. ~. """: l. !' f.-r.uJ " AN...,~ ......·.~u~ ........AI~... (;'~, 5 rl"..ti ~'I';~ r"lotd~ J t. _.-,..,.:;.-1' " .Iv",., ^ )I.t.,,,,.. t'\ ~f"f"'i r, ':'ua.t,....JI 1_ £ 1M'.h ~Gr".......... ~"T~ '*: ..............1 .. n ",,' f'. ..~ Ix Nt< ¡...~ . It·''''''''''t.~'' 116 '«>4')'~ This will confirm our tel~~hone conv~:~~rj01¡ of toJ~j concerning the i~·su8nc€· of a bui lcHng permit to \':i.ct01')' Hltrkf!i.~ covering remodeling in Queeo6bury ?lðz~. w~ repr~sent the Est~te of Bernard P. Birnb8u~~ which hes a 50% equitðbltt i"ter~gt in Que~nsbury P1ß%ß resulting rro~ 8 Court Dt:cree that $¿nÜ 'fHrnbÐullI ¡ pr.f'!iÐ"tly th~ hûl·_~er (If t'~~::erd title to the prop~rty, hold~ SOX of the vroptrty ~s constructive truBte~ for the EstÞte. Soul has b~en ordered by the Sur~og8~u'S Court for Monroe County to reconv~y [0 th~ Est~te ø ~O% intere!t in the re~ord title. Saul Birnb~um waf su&rended ~! co-a~ecutor of the Estate on September 26. 1983 by urder or the SurrogÐte by r6ß~on of his ~i8conduct con~ieting of, among other thi~&~~ his miS6pprQPl'i!'Jtion üf th~ E!t.t'àte ~ tJ 50~ in~ ~!·6f.¡~ :in the Qt.I~t:11Gbllr'"'" property_ Jsnice 6irnb6U~t thq t~qt~tor·. widow, wðS ø!QO ,usp~nded. Th€ C,;urt '.:'f, the s:tm~ dM~e Bpp(d,nt(::f.t C~t"jt\~l/.l Tt'u~t Comptu)y. /.4 Ex(;lt8i1ge ~;t.reC:i!t., Hüdl~~lt\€:£', Nf.!·; 'Ú~rh 14(:}..{\ ~ .!'o~ . temporary cO-ðd~iniøtr6tor end CQ-trustee of tht E~t~te ~"d ~13o '" ..,pú J.... n &- [:"f J.... " !,... ~ T. ~'-l Fo'''~ ¿ t# () {'j ~~.,~~, ~I" ~,' ~~!,¡:.. 'fJ ''';{4 ,'; "',., ,', " t-¡ ,..:r ~- .t> .' Ur .t.._ _ .. _t~... _..~ _.... _}I~.. t -·z ~ _ .....'.¡ .. ". ..... ~. 1., .\.... ....; ',,".... ',",- ."..r<' 1 t New Y-:.)rk 14618, ~s o;he (Jth(!Y" co·"e(j~:¡;!,ït::tt·tìi:(;·f' ::¡,~; f.:.:."··tï"lI~I..,~~~. CentI'~l '!"T'lH,t COIf¡CM'Y end Bra I rl~':.jr.1 ".n'~ ßt:n:. ~,.::ti"~~ ~'3 C"':;J., fidutiðrieß'of th~ Eltnte. .~ ¡;;-XH 113 / 'T F r ~,Mr. David Hðtin ,. January 10. 1989 ,Page 2 The [sta rÇ-, ,u,; ~ö"'(èrtllnl i,·fth ~ pt"(I~·'I?..t... t C. C'r::;'4~ f~ t ~:.1 t ÎJ . thl! ð!:!iigfw.enc C>."!:\.~ð V' !ì:14H1Sti:.\,:,V,:.t:tvry M/H-h~t:¡ /HId ur:.de r! t Q rid s ' t Ì\atN ~'è t (.q' Y p1.a fir. ;~'J>'ß pt- lid t hr'(;'·-:·~ qt.\f¡ f"t er,; (. r iJ ulillion d(,11h.ra¡r':;tenovbting<l!Ir,d.;re~~tÓél:LH~ th~ r,Tt~c.e-. T·,C': Ectst.e has no (,'\~·je.:t;it..,n8to t.ht!'·,isfU~Ji(~trûf (1. building p~ndt, which ¡ urlde r S:;'4"~Y~HI' i"8UP,od,~·tl,Yi\7'tc)'""> Mð r};r"l ~ Ii f.. pprox i /!16 t.~ 1;, one wee}, Ø¡O apQ'·~i,,,þ~~hl.;~n~~r,,,t";}U1~,~~u do fl"t: ~ lll'!rtlJ t.o d i 8 t urh. .¡,;,,¡',~E~!':~;¡.~·' ~:"':;}"'<¡;!:7'i)l~2 .!..,.,,!."...,,'..... .:' '-, ,:.;, :t~~~<'.'c :-.".: .,' .', )"', :'" . ' . If'Cht,"'theú'} :i S áTlyl':'c}¡.1nge in t.he ~t~t~J!I t.)f the building permit.þt;9.tH:1It.J 'I' issued, . I vöuld· 6p~I1":\':d I;\tc it. :i f yo'..! ,*ould ðdvise me by telf:ph"neiml';\ediðl.:.ely on ðrïj' :1~ch dlÐnge taking plð.ce .'.,'>';:·'··'c "," .'. .. : , '''''.';''::'.',:..'' <,,,:~,:.... '., I> . ThL\J:I(. ''''",¿;:''" ~ y(.'\uõ":t¡ , & C LAR 1< F. PDOjr/aj cc: -,- .~-----' ,.- ORDERED, ADJUDGED AND DECREED, that Saul I. Birnbaum provide the Co-Administrators of the Estate detailed financial statements showing all receipts and disbursements of the project within one week after the end of each month. Dated: /l;MtI !> I, 1987 Rochester, New York ENTERED: . Y/þj.ú~ ,;:: (' /' /J-t't!., TJ / ARNOLD F. CIACCIO Surrogate Court Judge ',. t;~¿ 11p..,d "!> I If tf 1 J . ;1 .1 " .! .¡ d ,I -5- r<Ý.II'DIT 1/ "----- '"' . and things related or pertaining to Queensbury Plaza for purposes of a full audit for the period February 13, 1976, to the present, to be performed by a certified public accountant or firm of certified public accountants to be retained by the corporate Co-Adminis~rator and said access to be for a reasonable period of time and all appropriate courtesies and full cooperation shall be given to said accountants by Saul I. Birnbaum, his agents and employees; and it is· further ORDERED, ADJUDGED AND DECREED, that Saul I. Birnbaum give a full and complete accounting of the Queensbury Plaza project from February 13, 1976, to the present within 6Ø days from the date of completion of the audit; and it is further, ORDERED ADJUDGED AND DECREED, tha t ¡l/¡~;K L. (... 1. . LJI¿¿/ AM r Esq. is hereby designated to act as Referee to place the Estate in the position it would have been had the misappropriation of the Estate's interest in Queensbury Plaza by Saul I. Birnbaum not occurred, all in accordance with the Decision and Order of the Appellate Division, Fourth Department, dated November IØ, 1986; and it is further ORDERED, ADJUDGED AND DECREED, that pending completion of the accounting proceeding and reconveyance of the Estate's interest in Queensbury Plaza, Saul I. Birnbaum, his agents, employees and representatives, be enjoined and restrained from taking any of the following actions without the express written consent of Co-Administrators, c.t.a. and Co-Trustees of the Estate of Bernard P. Birnbaum, which consent shall not .1 ,¡ t ¡ , f -3- EjjllßIT ~ --.-. ~. unreasonably be withheld: ..- ( i ) Any action to dispose of or encumber the Fifty pe-rcent (SØ%) interest of the Estate in Queensbury Plaza and one-half of all other interests in Queensbury Plaza acquired by Saul from the date of Bernard's death to the present; . ,ff . (11)" Any actIon to expand or physically alter the property; (iii)/ Entering into any lease or "other contracts on behalf of the property; (iv) ,Borrowing money in the name of the property; (v) q.ènerally taking any action with _respect to Queensbury Plaza other than day-to-day routine management; (vi) Making any payments from assets of the project t%r for the benefit of himself or his wife, Victoria Birnbaum; and it is further ORDERED ADJUDGED AND DECREED, that all revenues of the Queensbury Plaza project of every kind and nature shall be deposited into an account ¡Jew 'It> It- K wi th the JIJV \< D~ in the names of the Co- Administrators of the Estate of Bernard P. Birnbaum and Saul I. Birnbaum, with all withdrawals requiring the co-signature of Central Trust Company, as Co-Administrator of the Estate of , Bernard P. Birnbaum and Saul I. Birnbaum; and it is further .' :1 :1 i ¡ :1 ¡ !I If !I -4- I>:~ -:r:.'... ~ "--- the Surrogaté Court ,,< , d' > STATE OP<NEW YORK,", SURROGATE' S'~~COURT'~, .-"" "--".: "',:_,-"-' -.', - ,-,1'" .,,' , '. ':;~i/ j -, ,.' MONROE 'y,:,. . ,?,,- ,:<f",'" ";,,.;' '¡' ~ ~~ >- ¡, In the,:~atter;9~f~,t,l)~,,~PP,~f,~~~~i9,n ILENE L. FLAUM and'~ANICE?'S~~:-BIRNBAUM, Indi vidua11Y',and:'as;~;Cq~E:IJ;ecutrix- and Co-Trustee.~~pf,~the,\E$tatEf};of: B~RNARD P. . . '", !it", ,'-' ,¡-;;::~~¿,~":: - __,' ~:.',:" . -' I#' ' ',.!,!;. '( BIRNBAUM¡~Deceased,wand0ILENEEL."FLAUM and CE~T~AL¡TRUSTf.ç:O~P¡~N¥ ;fa~ Temporary Co-Admlnlstrators, c'.'t~ a<:and 'Trustees ' of the Estat,e~of,;, BER ~ $<~BIRNBAUM,' Dèceased, ." ';1'-"" ,.;".".. ': ";' , File No. 1976-484 c.Queensbury) -'. ORDER AND DECREE ,··;"''--".'.+-:'-f." ' . ',' '/:;~d¡:P.I¡ 8fT,; 'Í .,'~'d·,:. ''''''''''~'''~~'':I'--__'''' ,:'?;' .' ,'r~:"_~'f1-~\i',~:::,:'" ,< . J '" ,,----,. The Estate of Bernard P. Bi.rnbaum, by its Co- Admini~~rators, c.t.a. and Trustees, Ilene L. Flaum and Central Trust Company, having moved this Court by Order to Show Cause dated December 22, 1986, for an order directing an audit of the books and records of ~ueensbury Plaza for the period February 13, 1976, to the present; for an accounting by Saul I. Birnbaum of the Queensbury Plaza property for said period; for a schedule for determination of said accounting; and for certain injunctive relief; NOW, on reading, and filing the affirmation and reply affirmation of James M. Hartman, Esq., dated respectively, December 22, 1986, and February 13, 1987, all in support of said motion and the affirmation of Richard H. Dolan, Esq., dated January 19, 1987, in opposition thereto and after hearing Harris, Beach, Wilcox, Rubin and Levey by James M. Hartman, Esq., of Counsel, and Woods, Oviatt, Gilman, Sturman and Clarke by Percival Oviatt, Esq., of counsel, in support Qf the motionj and, Bartlett, Pont iff, Stewar t, Rhodes & Judge by Ri chard J. Bartlett, Esq., of Counsel, Schlam, Stone & Dolan, and Suozzi, English & Klein, P.C. by Richard H. Dolan, Esq., of Counsel, in opposition .thereto and due deliberatiori having been had thereon, NOW, on motion of all attorneys in support of said motion, it is ORDERED, ADJUDGED AND DECREED, that Saul I. Birnbaum on a date mutually to be agreed upon, give access to " the Co- Administrators of the Estate, to all books, records, documents -2- ---,,,.-,-,"_.'~ -"--- BIG "V" SUPERMARKETS. INC. SECOND RIDER TO APPLICATION FOR BUILDING PERMIT #88-956 RIDER DATE: February 6, 1989 PROPERTY: Queensbury Factory Outlet Center THIS SECOND RIDER supplements and amends application for building and zoning permit dated 12/29/88 (Permit #88-956) and Rider dated February 6, 1989 as follows: OWNER AUTHORIZATION: Big "V" Supermarkets, Inc. hereby joins in the application for building and zoning permit dated December 29, 1988 (Permit #88-956) as co-applicant. Its authorization for the work is set forth in the lease attached as Schedule A. LAPANN, REARDON, MORRIS, FITZGERALD & FIRTH, P.C., Agent for Big "V" Supermarkets, Inc. By: sl / pç'[ {/Æ- j). F; íz (~f1(;1I.f} E)tfl-¡II-J 7: Jd ''-. - '--..-- . .---- APPLICATION FOR CERTIFICATE OF OCCUPANCY TO: David Hatin Director of Building and Code Enforcement Town of Queensbury Bay at Haviland Road Queensbury, New York 12804-9725 APPLICANTS: VICTORY MARKETS, INC. 54 East Main Street Norwich, New York 13815 and BIG "V" SUPERMARKETS, INC. 176 NOrth Main street Florida, New York 10921 as co-applicants APPLICATION DATE: February 6, 1989 Pursuant to Town of Queensbury Ordinance #30, section 11(d), VICTORY MARKETS, INC. and BIG "V" SUPERMARKETS, INC. as co-applicants, hereby apply for a certificate of Occupancy for the former Shop-Rite Store at Queensbury Factory Outlet Center. Work at the store was authorized by Building Permit #88-956. LAPANN, REARDON, MORRIS, FITZGERALD, & FIRTH, P.C., Agent for VICTORY MARKETS, INC., Co-applicant By: 5./ P11~~~ P. (J1¿ (~{'(¡-11..J) I LAP ANN , REARDON, MORRIS, FITZGERALD, & FIRTH, P.C., Agent for BIG "V" SUPERMARKETS, INC., Co-applicant By: .~/ f1 í {It.. ]) , f¡ 1 Z {.., :("!.;1L tJ 12"" I/- t d-vr "< '~-~ ---'" AFFIDAVIT STATE OF NEW YORK ) ss. : COUNTY OF WARREN ) I, EDWIN F. OBERLE, being duly sworn, depose and say as follows: 1. I am the Vice President of Real Estate and Corporate Secretary of Victory Market, Inc., Norwich, New York. 2. I inspected the Great American premise at Queensbury Plaza on February 3, 1989. It was noted that a 2 x 2 foot opening had been placed in the exterior wall of the entrance door for video tape drop box. 3. The box was immediately removed and the exterior wall restored to its original condition. Restoration was completed on February 3, 1989. e:~~T:(f)Uu EDWIN F. OBERLE Sworn to before me this ~day of February, 1989. ~i). Notary Public - ¡.:; ý/f/ß/7 L ,.....-. -.-..--.----... 46 142 NEW ~ORK SUPPLEMENT, 2d SERIES NOLAN" P. J., an~ MacCRATE, SCHMIDT and UGHETTA, ]J., concur. MURPHY, J., dissents and votes to reverse the order and to deny the motion, with the following memorandum: . The defendant entereçl into a bond, executed by a contractor and itself, to be bound unto the board of education, ~Ielville, Towns of Huntington and Babylon, Suffolk County, as owner, for the benefit of claimants' under a contract between the contractor and owner. It is provided in the bond, as a condition, that no suit in a State court shall be commenced thereunder by any claimant other than in and for the county in which the project is situated. That county in this instance is Suffolk County. This action on the bond by claimants has been com- menced in Nassau County. The bond is not one required by statute. The remedy afforded by this bond, which is in addition to remcùies available to plaintiffs as a matter of right, can be invol.;ed by these third- party beneficiaries only in accordance with its terms. Dunning v. Leav- itt, 85 N.Y. 30, 35. If the provision as to place of commencemcnt of action is illegal and cannot be complied with, then the bond affords no remedy to plaintiffs. (Restatement, Contracts, § 140.) The plaintiffs cannot excise its provisions to suit themselves. It was suflicient to al- lege, as a separate defense, the foregoing condition precedent anù the failure to comply therewith in commencing this action. 286 App.Div. 244 MARGOLD RESIDENOE OORP., Plaintiff-Respondent, v. Rose YOUNGER, Defendant-Appellant (two cases). Supreme Court, Appellate Division, First Department. June 21, 1955. . Action by tenant for ~atory judgment that under provi:;iol1 . of lease reqUiring tenant tomak~ repair~,it.was permissible for tenant to .,instalt'ríë}ÿ:"eleëtric -·oÚtleti::¡.ánd.;w¡rJ~g,rf.:move.traps and install new,. ¡'trap$and to.,fire"retardt:,¥nl1s;"o.í;pren1is'c·s :'without landlord's con~ent. The Supreme Court, Special Term, New York County, Samucll\L Gold, J., entered judgment in favor of tenant and entered order denying lanù- lord's motion to set aside decision. Landlord appealed. The Supreme Court, Appellate Division, held that where lease expressly prohibitcll the ma~i:1g of any alterations in premises' without prior written conselìf of '"' landlor! structu J 1. Land , demise under electri{ fire-ref structt 2. Lan' increa rosell rates, pay :t make, :\h Broo! :ornc )i., - .. lieb, . Be BIX, I pj t f [1 expr Ises seca "ISlt to I, :I\e :\rc~ ;U'C U::'Cl C"CI ~'úo1 1 dcc mal i;'#tIlr~ 1 :r .~ , JJ., y the and 15 of :1t of It is shall r the Ice is com- "itute. ¡edies .bird- :'eav- nt of :Is no ntiffs to al- - d the ',. "'" ;~ .. v' . ,. ~, ,. '.' " r", ,- t. ,.1, :..¡ I;;;' . ~~. (~. ... -.. ¡Vo 'J:' "'~. . ~. H~ .....!. . . "Islon .' lntto .. I new r: '. nsent. ,- j"': Gold, '",' land- ,.;.. .~i )reme ,. ..",' :u the ., .... . of .' ..' ;l1t MARGOLD RESIDENCE CORP. T. YOUNGER 41 Cite al 142 N.r.B.2d 46 landlord,..Çhangeª.sought tobe~ade'by tenant were not repairs, but were structural changes in building,· and requiredpèmllsslOn of landlord. Judgment affirmed as modified; appeal" dismissed. 1. Landlord and Tenant C=152(~) Where lease expressly prohibited making of any alterations in demised premises without prior consent of landlord, tenant could not under provisions of lease requiring tenant to make repairs, install new electrical outlets and wiring, remove traps and install new traps, and fire-retard wedls without landlord's consent, as such work would be structural changes in building, and were not repairs. 2. Landlord and Tenant 4=»156 . 'Where lease provided that tenant would do nothing that would increase rate of fire insurance upon demised premises, anù changes pro- posed to be made in building by tenant would increase fire insurance rates, tenant could not avoid such requirement in lease by offering to pay any increase in fire insurance causeù by changes she proposed to make. ~Iurray Rafsky, New York City, of counsel (Malcolm A. Cohen, Brooklyn, with him on the brief, Smith & Rafsky, New York City, at- t~rneys), for defendant-appellant. Nathan H. Elman, New York City, of counsel (Klein, \Vikler & Gott- lieb, New York City, attorneys), for plaintiff-respondent. Before CALLAHAN, J. P., and BREITEL, BASTO\V and RA- BIN, JJ. PER CURIAM; " [1] The lease between defendant landlord and plaintiff's predecessor ~xprcssly prohibited the making nf an)" 3.lteratießE ;n the demisedprem- i~~s wlth9ut the prior written consent of the landlord. Plaintiff, in its ,:ccond C:lUse of action, sou.ltht a judgment dec1ãring that under-a pro- ,'i$ion of the ~e req1.)irin~ the tenant to make repairs, it was pérmissible . :1) (1). install new electrical.outlets and wirin ; remove trap'S in .:i:~ prel1l1SeS ~nd install new traps: ,and (3) fire-retard w~l1s and the :lrcabl:l~ectric ranges without the landlord's consent. The premises ;.r~ \I:1cd as a rooming house and there is evidence that the occupants ::.-cd hot platcs in their rooms for cooking purposes. Each floor, how- cyer. haù a community kitchen. and the roomers were supposed to do all \'.)nking therein. The plaintiff now proposes to .install in each room a refrigerator with dl'Ctric coils on top for cooking purposes. To.. enable the plaintiff to makc this conversion, ~tjsnecessary.not only to install ~.~~iring and .' , 48 142 NEW YORK SUPPLEMENT, 2d SERIES 1 ~. .. , outlets, and new traps and to fire-retard the walls, but also to install. ~ipes t~ree .in8tes in d~eter going through the floor on each level. [2] We cannot a ree with the conclusion of the trial court that these are -' repairs. tV are strttl"tur;¡l chan{es in the UI_ mg. J:' o~er, the lease l!rovides that the tenant \vill not do anything that will increase the rate of fire insùr'änce' upon the buiIding.-1.t may be gathered from the. record that these changes will so increase the rate. The pïaintif£ has attempted to skirt this requirement by conéeding that it will be liable for and will pay any increase in fire insurance premiums caused by the installation of the combined refrigerators and electric sto\"es. The lease between the parties, however, may not be so rewritten, by judicial decree. The judgment appealed from should be modified so as to eliminate any reli~f to plaintiff pursuant to its second cause of action of the com- plaint and, as so modified, the judgment is affirmed, without costs to. either part)'. The defendant did not seek in her answer any judgment declaring her rights in the mattcr and therciore the second cause of action in the complaint is dismissed. Judgment unanimously modified in accordance with the opinion herein and, as so modified, affirmed without costs. Settle order on notice. Appeal unanimously dismissed. Order filed. . . , Amelia ROMANO, Judgment Creditor, v. Ge ge: GIARRAKOPOLUS, Judgment Debtor City Court of City of Nc~ York, Queens May 4, 1055. Proceeding in the matter of supp! entary proceedings by judg."· ment creditor against judgment debto for appointment of a receiver. The judgment debtor made a motio o vacate and set aside the appoint- ment of "the receiver. The Cit ourt, Hockert, J., held that where jud:~ment creditor secured jud cnt in, :Municipal Court against judg- ment debtor for $265.70, a judgment debtor appealed to Appellate Term without filing an a eal bond, and judgment creditor instituted . supplcmentary proceedi gs in City Court and obtained appointment of . a recei\'er, ¿md ther ter Appellate Term reversed judgment and dis- missed complaint, Ity Court could not :{rant judl~ment debtor's motion ." .. E t fI/!§ 'rrn 'ok ~ . . ...·....·M...... ._. 980 157 NEW YORK SUPPLEMENT, 2d SERIES 2 N.Y.2d 7?3' 1 2 N.Y.2d 773 MARGOLD RESIDENOE OORPORATION, Appellant, v. Rose YOUNGER, Respondent. Court of Appeals of New York. Nov. 15, 1956. Appeal from Supreme Court, Appellate Division, First Department, 286 App.Div. 244, 142 N.Y.S.2d 46. Tenant brought action against landlord for declaratory judgment that under provision of lease requiring tenant to m'ake repairs, it was permis- sible for tenant to install new electric outlct~ and wiring, remove traps 'and install new traps, and fire-retard walls of premises without landlord's consent. The Supreme Court, Special Term, N ew York County, Samuel M. Gold, J., entered judgment in favor of the tenant and entered an order ùenying the landlord's motion to set asiùe the decision, and the landlord appealed. The Appellate Division modified and affirmed the judgmcnt and held that where lease expressly prohibited the making of any alterations in premises, without prior written consent of the landlord, changes sought to be made by tenant were not repairs, but were structu~al changes in the building and required permission of landlord. The tenant appealed to the Court of Appeals, and a motion was made for an order of substitution. Motion for an order of substitution granted without prejudice to or in- terference with any lien which the attorneys, for whom substitution is being made, have upon the papers of the client in this or any other cause and upon the cause of action or the proceeds thereof, see Matter of Lydig's Will, 262 N.Y. 408, 187 N.E. 298. 2 2 N.Y.2d 773 PEOPLE, Respondent, v. Nicholas WEI Appeal from Supreme Court, A ellate Division, Fourth Department, 2 AD.2d 806, 153 N.Y.S.2d 92 . Defendant was convicted sodomy in the second degree and òf carnal abuse. The ì\Ionroe COUl Court, Daniel J. O'l\Iara, J., denied defend' ant's motion for a new rial and dcnied motion to sc\'er indictments and for separate trial of . ems of the indictment, and the defendant ~ppealcd. . . . ... 34 162 NEW YORK SUPPLEMENT, 2d SE:R.IES 2 N.Y.2d 937 1 2 N.Y.2d 937 THOMAS MORE FOUNDATION, Inc., Respondent, et al., Defendants, and Montuoro Contracti . Simon R. BREGMAN Corp., Appellant. Court of Appeals or New ork. March 8, 1957 Appeal from Municipal Court, City [Xew York, Borough of Man- hattan. The Municipal Court, City of Tew York, Dorough of Manhattan, Thomas C. Chimera, J., render ü judgment on a verdict in fayor of plaintiff at a Trial Term. One of the defendants a ealed to the. Court of Appeals, and motion was made for a certifica that a constitutional question was the only question involved on th appeal. The Court of App Is, 2 N.Y.2d 855, 160 N.Y.S.2d 7, denied motion for a certificate th a constitutional question under Section 588, subd. 4, of the Civil Pr ctice Act was the only question involved on the appeal. Motion was ade in the Court of Appeals to dismiss the appeal. Motion t dismiss appeal granted and appeal dismissed, with. costs and ten d lars costs of motion, upon the ground that no substantial con- stitutio I question is presented. 2 2 N.Y.2d 937 MARGOLD RESIDENCE CORP., Appellant, v. Rose YOUNGER, Respondent. " Court of Appeals of New York. April 4, 1957. Appeal from Supreme Court, Appellate Dh'ision, First Department, 286 App.Div. 244, 142 N.Y.S.2d 46. Tenant brought action agáinst landlord for declaratory judgment that under provision of lease requiring tenant to make repairs, it was permis- sible for tenant to install new electric outlets and wiring, remO\'e traps and install new traps, and fire-retard walls of premises without lanùlord's consent. The Supreme Court, Special Term, New York County, Samuel M. Gold, J., entered judgment in favor of the tenant anù entcred an order denying the landlord's 1!10tion to set aside the decision, and the landlord appealed. The Appellate Division modified and affirmed the judgment and held that where lease expressly prohibited the making of any alterations in ì í I , t;¡"'/t ~¡(¡¡I T 111? ES 2 N.Y.2d 937 'Ion R. BREGMAN \ppellant. :orough of l\-Ian- I of :Manhattan, diet in favor of eals, and motion ·')n was the only 7, denied motion 'ction 588, subd. :d on the appeal. the appeal. ssed, with costs substantial con- JER, Respondent. :'st Department, . judgment that . it was pcrmis- ~, rcmO\°c traps :hout landlord's ty, Samuel M. Itcrcd an Qrder 'ld the landlord :ment and held .. alterations in '. ~ ,0 ...~ . :.. ,0' . > ;.f; ~ '....r.-- .:~l ';~ '* ..,.., . f·' <~ :.. \ì;: ~;. 1>;.1. .~~;. ~!~ ",1:\' 0',' r , ":'" 2 N.Y.2d 939 MEMORANDUM DECISIONS 35 Cite.. 162 N.Y.S.2d premises, without prior written consent of the landlord, changes sou.~ht to be made by tenant were not repairs, but v..·ere structural changes in the building and required permission of landlord. The tenant appealed to the Court of Appeals, and a motion was madc for an order of substitution. The Court of Appeals, 2 N. Y.2d 773, 157 N. Y.S.2d 980, granted mo- tion for order of substitution without prejudice to or interfercnce with any lien which the attorneys, for whom substitution was being madc, had on the papers of the client. The tenant contended in the Court of Appeals that thcre was not a ~cintilla of evidcnce in the record, nor was there any le~ål support, to slJstain new findings made by the Appellate Division that rcpairs wcre Hructural alterations and that repairs caused an incrcase in insurance rates, and that finding that repairs caused an increase in insurance ratcs was unsupported by any testimony. Klein, Wikler & Gottlicb, New York City (Nathan H. Elman, ::\ew York City, of counsel), for plaintiff-appellant. Shapiro & Schlissel, New York City (Abraham L. Shapiro, Xcw York City, of counsel), for defendant-respondent. Judgment affir!!!S.9a..1Y.ith.. costs. All concur. 2 N.Y.2d 939 Carl IMPERIAL, Appellant, v. CENTRAL CONCRETE, Court of Appeals of New York. April 4, 1951. ;\ppeal from Supreme Court, Appellate Division, See 1 .\.D.2d 671, 146 N.Y.S.2d 307. .\clion was brought for damages for dermatit' allegedly contracted i¡~· plaintiff from coming into contact with wet oncrete, which defend- :.:-.t had sold and delivered to plaintiff's em oyer, on ground that, be- ':.::,~ oÍ negligcnce of defendant, the wet oncrete contained a harmful ..:I"¡;mcc. .\iI1l1~ment of the Supreme Cour , George A. Arkwright, J., di5miss- ..: :::~ complaint was cntcred in e office of the County Clerk of Kings , '::::y. and the plaintiff appe. d. .;.::~ .\ppcllate Division firmcd the judgment and held that C\'en if . '¡:;¡:ifi prO\"l~d that his ermatitis was caused by lime or othcr substance ..,. ~";I~rly prcsent it concrete delivercd by defendant, plaintiff would . : Lc ....Iltitlcd to eco\'crv in absence of showing that dcfendant had .- " p. ~ .. ~ .\ " :! ~ J ,;