NFS Leasing Inc., a company that leased an inflatable dome to an indoor tennis facility in Mount Vernon, claims that the city cost it more than $1 million when it deflated the bubble in the dead of night.
NFS Leasing said the city had agreed to “simultaneously provide” it with a copy of any default notices issued to Kela Tennis Inc., the company that leased the bubble and rented city property at Memorial Field. The city sent notices to Kela Tennis, the company claims, but did not notify NFS Leasing.
“Around midnight on June 1, 2018, without notice or warning to NFS,” the leasing company states in a petition filed Nov. 20 in Westchester Supreme Court, “the city forcibly gained entry to the indoor tennis facility operated by Kela Tennis at Memorial Field and vandalized the bubble, causing it to rapidly deflate and causing severe and permanent damages to NFS”™ property, effectively destroying it as well as Kela Tennis”™ business.”
Mayor Richard Thomas did not immediately respond to a request for comment emailed to his press office, corporate counsel and outside attorney.
NFS wants to sue the city for illegal destruction of property, trespass and interference with its contracts with Kela. But first, it is asking the court to extend a deadline.
A municipality must be given a written notice of claim within 90 days of an incident, before filing a lawsuit for damages.
NFS, based in Beverly, Massachusetts, was unaware of the 90-day deadline, Ashley S. Whyman, vice president and general counsel, said in an affidavit. The company submitted a written notice of claim on Sept. 4, a few days after the 90-day cutoff.
But that should not matter, according to the NFS”™ petition filed by attorney Mona D. Shapiro of Mount Kisco.
She noted that the mayor held a press conference the day the bubble was deflated and discussed what the city had done.
Kela sued the city for $27 million a week after the incident, and the mayor and other city officials have acknowledged under oath in that case that NFS owns the bubble, the city destroyed it and Kela was put out of business.
Whyman also called and emailed the city”™s outside counsel, Douglas J. Martino, on July 24, to discuss the matter.
Thus, the city and key officials were “fully familiar with all of the pertinent facts” from the beginning, NFS argues, “and therefore will not be prejudiced if NFS is permitted to file its claim late.”
The bubble debacle goes back to 2015, when the city licensed exclusive rights to Kela to operate a tennis facility, indoor and outdoor, for 15 years at Memorial Field.
Kela was required to supply the equipment, including a removable inflatable structure ”“ the bubble ”“ and the city agreed to build a clubhouse, restrooms and infrastructure.
On Dec. 31, 2015, on his last day as mayor, Ernest Davis signed a consent and waiver agreement with Kela and NFS. The city acknowledged NFS as owner of the bubble and promised to immediately notify the company if a default notice was ever sent to Kela.
The city sent Kela a notice of default on Feb. 3 and a notice of cancellation on April 30. If Kela remained in possession of the property on June 1, the cancellation notice said, the city would enter the property, “by force if necessary,” and dispossess Kela.
NFS claims it was never notified of the default or cancellation.
Kela, in its lawsuit, attributes the city”™s actions to Mayor Thomas”™ ambition to restore Memorial Field. City officials had made repeated demands that Kela vacate the tennis courts, citing plans to demolish a nearby grandstand and a need to clean up contaminated soil. The city also said Kela owed $265,000 in back rent.
Kela alleges that the city never built the clubhouse and restrooms and that officials had said rent payments could be withheld.
Kela Simunyola, president of Kela Tennis, described in an affidavit what happened on June 1.
Around midnight, employees of Figueroa & Son Contracting Co. “broke the locks of the blower unit and turned off the blower, pried open the bay door attached to the tennis bubble with an axe and crowbar, and broke into the electrical room to shut off power to the facility. They then entered into the tennis bubble and opened up all the emergency doors, causing the bubble to rapidly collapse.”
About 70 anchor nuts and other parts, needed for re-inflating the bubble, were removed.
Since then, Simunyola claims, the bubble has been torn and ripped, and mold and mildew have formed on both sides.
NFS claims $1,083,872 in damages: $612,863 for the bubble and $471,009 in lost lease payments.
“The court should exercise its discretion in favor of NFS,” the petition states, “and permit it to file its claim.”
