After closing Birds & Bubbles on the Lower East Side last month, Sarah Simmons is suing the landlord for negligence for at least $1.5 million, though Simmons says that the damages are worth far more — as much as $4 million.
Landlord 100 Forsyth LLC — part of Veracity Real Estate Management — has owned the building since January 2016, when it bought the property from Ascot Properties for $16 million, according to the Department of Finance. Birds & Bubbles signed a lease in April 2014.
Birds & Bubbles filed a suit on April 12, alleging that contractors hired by the landlord caused at least six floods since December 2016, with water streaming out of light fixtures, damaging ceilings and floors, electronics, point-of-sale systems, and more.
As a result of the flooding, there’s visible mold and elevated mold spore count in the air, rated at a condition 3 (with 4 the highest), based on an assessment from Certified Mold Inspections Inc. The recommendations to ameliorate the damages include a 21-day closure and “would cost over $50,000 for each area, estimated to be over $350,000.” The company recommended removing parts of the floors, walls, ceilings, and other materials in the main and side dining rooms as well as bathrooms.
And yet, “The leaks and flooding would have to be fixed before the remediation could even begin,” reads the filing, and the restaurant cannot operate in this condition. “If the NYC Department of Health did not close the restaurant, it would be a serious liability to store, prepare or serve food to patrons considering the serious conditions caused by the mold. Serious illness can be caused by inhalation and exposure.” The recommendations came after the restaurant closed.
In addition to flooding, one of the tenants in the building insisted on feeding pigeons at 5 p.m. every day for the spring and summer of 2016, which resulted in the restaurant not being able to use seven tables on the 40 seat patio. Simmons eventually closed part of the patio “as a result of pigeons invading the space and defecating all over the space.” The landlord “was aware of the damage being caused and intentionally refused to take action.”
100 Forsyth will likely rely on a clause in the lease that allows them to avoid liability for negligence, but Birds & Bubbles asserts that the damage — to the tenants’ property as well as the actual building itself — is the result of gross negligence of the landlord’s agents and contractors. Veracity Real Estate Management did not respond to an Eater inquiry about the lawsuit.
Prior to the timeframe in the lawsuit, the restaurant experienced a pipe burst in 2015, which required the restaurant to reinstall "a new ceiling, new floors, four new pipes, newly insulated pipes, a new HVAC compressor, two shiny heating units, a disinfected and freshly restocked bar, and a new ice machine,” which was paid for by the former property owners at Ascot Properties NYC.
Birds & Bubbles closed after multiple back and forth communications with 100 Forsyth, which included rent withheld up to the total amount in escrow as part of the security deposit. Following the latest flood, Birds & Bubbles talked to the landlords about breaking the lease and was subsequently served eviction papers.
Before closing Birds & Bubbles, Simmons and her husband and partner Aaron Hoskins worked with colleagues in the industry to help staff land jobs in other restaurants. And they are working with the insurance provider to access business interruption coverage to ensure all final paychecks are sent out as quickly as possible.