90 Wash. Rest Assoc., LLC v JDM Wash. St., LLC

90 Wash. Rest Assoc., LLC v JDM Wash. St., LLC 2012 NY Slip Op 00240 Decided on January 17, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 17, 2012
Tom, J.P., Catterson, DeGrasse, Richter, Manzanet-Daniels, JJ.
6548 600557/10

[*1]90 Washington Rest Associates, LLC, Plaintiff-Appellant, ——

v

JDM Washington Street, LLC, Defendant-Respondent.




Warshaw Burstein Cohen Schlesinger & Kuh, LLP, New York
(Bruce H. Wiener of counsel), and Kenneth F. McCallion, New
York, for appellant.
Windels Marx Lane & Mittendorf, LLP, New York (Gregory
T. Kerr of counsel), for respondent.

Order, Supreme Court, New York County (Anil C. Singh, J.), entered June 14, 2011, which, insofar as appealed from as limited by the briefs, granted defendant's motion for summary judgment to the extent of dismissing all claims for damages relating to the loss and/or interruption of business, and denied plaintiff's cross motion for partial summary judgment on its breach of contract claim, unanimously modified, on the law, defendant's motion denied, and plaintiff's cross motion granted to the extent it sought summary judgment on its breach of contract claim that the scaffolding erected and maintained by defendant between August 2008 and August 2010 violated the terms of the parties' lease, and otherwise affirmed, with costs against defendant.

The motion court improperly granted defendant summary judgment dismissing plaintiff's claims for damages from the interruption or loss of business. Triable issues exist as to whether defendant performed any work on the premises. Furthermore, there are triable issues as to whether, if the landlord did perform work, such work was diligently prosecuted, and that the work necessitated the scaffolding.

Plaintiff was entitled to summary judgment on its claim that between August 2008 and August 2010, defendant violated the lease provision requiring that any scaffolding not obstruct the signage for plaintiff's restaurant. The record shows that during the relevant time period the [*2]scaffolding obstructed the view of the subject signage and the testimony of the building owner failed to address the specific lease requirement that scaffolding not block the signage.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 17, 2012

CLERK