Collins v 628 W. End LLC

Collins v 628 W. End LLC 2015 NY Slip Op 03060 Decided on April 9, 2015 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 April 9, 2015
Tom, J.P., Sweeny, Renwick, Andrias, JJ.
14752 152320/13

[*1] Patricia Juliette Collins, Plaintiff-Appellant, ——

v

628 West End LLC, Defendant-Respondent.

Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for appellant.

Law Offices of Jamie Lathrop, P.C., Brooklyn (Jamie Lathrop of counsel), for respondent.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered January 30, 2014, which denied plaintiff's motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, it is declared that plaintiff is the rightful tenant of the subject apartment, and the matter is remanded for further proceedings consistent herewith.

Plaintiff established her entitlement to judgment as a matter of law based on defendant's breach of the surrender agreement which provided that she "shall have and retain a first right of refusal to lease" the subject apartment ... when it became available for rent. When the apartment became available in 2011, defendant did not offer her the apartment but instead rented the apartment to a third party. In opposition to plaintiff's motion, defendant failed to raise an issue of fact. To the contrary, after commencement of this action, defendant sent plaintiff a letter offering her a lease for the subject apartment.

Contrary to defendant's argument, its offer to lease the apartment, subsequent to the breach, could not constitute a "first right of refusal" under the terms of the surrender agreement nor was it a "cure" of its breach. Thus, it is of no moment that plaintiff did not accept the purported offer within the time frame provided for in the surrender agreement. We note that defendant's subsequent offer of the apartment to plaintiff does not render this action moot, since it did not settle the additional causes of action raised by plaintiff, including claims for attorneys' fees, renovation of the apartment and moving expenses pursuant to the surrender agreement (see Safran v Nau, 123 AD3d 460 [1st Dept 2014]).

Contrary to plaintiff's argument, CPLR 4547 is inapplicable since the letter offering plaintiff a lease for the apartment is not a settlement document (see Nineteen Eighty-Nine, LLC v Icahn, 96 AD3d 603 [1st Dept 2012]). Even if the letter and plaintiff's response were settlement documents, they would not be inadmissible since they were not offered to prove either liability or the value of the claims (see Java Enters., Inc. v Loeb, Block & Partners, LLP, 48 AD3d 383, 384 [1st Dept 2008]).

We have considered defendant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 9, 2015

DEPUTY CLERK