New York SMSA Ltd. Partnership v 225 5th, LLC

[*1] New York SMSA Ltd. Partnership v 225 5th, LLC 2005 NY Slip Op 51194(U) Decided on July 20, 2005 Supreme Court, New York County Friedman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 20, 2005
Supreme Court, New York County

NEW YORK SMSA LIMITED PARTNERSHIP d/b/a VERIZON WIRELESS, Plaintiff,

against

225 5TH, LLC, a/k/a 225 FIFTH, LLC, et al., Defendant.



600969/05

Marcy Friedman, J.

In this landlord-tenant action, plaintiff-tenant, New York SMSA Limited Partnership ("Verizon") sues defendant-landlord, 225 5th, LLC ("225 5th") for a declaratory judgment and an injunction restraining defendant from interfering with plaintiff's rights under its lease and, in particular, its right to maintain a communication facility on the roof of the premises located at 225 Fifth Avenue in Manhattan. Plaintiff moves for a preliminary injunction. Defendant moves to cancel a notice of pendency filed by plaintiff. The motions are consolidated for disposition.

Preliminary Injunction

It is well settled that a preliminary injunction is a drastic remedy which will be granted "only where the movant shows a likelihood of success on the merits, the potential for irreparable injury if the injunction is not granted and a balance of equities in the movant's favor (Grant Co. v Srogi, 52 NY2d 496, 517; McLaughlin, Piven, Vogel, Inc. v Nolan & Co., 114 AD2d 165, 172, lv denied 67 NY2d 606)." (Chernoff Diamond & Co. v Fitzmaurice, Inc., 234 AD2d 200, 201 [1st Dept 1996].) "The movant has the burden of establishing a right to this equitable remedy." (McLaughlin, Piven, Vogel, 114 AD2d at 172.)

Here, plaintiff meets this burden. Plaintiff makes a prima facie showing of likelihood of success on the merits. It is undisputed that plaintiff is a tenant of a portion of the roof at the premises under a long-term lease that expires in 2021, and that the lease permits plaintiff to use the roof for a communication facility i.e., for maintenance of equipment such as antennas for the transmission of wireless services. By the terms of paragraph 1 of the parties' lease, 225 5th leases to Verizon 450 square feet on the roof of the premises "with a right of access thereto as designated by Lessor from time to time, * * * all as substantially shown on Exhibit 'A', attached hereto and made a part hereof." Contrary to defendant's contention (see Bitter Aff. In Opp., [*2]

¶¶ 17-18), this paragraph demises a specific portion of the roof to plaintiff, and does not give defendant the right in its sole discretion to relocate Verizon's equipment.

Plaintiff also demonstrates that it may be irreparably harmed in the absence of injunctive relief. The uncontroverted evidence shows that defendant has taken, or threatened to take, acts inconsistent with Verizon's leasehold in order to proceed with its planned conversion of the premises to residential condominiums. These acts include requests to Verizon to remove all of [its] equipment from the rooftop immediately" (Bitter letter dated Sept. 30, 2004 [Ex. F to Order to Show Cause for Preliminary Injunction]); a communication from defendant's counsel to plaintiff's counsel asserting, without any supporting detail, that Verizon's use of the premises may be in breach of the lease, and advising that Verizon's facility is "incompatible" with 225 5th's intended use of the premises for residential condominiums (Sternbach letter dated Jan. 20, 2005 [Ex. L to Order to Show Cause]); and the filing of plans for penthouse condominium units that will concededly occupy the space demised to Verizon for its facility. (See Tangel Aff. In Support of Order to Show Cause, ¶¶ 23-24; Ex. G.) Verizon also submits evidence, albeit disputed, that defendant's principal threatened to cut Verizon's power cables. (Moore Aff. In Support, ¶ 23.)

Plaintiff further makes a prima facie showing that interference with its equipment at the premises could result in loss of revenues for Verizon, and could also affect the provision of emergency wireless services to the public. Under the circumstances, the balance of equities favors injunctive relief in Verizon's favor.

The injunction will be conditioned on a minimal undertaking, given Verizon's strong showing that its lease does not afford 225 5th the right to relocate it from the demised space, as well as the fact that 225 5th has made no showing that it cannot proceed with its conversion of the premises to condominiums pending the hearing of this action. While it appears that 225 5th would prefer to construct penthouses on the roof space demised to Verizon, 225 5th acknowledges that Verizon occupies only two percent of the roof space, yet makes no showing that it cannot proceed with plans or designs that would accommodate Verizon's leasehold.

Notice of Pendency

CPLR 6501 provides in pertinent part: "A notice of pendency may be filed in any action in a court of the state * * * in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property." "As the Court of Appeals has stated, 'The usual object of filing a notice of lis pendens is to protect some right, title or interest claimed by a plaintiff in the lands of a defendant which might be lost under the recording acts in event of a transfer of the subject property by the defendant to a purchaser for value and without notice of the claim' (Braunston v Anchorage Woods, 10 NY2d 302, 305)." (Rose v Montt Assets, Inc., 250 AD2d 451 [1st Dept 1998].) The courts have long "required strict compliance with the statutory procedural requirements" for the filing of a notice of pendency. (5303 Realty Corp. v O & Y Equity Corp., 64 NY2d 313, 320 [1984].) Thus, "[t]he powerful impact that this device has on the alienability of property, when conjoined with the facility with which it may be obtained, calls for its narrow application to only those lawsuits directly affecting title to, or the possession, use or enjoyment of, real property." (5303 Realty Corp., 64 NY2d at 315-316; Pix Furniture, Inc. v Loew's Theatres & Realty Corp., 131 Misc 2d 517, 519 [Bronx County 1986], affd no opinion 129 AD2d 1018 [1987].)

On a motion to cancel, "the court is essentially limited to reviewing the pleading to [*3]ascertain whether the action falls within the scope of CPLR 6501." (5303 Realty Corp., 64 NY2d at 320.) In determining whether to cancel the notice of pendency in the instant case, the issue before the court is thus whether Verizon's complaint demands a judgment that would affect the title to, or the possession, use, or enjoyment of, real property. (See CPLR 6501; Robert Fiance Hair Design Inst. v Concourse Props. Co., 130 AD2d 564 [2d Dept 1987].)

Although not artfully drafted, the complaint pleads causes of action which seek a determination that Verizon has the right under its lease to maintain its communication facility on the roof of the property. (See, e.g., Second Cause of Action, ¶ 88 ["The Defendant is in breach of its obligations and responsibilities under the Lease by improperly and illegally denying Verizon Wireless its contractual right to access and maintain the Communication Facility at the Property."]; Third Cause of Action, ¶ 94 ["The Defendant is in breach of its obligations and responsibilities under the Lease by systematically acting to convert the roof of the Building to residential penthouse condominiums that are patently incompatible with Verizon Wireless' rights under the Lease."].)

In moving to cancel, defendant argues that the notice of pendency was not properly filed because plaintiff's claims in this action do not affect title to real property. However, as the appellate courts have recognized, "both the First and Second Departments have permitted the filing of a notice of pendency in actions involving a tenant's right to the use and possession of leased premises." (Nadeau v Tuley, 160 AD2d 1130, 1132 [3d Dept 1990], appeal dismissed 76 NY2d 846, rearg denied 76 NY2d 890; Pix Furniture, 131 Misc 2d at 519 ["Under certain circumstances the filing of a notice of pendency by a tenant is appropriate to protect his possessory rights."]. See 220 E. 56th St. Corp. v Excelsior Sav. Bank, 253 App Div 345 [1st Dept 1938][filing of notice of pendency proper where plaintiff, alleging unlawful ouster, sought restitution of real property which it had possessed as tenant]; Lafayette Forwarding Co. v Rothbart Garage Operators, Inc., 205 App Div 247 [1st Dept 1923][filing of notice of pendency proper where plaintiff-lessee sued to enjoin defendant from excluding plaintiff from possession of a portion of leased premises]; Robert Fiance Hair Design Inst. v Concourse Props. Co., 130 AD2d 564, supra [filing of notice of pendency proper where plaintiff's action sought declaratory judgment that lease was in full force and effect, and enforcement of lease provisions]; Gross v Castleton Hous. Corp., 271 App Div 980 [2d Dept 1947] [notice of pendency proper where plaintiff sued for specific performance "in his status as a potential tenant"].)

The Appellate Division of this Department has stated that a notice of pendency is unavailable even in the context of a summary proceeding to recover possession under a lease. (Rose v Montt Assets, Inc., 250 AD2d 451, supra. See Gyurek v 103 E. 10th Owners Corp., 128 Misc 2d 384 [Sup Ct, New York County 1985].) However, this case involved a notice of pendency filed by a tenant who was seeking only money damages and not possessory relief. The Court's statement is clearly dictum and, in any event, does not address the long standing authority, cited above, upholding the filing of a notice of pendency by a tenant where appropriate to protect possessory interests.

The instant action falls squarely within such authority. Verizon's claim could not more directly affect the possession of real property, as Verizon seeks declaratory, and supporting injunctive, relief that it is entitled to use the portion of the roof demised to it under its long-term lease for its communication facility. Indeed, Verizon's claim implicates title to the property, as it [*4]is undisputed that the plans for condominium units that 225 5th intends to create and market include the portion of the roof that has been demised to Verizon. The court accordingly concludes that the notice of pendency satisfies the statutory requirements imposed by CPLR 6501.

Defendant cites no authority in support of its contention that the notice should be cancelled on the independent ground that potential purchasers of the condominiums may acquire actual notice, or notice from the offering plan, of Verizon's leasehold. The court has considered defendant's remaining contentions and finds them to be without merit.

It is accordingly hereby ORDERED that plaintiff's motion for a preliminary injunction is granted to the following extent: Defendant, its officers, agents, employees and all persons acting on its behalf are hereby enjoined and restrained from 1) interfering with plaintiff's leasehold interest or rights under its lease, including but not limited to: a) its rights to use and possess the leasehold, including its right to maintain a communication facility on the demised premises; and (b) its right to free and unfettered access to the leasehold; and (c) its right to public utilities, including telephone and electric, and other essential services, pursuant to its lease; and 2) commencing any summary or other proceeding to terminate, cancel, or rescind the lease, except a proceeding based on non-payment of rent. Provided that: Defendant may move on notice for modification of this injunction to permit legal action based on an alleged violation of the lease, upon a detailed showing that such a violation may exist; and 3) the injunction set forth in paragraphs (1) and (2) above is conditioned on plaintiff's posting of an undertaking by cash or surety company bond in the amount of twenty-five thousand dollars; and it is further

ORDERED that defendant's motion to cancel the notice of pendency filed by plaintiff, dated March 17, 2005, is denied in its entirety; and it is further

ORDERED that the parties shall appear for a preliminary conference in Part 57 of this Court on August 4, 2005 at 11:30 a.m.

This constitutes the decision and order of the court.

Dated: New York, New York

July 20, 2005

________________________

MARCY FRIEDMAN, J.S.C.