G&P 418 Corp. v Meilman Mgt. & Dev., LLC

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G&P 418 Corp. v Meilman Mgt. & Dev., LLC 2005 NY Slip Op 30473(U) July 7, 2005 Supreme Court, New York County Docket Number: 600653/04 Judge: Marcy S. Friedman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: HON.MARCY S. FRIEDMAN .'t /**T i-7- Justice f INDEX NO. I MOTION DATE pJ0 1 - v - MOTION SEQ. N O . MOTION CAL. The following papers, numbered 1 to NO. were read on this m o t h to/for PAPERS NUMBERED Notice of Motion/ Order to Show Cause Answerlng Affidavits - Affidavits - Exhibits ... - Exhibits Re ply Ing Affidavit 8 Cross-Motion: U Yes Y N a Upon the foregolng papers, It is ardered that thls motion DECIDED IN ACCORbANCE WITH ACCOMPANYING DECISlON/QRb)ER. Check o ne p- 'FI NA L DI POSI10N S T Check if ap ropriate: )& 0N-FINAL DI POS I10N N S T 1 DONOTPOST 7 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - PART 57 PRESENT: Hon. Marcy S. Fricdnian, JSC G&P 418 CORP., Jndex No.: 600653/04 Action No. 1 Pliiiii t$ - agaiiist - DECISION/ORDER MEILMAN MANAGEMENT & DEVELOPMENT, LLC, X GGrP 41 8 CORP., Index No. 102375/05 Action No. 2 Plaint# - against - MEILMAN MANAGEMENT & DEVELOPMENT, LLC, Defen dmt. X In tlicse consolidated actions, plaintiff, thc tenant of a commercial premises in the Meat Market district of Manhattan, seeks a declaration that plaintiff has not violated the terms of its lcase. Plainti rfprcviously moved for Yellowstoiie injuiictions enjoining de~eiendaiit/l~uidlord from tcmiinating plaintifl s tcnancy and tolling the times to cure delaults alleged in Notices to Cure dated January 7, 2004 ( Action No. 1 Notice ) and Jaiiiiary 26, 2005 ( Action No. 2 Notice ). By decision dated March 17, 2005, the couit granted plaintifrs motion in Actioii No. 1 and [* 3] coiiditioiicd the iiijuiictioti on plaiiitiFs payment of rent and oti the posting of an undertaking in tlie amount of $50,000. Thc saiiic dccision denicd plaintiffs inotioii in Action No. 2. Plaintiff now moves to reargue and rciicw the motions deteriiiined by this decision. It is well settled that a motion for reargument is designed to aPford a party an oppoi-tunity to establish that thc court ovcrlooked or misapprehended the relevant facts, or misapplied aiiy controlling principle of law. (Foley v Roche, 68 AD2d 5 5 8 , 567 [ l Dept 19791.) A motioii forleavc to renew must ordinarily be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the court. Renewal should be denied where the party fails to offer a valid excuse for not submitting the additional facts upon the original application. (Id.at 568.) However, the court may, in its discretion, grant renewal in the interests ofjustice, upon facts which were luiown to the movant at the tiiiie tlie oiigitial iiiotioii was made. * * * [Elvcn if tlic vigorous requiremeiits Cor renewal are not met, such rclicf may be properly granted so as not to defcat substantivc fairness. Tidiiiian Constr. Corp. v City of New York, 280 AD2d 374, 376377 [ 1 Dcpt 2001][iiitei11al citations and quotation marks omitted].) Here, plaintiff seelcs renewal of the motion for a Yellowstoiie iiijuiictioii regarding tlic January 26, 2005 Notice to Cure which enumerates alleged violations of lease requirements coiiceiiiing the pemiissible use of the premises. Thcsc asscrtcd violations include: w e of tlie prcmises for playing o r live iiiusic in front of standing audienccs ; use of the preniises for dancing and as a cabarct in violation of the lease and certificate of occupancy; failure to file a valid public assembly permit; permitting tlie premises to be used as an adult establishment featuring the naked display of breasts * * * and pci-niittiiig activities iiicludinz fetish nights that Page -2- [* 4] are adult entertainment oricnted ; permitting and advertising fetish and adult entertainment nights; and operating the premises in a maimer that deviates from the iiiaimer of use and occiipaiicy set forth in the tenant s liquor license application. Plaiiitiff claims that defendant submitted peijured evidence iii opposition to the original motion. In particular, plaintiff contends that thc prcniiscs was closed on January 6, 2005, but tlial, in opposition to the original motion, deleendant subiiiitted a false affidavit from a Maria Baez, stating that she visited the premises on January 6 and saw it being used as a daiicc floor without tables. Plaintiff also contends that defeiidant submitted advertisements for fetish par-ties at tlie premises which contained photographs that appeared to have been taken at the preiiiises but were in fact taken at other locations. Further, plaintiff submits an affidavit in which she asserts that thci-c has iiever been nudity or adult entertainment at the premises, and that plaintiff ncvcr advcrtiscd nor authorized anyone to advertise fetish parties at the premises. Plaintiff also, for tlie first time, addresses a City of Ncw York, Department of Buildings ( DOB ) violation, dated FebrLiary 1, 2005, which defendant submitted in opposition to the original iiiotion, and which cites, among other violations, occupancy of the premises as a cabaret with live entertainment. Plaintiff now asserts that these alleged violations have been cured. Plaintiff fails to make any showing as to why it did not submit the evidence now proffered in reply to defendants opposition to the original motion. Rather, as noted in the dccision of the original motion, plaintiff instead relicd on thc wholly conclusory assertions in its moving papers that it was not in defiult o r its lease in any respects enumerated in tlie notice to cure. Plaintiff thus took the position that there were no violations to cure. The court accordingly held that this position, in the face oP the documentary evidence produced by dereiidant, was Page -3- [* 5] insufficient to deiiionslrate the requisite willingness to curc. While plaintiff now apparently recognizes tlic nccd to address defendant s evidence of plaiiitifps ongoing uses of the premises, the evidence that plaintiff submits is patcntly iiisufficicnt to warrant renewal of the decision denying tlie Yellowstoiie iiijuiictioii. Significantly, plaintiff does not make any showing that it is willing to cure its w e o l t h e preiiiiscs as a cabaret with live music. A cabaret is defined as [aliiy room, place or space in the city in which any musical entcrtaininent, singing, dancing or other foiin of ainusemeiit is perniitted in connection with the restaurant business or the busincss of dircctly or indirectly selling to the public rood or drink, except eating or drinking places, which provide incidcntal musical entertainment, without dancing * *. ( N Y C Admin Code § 20-359[3].) Plaintiff merely asserts, without aiiy evidentiary support, that it does not riin a cabaret, and that the DOB violation for cabaret use has been cured. (& Sardinas Aff. In Support, 1 15, 16.) Whilc plaintiff 1 represcnts that it lias now cancelled fetish parties (Sardiiias Aff, In Support, 7 12), plaintilldoes not make aiiy showing that it is willing to discontinue other events that usc the premises as a cabaret by peimitting dancing and playing of inusic before standing audiences. Instead, plaintiff argues that the court may not act as a moral arbitcr of the uses of the premises. This contention niischaracterizes the legal issue detennincd by this court s piior decision -- namely, whether plaintiff is willing to cure uses of the premises that violate or may violate the bargained-for provision in thc parties lcase setting forth use restrictions. hi both thc prior- and instant motions, plaintiff simply fails to address facts tending to show that plaintiff is using the premises as a cabaret and for other events that are iiot peniiitted by the lease. Plaintiff accordiiigly continues to fail to show that it lias tlie willingness to cure requisite to the grant of a Page -4- [* 6] Yellowstoiie iiijunction. (See American Airlines, Tnc. v Rolcx Realty Co., 165 AD2d 701 [ 1 Dcpt 19901.) Plaintiff s assertion, for the first time on its reply, that it has cured defendant s 1 objection to dancing at the preniises (Sardinas Reply Aff., 1 3) is too little too late. The coiirt further notes that the allegedly false evidence submitted by defendant in response to the prior inotion does not wainlit renewal or modification o f the court s prior decision. Thc court does not find that the advertisements were misleading. hi any cvcnt, as held above, the issue on the Yellowstone motion was not merely whether the fetish parties violatcd the lease, but whether petitioner is willing to cure use of the premises as a cabaret for events otlicr than such parties. Furtlicr, even if the Baez affidavit were false or incorrect that tlic premises was used for dancing on January 6, plaintiff, as held above, does not adequately address the use of the premises for dancing on other occasions. Leave to renew the motion regarding thc January 26, 2005 notice is therefore denied. Lcave to reargue with respect to this notice is also denied based on plaintiffs Fdilure to inalce any showing that the court misappr-chciided applicable facts or law. Plaintiff also seeks reargument of the motion coiicerning the January 7,2004 notice, to the extent that tlic dccision determining this motion conditioned the grant of a Yellowstone iiijuiiction O H plaintiffs posting of a $50,000 undertaking. Leave to reargue is denied. On the prior motion, plaintiff offered no opposition to dcfcndant s rcqucst that the undertaking be set in the amount of $50,000. Plaintiff does not offcr any explanation for its failure on the prior motion to set forth its position on this issue. Nor does plaintiff now show that the amount of tlic undertaking is not rationally rclatcd to the damages sustainable by defendant in the event of a subscqucnt determination that preliminary injunctive relief had been erroneously granted. (& Page -5- [* 7] Metropolis Seaport Assocs., L.P. v South St. Seaport Corp., 253 AD2d 663, 664 [ l s tDept 19981.) T n so holding, tlie court notes that on the prior motion, defendant deinonstratcd that it had incurred $1 6,000 in expenses in retaining a sound expert in connection with the parties' dispute over soundproofing of the preinises - a major issue in the Notice to Cure in Action No. 1 (See Supp. Aff. of Richard Meilman, sworn to 011 Feb. 1, 2005, In Opp.To Prior Motion, 7 62.) As defendant also pointed out on tlie prior motion, it remains subject to fines and pcnalties as a result of the DOB violation. It is accordingly hereby ORDERED that plaintiffs motion for leave to renew and reargue is denied in its entirety. This constitutes the decision and order of the court. Dated: New York, New York July 7 , 2005 I Page -6- .

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