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 30498(U) March 17, 2005 Sup Ct, NY 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] / I MOTION DATE -vMOTION SEQ. NO. M The following papers, numbered 1 to MOTION CAL. NO. were read on this motion to/for PAPERS NUMBERED .. Notice of Motion/ Order to Show Cause v) - Affidavits - Exhibits ... 1 Y z 0 cn Q W Answering Affidavits - Exhibits 3 Replying Affidavits U Cross-Motion: 0 Yes W N o / ' /' Dated: Check one: INAL DISPOSITION Check if appropriate: I 1 DONOTPOST [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF N E W YORK - PART 57 PRESENT: Hoii. Marcy S. Friedman, JSC X Action No. 1 Indcx No.: 6006;53/04 - against - MEILMAN MANAGEMENT & DEVELOPMENT LLC , x x C & 1 41 8 Corp., ; Action No. 2 Index No.: 102375/05 Pla iritvj, DECISION/ORDER - against - METLMAN MANAGEMENT & DEVELOPMENT LLC, L k f C l l dun ts. X It1 these related actions for declaratory aiid injunctivc relief, plaintiff/tenanl iiiovcs for a Yellowsto ne inj itiict i o n erijoi 11 i 11 g de rend an t/l an d 1o rd from t crm i rialing p I ain ti fr s t en ancy uii commercial leasc, and lolling the tinic to cure tlic defaults alleged in Notices to Cure claled January 7, 2004 ( Action No. 1 Notice ) and January 26? 2005 ( Action No. 2 Noticc ), respective1y. der a [* 3] In order to obtain a Ycllowstoric injunction, a plaintiff must show that: ( 1) it holds a coninier-cia1lease; (2) it reccivcd from the landlord eithcr a notice ofdelault, a notice to cum, or a t h a t of leiinination o r the lease; (3) it rcqucsted iiijuiictivc relief prior to the tei-mination of the lcase; and (4) it is preparcd and maintains the ability to cure the allegcd dcfaull by any nicans short of vacating tlic premises. (Craubart-1 Mollcn Hor-owitz Ponicraiiz & Shapiro v 600 Third Ave. Assocs., 93 NY2d 508, 5 14 [1999], qiiotiiig 225 E. 36 St. Garage Corn. v 221 E. 30th Owiicrs Corp., 21 1 AD2d 420, 421 [ 1 Dept 19951. First Nail. Stores v Ycllowstone Shoppine Ctr., 21 NY2d 630 [ 19681.) The Action No. 1 Notice alleges lease defaults bascd on plainlifrs I ailure to install adcquatc soundproofing at the premises; failurc to procure insurance required by the lease; arid violations of 1-cqiiiremeiitso f paragraph 73 of the leasc, including f ailurc to use tlic prcniises as a sophisticated bar/loungc and playing of various typcs of music prohibited by tlic lease. As a threshold matter, the court rejects dercndant s contention that hctioii No. 1 was not timely ~otiimcnced.Plaintiff commcnced the action by obtaining an order to show cause befbrc the expiration of the curc period, aiid served the order to show cause within the time ordered by the court. Action No. I was adjourned repcatedly pending scttlemeiit ellorts by the partics. During the acijoui-iimcnls, plairiti ff installed soundproofing at the premises, thus evidencirig its williiigiicss to curc thc alleged soundproofing violation. While dcfendaiit disputes the suf iicicncy of the soundproohig, this dispute does not demonstrate the absence of williiigncss or ability on plaintiffs part to curc. Teniiination ofplaintiff s tenancy bascd on a dcl ault i n soil n d p rc)o fin g slio 11 d th erelb re be st aycd. 1 Page -2- [* 4] As to plaintiffs allcgcd fiii lurc l o procurc rcqitired insurance, plaintiff providcd insurancc certilicates ctiiriiig the pendency o f this action, again evidciicing its willingness to cure this violation. Whilc it is undisputcd lhal the insurance docs not comply with ccrtain lcasc rcquircimciits, including that the insurcr waivc its right o r subrogation, plainti ([raises a bona Iide issue as to impossibility of performance 01 such requirements. Under these ciicumstances, terniination oftlie lease based on the alleged insurance delhults should be stayed. As to violations ol thc usc and occupancy clausc of thc lcasc, dcfcndant initially took thc position lhal the two major thrusls of llie Action No. 1 Notice to Curc wcrc insurancc and soundprooling. (SeeMeilman Alf. hi Opp.; Stipulations dated Sept. 23, 2004 and Nov. 4, 2004.) Moreover, although dehclant also took the position that tlie lease did iiot permit the playing o f live music by rock bands, defendant acknowledges that it would no1 have objected to llie bands if the sound could have been reasonably controlled through soundproofing and if the bands were 1 suitablc for a sophisticatcd bar/lounge. (Meilnian Supp. Aff. In Opp., 1 60.) llndcr these circumslances, a stay is also appropriatc as to the use aiicl occupancy violations alleged in tlic Action No. 1 Notice lo Curc. l h c court rcachcs a difl crent result as to the Actiori No. 2 Noticc to Cure. lhis Notice alleges violalions of [he lease based 011, among olher things, use of h e premises lor the playing or live music in h n t of standing audiences without a valid public assembly pcniiit; usc of [tie preniiscs for dancing rind as a cabaret ; and permitting the premises to be iised as an adult establishmenl. Initially, the court rejects plaiiitiFs argument that the Action No. 2 Notice to Cure was served in violation of a temporary restraining order in the order to show cause, dated March 12, Page -3- [* 5] 2004, by which Action No. 1 was cornmenced. The court accordingly addresscs the rricrits ofplaintiffs motion for a Yellowstonc injunction in Action No. 2. In support of this motion, plaintiff dcnics that it has pennitled the use orthe prcmiscs for m y or the abovc purlmscs. In opposition, d e h d a n t submits considerable documentary evjdcncc that the premises has bccri used as a cabaret with livc cntcrtainmcnt (City of New York Department or Buildings violation dated Jan. 27, ZOOS), and that it has been used, as recently as Februai-y 18, 2005 and repeatedly prior lo that datc, for fetish parties. (See Meilman A 1 1: I n Opp., Exs. C, E.) Plaintiff does not submit a reply addressing h i s evidence and thus rests on the conclusory denials in its moving papcrs lhat it has violated the lease provisioiis rcgarding use o r thc prcniiscs lhal are the basis lor the Action No. 2 Nolice to Cure. PlaintifTthus in effecl lakes thc position that there are 110 violations to cure. Altei-r~alively, asserts that if it turns out lhat it this, wc will make certain that this docs not rccur. (Sardinas Aff. I n we are wrong abo~it Support, 1 11 .) This assertion, in thc facc of the documentary evidencc submittcd by defendant, 1 is patently insufficient to dcmoiistrate the requisite williiigiiess to curc. It is accordingly hereby ORDERED as follows: Plaintiffs molion in Actio11 No. 1 is granted lo the following cxtciit: Plaintiff is granted a prelirniriary iri.junction enjoining arid rcstraining dcfendanl, pending the liearing and delenuination of this action, from teiiniiiatiiig or cancclling plaintiffs lease based on the Notice to Cure dated January 7, 2004, xid tolling the curc period set forth in said notice; and it is fiirther is ORDERED tliat this iiijunctio~i conditioned 011 1) payiicnt hy plaintiff of any outstaiidiiig rent within five days aftcr scrvicc of a copy of this order with iioticc of entIy; and 2) payment by plili11tiiI of futlturc rent as and when it accnics; and 3) plainliff s posting o l au Page -4- [* 6] undertaking by cash or surety company bond in the amount of fifty thousand dollars within five days afler scrvice of a copy or this ordcr with noticc of entry; and it is lilrther ORDERED that plaintifYs niotion in Action No. 2 is denied; and it is rwther ORDERED that h e parties shall appear for preliiiiinary conkrcnces in Actions Nos. I and 2 in Part 57 o f this court on April IC), 2005 at 1 1 :30 a.m. l'his constitutes tlic decision aiid ordcr of the courl. Dated: Ncw York, Ncw York March 17, 2005 MARCY P'REDMAN,J.S.C.

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