102 Elmont Realty Corp. v Berikal, Inc.

[*1] 102 Elmont Realty Corp. v Berikal, Inc. 2006 NY Slip Op 50113(U) [10 Misc 3d 1078(A)] Decided on February 1, 2006 Nassau District Court Fairgrieve, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 1, 2006
Nassau District Court

102 Elmont Realty Corp., Petitioner(s)

against

Berikal, Inc., Respondent(s)



SP 681/05

Scott Fairgrieve, J.

FACTS

Petitioner 102 Elmont Realty Corp., commenced this holdover proceeding against respondent Berikal, Inc., to recover the premises located at 653 Hempstead Turnpike, Elmont, New York, being used as a gasoline service station.

The parties eventually settled this proceeding by a stipulation of settlement dated June 6, 2005, which states: IT IS HEREBY STIPULATED AND AGREED, by and between the respective parties hereto that this matter is settled upon the following terms and conditions:1.The respondent consents to the jurisdiction of the court.2.The respondent is to install four new Wayne three product gasoline pumps at the subject premises located at 653 Hempstead Turnpike, Elmont, New York together with a Wayne computer system for said pumps. The respondent shall also construct a canopy at the aforesaid premises, the design of which must be acceptable to the petitioner. The cost of the aforesaid items shall not be less than Seventy Thousand and 00/100 ($70,000.00) Dollars. Construction shall be complete no later than November 23, 2005.[*2]3.The respondent shall pay all fines, penalties and interest imposed by the Department of Environmental Conservation or any other governmental body imposed due to or arising out of the conduct of any gasoline business at aforesaid premises. Said fines will be paid by respondent whether imposed against respondent, petitioner or a principal or officer of petitioner. Payment shall be made when demanded by the Department of Environmental Conservation or other governmental body. Petitioner shall give to the respondent notice of Department of Environmental Conservation proceedings against the petitioner, petitioner's principals or officers involving 653 Hempstead Turnpike, Elmont, New York and will allow the respondent to participate in said Department of Environmental Conservation proceedings, subject to the condition that the Department of Environmental Conservation allows the respondent to participate in such proceedings.4.That a fax copy of this stipulation may be used as if it were an original.5.That this stipulation may be so ordered by the court without notice to either party.6.That in the event that the respondent fails to comply with any of terms of this stipulation the petitioner will give to the respondent a notice of default by first class mail, addressed to the respondent at 653 Hempstead Turnpike, Elmont, New York. Said notice will be deemed given when mailed. In the event that the respondent fails to cure any such default within ten days of the date of mailing of the notice of default the respondent may enter a judgment of possession and warrant of eviction for the subject premises located at 653 Hempstead Turnpike, Elmont, New York 11003 upon submission of an affidavit of non compliance signed by an officer of the petitioner."

Petitioner obtained a judgment of possession and warrant, because respondent defaulted in fulfilling its obligations pursuant to said stipulation of settlement.

Respondent moved by order to show cause dated December 27, 2005 to vacate the judgment and warrant, and to dismiss the action because "petitioner has rendered respondent's performance under the terms of the aforesaid stipulation impossible . . . "

Virinder Kalra, vice president of respondent, submits an affidavit in support of the order to show cause. Mr. Kalra states that respondent operates a gas station. The stipulation provides that respondent was to have installed four new gasoline pumps and a canopy at the subject premises by November 23, 2005. Respondent states that the Town of Hempstead requires a building permit for the construction and that the property owner execute the building permit application. Respondent attaches a copy of the Town of Hempstead's application for a building permit. This application provides that the following must be submitted with the application: [*3] 1.3 copies of a recent survey.2.9 copies of a comprehensive site plan.3.2 sets of detailed construction plans (architectural, structural, plumbing and mechanical) that indicate compliance with the New York State Uniform Fire Prevention & Building Code and the Nassau County Fire Prevention Ordinance.

Respondent states that the new canopy and gas pumps were not installed: "due to Petitioner's failure and refusal to sign the Town of Hempstead's application for a building permit. Without the landlord's signing off on the application, the Town of Hempstead will not accept or entertain the application. Accordingly, Respondent cannot legally install the gas pumps or construct the canopy as required by the Stipulation."

Respondent indicates that its prior counsel, Justin Lite, contacted petitioner's counsel Mr. Hamill, by phone and letter dated September 18, 2005, requesting that petitioner sign off on the application. A second request for the permit signing was sent on September 26, 2005. Respondent contends that petitioner never signed off on the application.

Respondent argues that: 9.Respondent stands ready, willing and able to perform its obligations pursuant to the Stipulation of Settlement, assuming that Petitioner merely signs the application for the building permit. In fact, Respondent has already received cost quotations for both the installation of the gas pumps and the construction of the canopy, copies of which are annexed as EXHIBIT E.

Petitioner opposes the order to show cause by the affidavit of Nejdet Yetim, who is an officer of petitioner. Petitioner contends that respondent violated the stipulation of settlement by failing to install new Wayne gasoline pumps with a Wayne computer system and a canopy with the design approved by petitioner.

Petitioner argues that respondent violated the stipulation of settlement because respondent never completed the application for a building permit and in fact, just submitted a blank building permit for signature. Petitioner states that respondent's default consisted of: 9.That the only item annexed to respondent's moving papers is a blank building permit application form annexed to respondent's moving papers as respondent's exhibit "C". The respondent has never even filled out an application form for a building permit.[*4]10.There is no survey annexed to respondent's moving papers nor does the respondent allege that the respondent ever obtained a survey.11.There is no site plan annexed to respondent's moving papers nor does the respondent allege that the respondent ever obtained a site plan.12.There are no construction plans annexed to respondent's moving papers nor does the respondent allege that the respondent ever obtained any construction plans.13.That the only action the respondent has taken in regard to the stipulation of settlement in this matter is to obtain "cost quotations". See paragraph 9 of the affidavit of Virinder Karla, dated the 23rd day of December, 2005. Obtaining "cost quotations" has nothing to do with the stipulation of settlement in this matter.14.That based on the admissions made in the respondent's own moving papers, no building permit application has ever existed.15.That the idea that I should sign a blank, incomplete form is absurd.16.That the respondent has never even provided a blank incomplete form for me to sign, nor does the respondent allege that the respondent has done so.

Petitioner further comments that its attorney sent the October 12, 2005 letter, wherein petitioner requested the appropriate document for review and signature and the status of the purchase of the pumps and computer system: Dear Mr. Lite:I have spoken to Mr. Yetim regarding your letter of September 18, 2005.If a signature is required from 102 Elmont Realty Corp. kindly forward the appropriate document to my office for review and signature.Mr. Yetim would like to know what your client has done in order to attempt to comply with the stipulation of settlement to date. Have gasoline pumps and a computer system been purchased? If so please provide proof of purchase. When did they first attempt to obtain any needed permits? Upon receipt of this information Mr. Yetim will consider whether or not to grant your client's request for an extension of time.Very truly yours,[*5]/s/ Donald R. Hamill

The stipulation of settlement required petitioner to send respondent a 10 day notice of default. The notice of default, dated November 25, 2005 was sent by petitioner to respondent and stated: PLEASE TAKE NOTICE that Berikal, Inc. is in default under the terms of a stipulation of settlement entered into in a proceeding between 102 Elmont Realty Corp. and Berikal, Inc. in the First District Court of the County of Nassau under Index Number SP-0681-05 on the 6th day of June, 2005. The default consists of the following: Berikal, Inc. has failed to install four new Wayne three product gasoline pumps together with a Wayne Computer system at the aforesaid premises and has also failed to install a canopy at the aforesaid premises. Pursuant to the terms of said stipulation the landlord will enter a judgment of possession and warrant of eviction under the terms of said stipulation unless the default of Berikal, Inc. is cured within the time set forth in said stipulation.

DECISION

The Court agrees with petitioner that respondent violated the terms of the stipulation of settlement. The stipulation calls for respondent to expend at least $70,000. to comply with the terms of the stipulation and to have construction completed by November 23, 2005.

Respondent merely forwarded a blank building application without the necessary information required by the building application. The respondent further failed to submit any design for the canopy for the petitioner's approval.

In Village of Greenwood v. Mountain Lake Estates, Inc., 189 AD2d 987, 592 NYS2d 846 [3d Dept 1993], the court held that the respondent failed to file documents with the Building Inspector by May 1, 1990, required by the stipulation of settlement, and thus, violated same.

In Federation of Organizations, Inc. v. Bauer, 6 Misc 3d 10; 788 NYS2d 806 ; 2004 NY Slip Op 24398 [App Term 9th & 10th Jud Dists, 2004], the respondent failed to seek alternate housing required by the stipulation of settlement. The respondent missed one interview and then missed the rescheduled interview; he made no further attempts to reschedule the appointment. Eviction was found appropriate because of the respondent's failure to follow the clear language of the stipulation of settlement.

In the case at bar, the failure of petitioner to complete its undertakings required by the stipulation of settlement, constitutes a material breach. Thus, petitioner was justified in sending the notice of default and obtaining a judgment of possession and warrant. The respondent has not presented any legal grounds to vacate the stipulation nor any equity grounds to not "hold the parties to their bargain". See, Whitehall Realty Co. v. Friedman, 5 Misc 3d 126A, 798 NYS2d 714 (App Term 1st Dept), 2004 NY Slip Op 51184U; Appeal Denied 2005 NY App Div Lexis 4331 (1st Dept [*6]2005).

CONCLUSION

Respondent violated the terms of the stipulation of settlement. Petitioner is entitled to proceed to evict respondent without delay.

So Ordered:

DISTRICT COURT JUDGE

Dated: February 1, 2006

CC:Feldherr & Feldherr

William R. Garbarino, Esq.

SF/mp