One York Prop. LLC v Vista Media Group, Inc.

[*1] One York Prop. LLC v Vista Media Group, Inc. 2006 NY Slip Op 50899(U) [12 Misc 3d 1155(A)] Decided on May 17, 2006 Civil Court, New York County Singh, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 17, 2006
Civil Court, New York County

One York Property LLC, Plaintiff,

against

Vista Media Group, Inc., Defendant.



068991/05

Anil C. Singh, J.

Respondent Vista Media Group, Inc. ("Vista") moves for an order restoring this commercial holdover proceeding to the trial calendar; and upon such restoration, directing petitioner One York Property, LLC ("One York") to comply with the stipulation of settlement dated March 31, 2005 and for judgment in the amount of $294,250 plus costs and legal fees. Petitioner opposes the motion.

Pursuant to a lease dated June 4, 1999, One York is the successor landlord and Vista was the successor-tenant of that portion of the roof of a building located at 55 Avenue of the Americas (the "premises") on which Vista owned and operated an outdoor advertising sign structure, i.e., a billboard. The lease was for a ten year term, commencing on July 1, 1999, and expiring June 30, 2009.

On March 31, 2005, the parties entered into a lease modification and termination agreement (the "termination agreement"), accelerating the termination date of the lease from June 30, 2009 to March 31, 2005 (the "termination date"). The second paragraph of the termination agreement provides that, notwithstanding the acceleration of the termination date to March 31, 2005, Vista may remain in possession of the premises through January 15, 2006 (the "vacate date").

In order to fully effectuate the agreement between One York and Vista with regard to their respective rights and obligations following the termination date and through the vacate date, as agreed by the parties, One York commenced a holdover proceeding in this Court on April 27, 2005. The holdover proceeding was resolved by the written stipulation of settlement which was "so ordered" by the Court.

Paragraph 6 of the stipulation of settlement provides that, on or before the vacate date, Vista shall "remove all of its property from the premises other than the advertising device and [*2]deliver vacant possession thereof to One York." The stipulation of settlement provides further that the billboard and any other property remaining on the premises after the vacate date shall be deemed abandoned by Vista and One York may take possession of same without accountability to Vista.

In consideration of Vista's undertakings and provided Vista timely vacates the premises on or before the vacate date, the stipulation of settlement provides, in paragraph 10, that One York "shall pay to Vista the sum of $294,250 (the surrender amount') simultaneously with Vista's actual vacatur of the premises in accordance with all of the terms and provisions of this stipulation." The stipulation of settlement provides further that "[n]otwithstanding any other provisions of this stipulation or the lease, in the event the surrender amount is not paid in accordance with the provisions of this paragraph 10, the vacate date shall be postponed to the date on which the surrender amount is paid to Vista."

Paragraph 18 of the stipulation of settlement states that this Court "shall retain jurisdiction to enforce the terms of this stipulation in the event of a default by either party."

The moving affidavit of Christopher T. Young, the president of Vista, alleges that respondent surrendered possession of the premises to One York as of January 10, 2006 five days before the vacate date provided in the stipulation of settlement and requested that petitioner pay the surrender amount to respondent. Mr. Young states that he spoke with Stanley Perelman, the principal of One York, and advised him of respondent's surrender of the premises and demand for payment of the surrender amount.

Mr. Young alleges further that: (1) Vista has fully complied with its obligations under the stipulation of settlement and surrendered possession in good faith; (2) One York has refused and continues to refuse to pay the surrender amount to Vista in breach of the stipulation of settlement; (3) Vista is fully entitled to receive its bargained-for consideration the surrender amount without any further delay; and (4) Vista is entitled to an award of reasonable attorney's fees pursuant to paragraph 8(i) of the termination agreement.

In opposition, Mr. Perelman argues that respondent's motion must be denied, in its entirety, as a matter of law on grounds that: i) after entering into the stipulation of settlement, this summary proceeding was terminated and respondent's damages are limited to those attributable to breach of such agreement, which damages must be sought in a separate action in Supreme Court; ii) this Court, which is a court of limited jurisdiction, lacks jurisdiction over respondent's claims for injunctive or equitable relief seeking to compel petitioner to pay respondent the amount of $294,250 plus costs and legal fees; iii) this Court no longer has jurisdiction over this summary proceeding because respondent has surrendered possession of the premises; and iv) under the operative agreements, respondent is obligated to pay petitioner for structural damage it allegedly caused to the premise, petitioner does not owe respondent anything, and this Court lacks jurisdiction over the parties' post-settlement monetary claims.

The Court of Appeals addressed whether a stipulation settling a lawsuit may be enforced by way of motion or plenary action in Teitelbaum Holdings, Ltd. v. Gold, 48 NY2d 51, 396 NE2d 1029 (1979). There, the Court wrote: A settlement agreement entered into by parties to a lawsuit does not terminate the action unless there has been an express stipulation of discontinuance or actual entry of judgment in accordance with the terms of the settlement. Absent such termination, the court retains [*3]its supervisory power over the action and may lend aid to a party who had moved for enforcement of the settlement. Teitelbaum, 48 NY2d at 53, 396 NE2d at 1030.

Thus, under Teitelbaum, we must look to the language of the stipulation of settlement to determine whether the instant action was terminated.

Vista consented in paragraph 2 of the stipulation to "the issuance, forthwith, of a judgment of possession ( Judgment') in favor of One York and against all respondents." Paragraph 21 of the stipulation states: The parties agree that this stipulation may be "so ordered" by any judge or judicial hearing officer of the Civil Court and that any judge or judicial hearing officer may issue the judgment and warrant provided for herein without further notice to any party.

At first glance, the language in paragraphs 2 and 21 suggests that the parties contemplated that a judgment would be entered following the execution of the stipulation. However, another provision in the stipulation clearly reveals that the parties did not intend the stipulation to deprive this Court of authority to enforce it.

Paragraph 18 of the stipulation plainly states: The Court shall retain jurisdiction to enforce the terms of the stipulation in the event of a default by either party.

In light of the above provision, there is no question that this Court retains the power to enforce the stipulation by way of motion. Where, as here, the discontinuance of the action was, in effect, conditioned upon the proper payment of the amount provided in the stipulation of settlement, the parties did not unequivocally terminate the action. See, e.g., Berrian v. McCombs, 280 AD2d 442, 720 NYS2d 513 (2nd Dep't. 2001). Accordingly, respondent may enforce the stipulation by motion in this Court and is not required to file a separate plenary action in Supreme Court.

Petitioner's second contention is that this Court, which is a court of limited jurisdiction, lacks jurisdiction over respondent's claim for injunctive or equitable relief. Petitioner's contention is meritless for several reasons.

First, we disagree with petitioner's contention that respondent is seeking injunctive or equitable relief. An adequate remedy-at-law exists when the movant can be made whole or compensated by way of monetary damages. Ansonia Associates v. Ansonia Residents' Association, 78 AD2d 211, 214 (1st Dep't. 1980) ("If adequate relief can be obtained by a money judgment there is no need for equitable relief"). In the instant motion, respondent asks the Court to enforce the stipulation by directing petitioner to pay a specific sum of money. Where, as here, a stipulation may be enforced by the entry of a money judgment, an adequate remedy-at-law clearly exists.

Even if we were to assume for the sake of argument that respondent is seeking equitable or injunctive relief, the Appellate Division has held that, if a lower court can address a landlord-tenant dispute, it is generally desirable that it do so.

In Lexington Avenue Associates v. Kandell, 283 AD2d 379 (1st Dep't. 2001), the Appellate Division wrote: Civil Court has jurisdiction of landlord tenant disputes and when it can decide the dispute, as in this case, it is desirable that it do so. Here, Civil Court has jurisdiction to enforce the subject stipulation of settlement, which, in the context of a Civil Court [*4]nonpayment summary proceeding, requires defendant to vacate the apartment that plaintiff temporarily gave her while repairs to her apartment were ongoing, and to re-occupy her own apartments, upon certain stated conditions, and also provides for Civil Court's continuing jurisdiction for purposes of its implementation. Clearly, Civil Court should be the forum to decide whether the conditions stated in the stipulation exist, and to award any incidental relief to which plaintiff may be entitled, including rent, use and occupancy and attorneys' fees, if they do. Lexington Avenue Associates, 283 AD2d at 379 (citations omitted).

Likewise, the case of 1029 Sixth, LLC v. Riniv Corporation, 9 AD3d 142 (1st Dep't. 2004), is instructive. In Riniv, four companion commercial holdover proceedings were settled by so-ordered stipulations. The landlord appealed from orders of the Appellate Term, which reversed the Civil Court and required the landlord to make payments to respondent-tenants pursuant to their stipulations. The Appellate Division agreed with the Civil Court's view, and concluded that the Appellate Term was wrong in excusing the tenants' failure to comply with the terms of the stipulation and requiring the landlord to comply with the stipulation despite the tenants' default.

In Riniv, it is important to note that the reviewing courts tacitly assumed that Civil Court had the authority to enforce the stipulation of settlement. No one raised the jurisdiction of Civil Court as an issue. The silence of both the Appellate Term and Appellate Division implies that Civil Court has jurisdiction to enforce stipulations of settlement involving commercial holdover proceedings.

Petitioner cites five cases in support of its argument that Civil Court does not have jurisdiction over claims for injunctive or equitable relief. The cases cited by petitioner are, however, clearly distinguishable from the present matter.

In the first case cited by petitioner, North Waterside Redevelopment Co. v. Febbraro, 256 AD2d 261, 682 NYS2d 202 (1st Dep't. 1998), a landlord sought both a declaratory judgment and an injunction regarding a tenant's violation of a no-pet clause. By contrast, the tenant in the instant matter is seeking relief in the form of monetary damages against the landlord.

The second case cited is 19 West 45th Street Realty Co. v. Darom Electric Corp., 233 AD2d 184 (1st Dep't. 1996). In Darom, the Appellate Division held that Civil Court does not have jurisdiction to grant equitable relief in the form of piercing the corporate veil. Darom, 233 AD2d at 185. Petitioner's reliance on Darom is clearly inapposite.

In petitioner's third case, Trump Village Section 3, Inc. v. Sinrod, 219 AD2d 590 (2nd Dep't. 1995), a cooperative corporation which owned an apartment building brought an action for a declaratory judgment to enforce a no-pet policy contained in an occupancy agreement, as well as an injunction enjoining tenants from violating the no-pet policy. The Appellate Division held that Civil Court did not have the authority to grant such injunctive relief. Trump, 219 AD2d at 592. It is readily apparent that Trump is distinguishable from the present matter.

Next, petitioner cites Broome Realty Associates v. Sek Wing Eng, 182 Misc 2d 917 (App. Term, 1st Dep't. 1999). There, the Supreme Court, Appellate Term, held that Civil Court had no authority to direct a landlord to remove a surveillance camera or device from a hallway in an apartment building. Broome, 182 Misc 2d at 918. Clearly, the facts in Broome are completely distinguishable from the present matter in which the tenant seeks an award of [*5]monetary damages.

The final case cited by petitioner is Topaz Realty Corp. v. Morales, 9 Misc 3d 27 (App. Term, 2d & 11th Jud. Dists. 2005). In Topaz, the Appellate Term of the Second and Eleventh Judicial Districts held that an order directing landlord's attorney to release funds being held in escrow was equitable and injunctive in nature and, thus, not within the jurisdiction of the Civil Court to make.

By contrast, the instant matter does not involve funds being held in escrow.

Furthermore, the Appellate Term of the First Department has taken a position that is diametrically opposed to that of the Second and Eleventh Districts.

In Future 40th Street Realty, LLC v. Mirage Night Club, Inc., WL 1448861 (N.Y.Sup.App.Term. 2002), the Appellate Term of the First Department held that Civil Court properly directed the release of a $15,000 buyout held in escrow based upon tenant's substantial compliance with the terms of the so-ordered stipulation settling a holdover proceeding. Thus, petitioner's reliance on Topaz is misplaced.

Having addressed the cases cited by petitioner in support of its second contention, we turn now to petitioner's third contention, i.e., that this Court no longer has jurisdiction over this summary proceeding because respondent has surrendered possession of the premises. Simply stated, we believe petitioner's contention is meritless because the stipulation states on its face that this Court shall retain jurisdiction. The stipulation does not state that this Court relinquished jurisdiction once respondent surrendered possession.

Petitioner's final contention is that, under the operative agreements, respondent is obligated to pay petitioner for structural damage it allegedly caused to the premises; consequently, petitioner does not owe respondent anything, and this Court lacks jurisdiction over the parties' post-settlement monetary claims.

Petitioner's final contention is patently meritless. On its face, the stipulation required respondent to surrender possession by a date certain; in exchange, petitioner was to pay $294,250 to respondent. It is undisputed that respondent surrendered possession in a timely manner, and petitioner concedes that it has paid respondent nothing.

The Court has reviewed the stipulation carefully. However, the stipulation does not state that petitioner is permitted to deduct the cost of any alleged damage from the $294,250 sum specifically provided for in the stipulation, nor does it state that said payment is conditioned upon surrender of the premises in a certain condition.

For all of the above reasons, respondent's motion to restore this matter to the trial calendar is granted. The Court further finds that petitioner breached the stipulation by failing to pay $294,250 which was the bargained-for consideration for the acceleration of the termination date of the lease and surrender of the roof space.

Respondent's request for attorney's fees pursuant to paragraph 8(i) of the termination agreement is also granted.

Paragraph 8(a) of the termination agreement provides: This agreement when read together with the stipulation of settlement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and all understandings and agreements heretofore or simultaneously had between the parties are merged in and are contained in this agreement.[*6]

Furthermore, paragraph 8(i) of the agreement states: In the event Owner or Tenant shall commence litigation against the other to enforce its rights under this agreement or the lease, the prevailing party shall be entitled to recover from the other the reasonable costs and expenses (including reasonable attorneys' fees) thereby incurred.

Respondent is entitled to an award of reasonable attorneys' fees under the above provisions as it is the prevailing party. Accordingly, respondent's attorney is directed to prepare an affirmation of services and to serve said affirmation upon petitioner. If petitioner objects to the amount of attorneys' fees, the Court will schedule a hearing to resolve the dispute, upon application.

The clerk is directed to enter judgment in favor of respondent and against petitioner in the sum of $294,250 plus costs together with interest at the statutory rate from January 15, 2006 onward.

The foregoing constitutes the decision and order of the court.

Date: May 17, 2005_______________________

New York, New YorkAnil C. Singh