La Cara Mia Bar Lounge, Inc. v Great Locations, Inc.

[*1] La Cara Mia Bar Lounge, Inc. v Great Locations, Inc. 2009 NY Slip Op 50064(U) [22 Misc 3d 1107(A)] Decided on January 13, 2009 Supreme Court, Bronx County Roman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 13, 2009
Supreme Court, Bronx County

La Cara Mia Bar Lounge, Inc., Plaintiff(s),

against

Great Locations, Inc., Defendant(s).



309142/08

Nelson S. Roman, J.

Plaintiff moves seeking an Order granting it a preliminary injunction pursuant to CPLR §6301, staying the prosecution of a non-payment summary proceeding venued in District Court, Nassau County, titled Great Locations v. La Cara Mia, and enjoining defendant from initiating any other proceeding seeking to evict plaintiff from the premises which are the subject of the instant action. Plaintiff avers that he is entitled to a preliminary injunction insofar as he is likely to be meritorious in this action, will suffer irreparable harm absent the injunction and the prejudice it will suffer absent the injunction outweighs the prejudice to defendant if the injunction is granted. Plaintiff also seeks an Order pursuant to CPLR §602, joining the this action with the summary proceeding venued in Nassau County. No arguments are submitted in support of consolidation. Defendant opposes the instant motion but never proffers reasons for its opposition. Defendant cross-moves seeking an Order pursuant to CPLR §3211(a)(1) dismissing the within action based upon documentary evidence. Defendant avers that dismissal is warranted insofar as the crux of plaintiff's cause of action, fraud, is belied by the documents submitted herewith. Defendant also seeks an Order changing the venue of the within action to Nassau County. Defendant avers that insofar as the action herein involves real property, venued is governed by CPLR §507, which fixes proper venue in the county where the property at issue is located; in this case, Nassau County. Plaintiff opposes defendant's motion to dismiss, averring that even in the absence of fraud, its cause of action for rescission on grounds of mutual mistake is nonetheless viable. Plaintiff opposes defendant's motion seeking to change the venue of the within action averring that CPLR §507 does not apply to its cause of action for rescission.

For the reasons that follow hereinafter, plaintiff's motion is hereby denied and Defendant's cross-motion is also denied.

The instant action is for lease rescission and reformation and for unjust enrichment. The [*2]amended complaint, in five causes of action, alleges the following. The first cause of action is for lease recession and unjust enrichment and therein plaintiff alleges that it is a tenant within premises it acquired from defendant, said premises located at 10 Brooklyn Avenue, Freeport, NY. (Plaintiff's Amended Complaint ¶1). Defendant represented that the premises herein could immediately be used as a restaurant and bar, while defendant had knowledge that the State Liquor Authority (SLA) had issued a prescription barring the use of the premises as a bar until at least June 2009. (¶4). Defendant withheld this information from plaintiff, and knowing that plaintiff would be unable to open for business nonetheless had plaintiff pay $25,000 in rental arrears accrued by a prior tenant, $7,400 in rent and $7400 representing a security deposit. (¶¶4-5). The execution of the lease herein was thus based on fraud and defendant entered into the same solely for financial gain. (¶¶6-7). Plaintiff, unaware of the SLA prescription or defendant's intent, expended $60,000 to repair and renovate the within premises and also paid the seller of said business $20,000 to acquire the same. (¶¶8-9, 11). Had plaintiff known about defendant's intent and the prescription, he never would have executed the lease. (¶10). The lease herein should thus be rescinded and plaintiff should be awarded damages in the amount of $119,000. (¶17).

The second cause of action alleges unjust enrichment and is premised upon the same facts above. (¶¶19-20). The third cause of action is for lease reformation wherein, based on the same facts above, plaintiff seeks to reform the lease so as to abate rent until such time as the SLA prescription is lifted. (¶¶21-22). The fourth cause of action is for lease reformation premised upon mutual mistake, specifically that both plaintiff and defendant believed that the premises herein could be used as a restaurant and bar. (¶¶23-27). The fifth cause of action is for legal fees. (¶¶28-30).

In support of the within motion, plaintiff submits a copy of a non-payment petition, venued in District court, Nassau County, in an action titled Great Locations v. La Cara Mia. Within said petition, the defendant herein seeks to evict the plaintiff herein from the premises at issue herein for the plaintiff's failure to pay rent. Plaintiff submits its answer to the petition just discussed wherein it raises five affirmative defenses, none of which are the grounds upon which the instant action is premised.

Plaintiff submits a document from the SLA dated June 11, 2008. Said document, sent to plaintiff evinces that the application for a retail liquor license was disapproved insofar as the license previously issued to the premises herein was revoked on June 13, 2007 and a two year prescription against licensing was issued at the same time.

Plaintiff submits a copy of the summons and complaint as well as a copy of the amended complaint. The summons premises venue of the within action on grounds that plaintiff's principal place of business is Bronx County. Plaintiff also submits a copy of the lease and rider for the premises herein. The same is dated October 1, 2007, is between plaintiff and defendant, and is executed by the same.

Plaintiff submits two affidavits from Angela Padilla (Padilla), president of the plaintiff. Within the first affidavit, Padilla reiterates all the allegations in plaintiff's amended complaint. Within her second affidavit, Padila states, in pertinent part, as follows. If indeed defendant was not [*3]aware that of SLA's prescription at the time of the execution of the lease, plaintiff's lack of said knowledge entitles it to rescission premised upon mutual mistake. The premises herein are unique and the equitable relief sought cannot be obtained in the District Court action. If plaintiff is evicted and a stay is not granted, it loses its ability to be made whole. Any prejudice to the defendant should a stay be granted is negligible. The basis of venue for the within action is plaintiff's principal place of business, Bronx County.

In opposition to the instant motion and in support of its cross-motion, defendant submits a document titled "Agreement to pay outstanding debt," dated March 19, 2007. Said document is between Neil Curtis (Curtis) and Ramona Agramonte (Agramonte). Within said document Agramonte agrees to pay Curtis, of defendant's company, all arrears owed by Cecilio Almonte (Almomte). Simultaneously with said document, a new lease would be executed. The amount of arrears would be paid in installments.

Defendant submits the document from the SLA submitted by plaintiff and discussed above as well as copy of the rider attached to the lease already submitted by plaintiff and discussed above.

Defendant submits an affidavit from Neil, president of the defendant. Said affidavit states in pertinent part that the property at issue herein is located in Nassau County and that all potential witnesses in this action are also located therein.

CPLR 3211(a)(1)

The proponent of a motion to dismiss plaintiff's complaint pursuant to CPLR §3211(a)(1), that a defense is founded upon documentary evidence, bears the burden of coming forward with documentary evidence, which utterly refutes the factual allegations contained in plaintiff's complaint thereby conclusively establishing a defense to the asserted claims as a matter of law. IMO Industries, Inc., v. Anderson Kill & Olick, P.C., 267 AD2d 10 (1st Dept. 1999); Saxony Ice Co., division of Springfield Ice Co., Inc. V. Ultimate Energy Restaurant Corp., 810 NY2d 344 (2nd Dept. 2006); Berardino v. Ochlan, 2 AD3d (2nd Dept 2003); Goshen v. Mutual Life Insurance Company of New York, 98 NY2d 314 (2002); Well v. Rambam, 300 AD2d 580 (2nd Dept. 2002); Leon v. Martinez, 84 NY2d 83 (1994); European American bank v. Miller, 265 AD2d 374 (2nd Dept. 1999). Documentary evidence means judicial records, judgments, orders, contracts, deeds, wills, mortgages and " a paper whose content is essentially undeniable and which, assuming the verity of it's contents and the validity of its execution, will itself support the ground upon which the motion is based." Webster v. State of New York, 2003 WL 728780 (Court of Claims 2003). Affidavits and deposition transcripts are not documentary evidence establishing relief under CPLR §3211(a)(1). Fleming v. Kamden Properties, LLC, 41 AD3d 781 (2nd Dept. 2007); Berger v. Temple Beth-El of Great Neck, 303 AD2d 346 (2nd Dept. 2003); Brown v. Solomon and Solomon, P.C., 181 Misc 2d 461 (City Court, Albany County 1999).

On a motion to dismiss pursuant to CPLR §3211(a)(1), much like on a motion pursuant to [*4]CPLR §3211(a)(7), the allegations in plaintiff's complaint are accepted as true, constructed liberally and given every favorable inference. Arnav Industries, Retirement Trust v. Brown, Raysman, Millstein, Felder & Steiner, L.L.P., 96 NY2d 300 (2001); Hopkinson III v. Redwing Construction Company, 301 AD2d 837 (3rd Dept. 2003); Fern v. International Business Machines Corporation, 204 AD2d 907 (3rd Dept. 1994). To that end any submissions, limited to testimony and affidavits, are also accepted as true and the issue then becomes whether the documentary evidence establishes defendant's defense as a matter of law in light of said submissions. Fern v. International Business Machines Corporation, 204 AD2d 907 (3rd Dept. 1994); McCue v. County of Westchester, 18 AD3d 830 (2nd Dept. 2005) (Given the allegations in the complaint, and the testimony and affidavit submitted by plaintiff in opposition to defendant's motion, the Court found that defendant's evidence failed to conclusively dispose of plaintiff's cause of action).

Venue

All things being equal, a transitory action should be tried where the cause of action arose. Clark v. New Rochelle Medical Center, 170 AD2d 271 (1st Dept. 1991); Kim v. Flushing Hospital and Medical Center, 138 AD2d 252 (1st Dept. 1988). A transitory action is "an action that can be brought in any venue where defendant can be personally served with process." Black's Law Dictionary, 32 (7th ed. 1999). A transitory action is one brought to enforce personal rights or obligations and is an action that could have occurred anywhere rather than in a particular locale. Id.

Article 5 of the CPLR fixes the venue of certain actions based on a host of different factors, such as the type of action, the residence of the parties or the status of the party being sued. CPLR §503 prescribes venue in transitory actions based on the residence of the respective parties and in the case of corporations, where the same have a principal office. CPLR §504 prescribes venue in actions against municipalities. CPLR §505 prescribes venue in actions involving public authorities. CPLR §507 prescribes the proper venue in cases involving real property actions, mandating that proper venue is the location of the property at issue. CPLR §510 sets forth the grounds for changing the venue of a particular action and CPLR §511 sets forth the procedure for seeking the change.

Venue in personal injury transitory actions is governed by CPLR §503. Philogene v. Fuller Auto Leasing, 167 AD2d 178 (1st Dept. 1990); Fisher v. Curtis, 8 AD3d 527 (2nd Dept. 2004); Nixon v. Federated Department Stores, Inc., 170 AD2d 659 (2nd Dept. 1991); Uruchima v. Burns, 6 Misc 3d 1022(A) (Supreme Court, Kings County 2005); Jason v. Dumel, 3 Misc 3d 1101(a) (Supreme Court, Kings County 2004). When venue is chosen pursuant to CPLR §503, it is assumed that the court in the venue chosen has both subject matter and personal jurisdiction. Id. CPLR §503, premises venue upon the residence of the parties.

The residence of a party for purposes of venue is the residence at the time an action is commenced. Mandelbaum v. Mandelbaum, 151 AD2d 727 (2nd Dept. 1989). Where a party resides after an action is commenced is irrelevant. Id. Residence is the place where a party resides for some time, with the bona fide intent to make said place a residence for some length of time and with some degree of permanency. Id. Buziashvili v. Ryan, 264 AD2d 797 (2nd Dept. 1999); Siegfried v. Siegfried, 92 AD2d 916 (2nd Dept. 1983); Klatz v. Siroty, 62 AD2d 1011 (2nd Dept. 1978). For [*5]purposes of residence, while it is not necessary to show an intent to make a place a permanent home, mere physical presence at a location is insufficient to establish residence. Mandelbaum v. Mandelbaum, 151 AD2d 727 (2nd Dept. 1989). Generally, in order to establish residence a party must submit documentary evidence demonstrating the same. Buziashvili v. Ryan, 264 AD2d 797 (2nd Dept. 1999); Siegfried v. Siegfried, 92 AD2d 916 (2nd Dept. 1983). Correspondence sent to a particular address is insufficient to establish residence. Id. A driver's license, by itself, is insufficient to establish residence. Davis v. Elrac, 272 AD2d 504 (2nd Dept. 2000). An affidavit asserting a party's residence, standing alone, is insufficient to establish residence. McKenzie v. MAJ Transit, Inc., 204 AD2d 154 (1st Dept. 1994). Some documents evidencing residence are bank accounts, voter registration records, library cards, and employment records. Siegfried v. Siegfried, 92 AD2d 916 (2nd Dept. 1983). Where movant on a motion to change venue establishes that the venue selected was improper and the opposition submitted lacks any evidence demonstrating residence, a motion to change venue should be granted. Rivera v. Jensen, 307 AD2d 229 (1st Dept. 2003); Key-Kanuteh v. Kenia, 288 AD2d 16 (1st Dept. 2001). Additionally, while an affidavit can be submitted to establish residence, the failure of the same to demonstrate an intent to reside at a location and with some degree of permanence, warrants the granting of a motion to change venue. Rivera v. Jensen, 307 AD2d 229 (1st Dept. 2003); Key-Kanuteh v. Kenia, 288 AD2d 16 (1st Dept. 2001); Martinez v. Semicevic, 178 AD2d 228 (1st Dept. 1991); Gladstone v. Syvertson, 186 AD2d 400 (1st Dept. 1992). Conversely, where there is ample evidence establishing venue, sufficient to create an issue of fact, the court should have a hearing in order to determine residence and decide the propriety of the venue chosen. Rivera v. Jensen, 307 AD2d 229 (1st Dept. 2003). Documents submitted related to residence must precede the commencement of an action, and any documents purporting to establish residence dated after the commencement of an action are irrelevant. Buziashvili v. Ryan, 264 AD2d 797 (2nd Dept. 1999)

CPLR §510(1) provides for a change of venue when the county designated is improper. A defendant seeking to challenge the chosen venue on grounds that said venue is improper must first comply with the requisites of CPLR §511, which requires that a demand to change venue be interposed with or prior to the service of an answer and that a motion for a venue change be made within fifteen days thereafter. The time period prescribed by CPLR §511 is not merely directory but requires strict compliance. Obas v. Grappell, 43 AD3d 431 (2nd Dept. 2007); Pittman v. Maher, 202 AD2d 172 (2nd Dept. 1994). Once it is determined that plaintiff has selected an improper venue and that defendant has complied with CPLR §511, the court should grant a defendant's motion to change venue. Burstein v. Fazzari, 239 AD2d 375 (2nd Dept. 1997); Nixon v. Federated Department Stores, Inc., 170 AD2d 659 (2nd Dept. 1991). Failure to comply with the mandates of CPLR §511, particular the timing requirements, mandates denial of a defendant's motion to change venue. Singh v. Becher, 249 AD2d 154 (1st Dept. 1998); Obas v. Grappell, 43 AD3d 431 (2nd Dept. 2007); Pittman v. Maher, 202 AD2d 172 (2nd Dept. 1994). In circumstances where the there is noncompliance or a delay in compliance with CPLR §511 due to plaintiff's willful omissions and misleading statements regarding his residence, failure to comply with CPLR §511 does not serve to bar a defendant's motion to change venue based on improper venue. LaMantia v. North Shore University Hospital, 259 AD2d 294 (1st Dept. 1999); Koschack v. Gates Construction Corporation, 225 AD2d 315 (1st Dept. 1996); Philogene v. Fuller Auto Leasing, 167 AD2d 178 (1st Dept. 1990); Pittman v. Maher, 202 AD2d 172 (2nd Dept. 1994). As such, when a defendant fails to timely move for a change of venue based upon [*6]representations made by the plaintiff leading the defendant to conclude that the venue chosen was proper, defendant may move for a change of venue well after the fifteen day statutory period, provided he moves promptly upon discovering that the wrong venue was chosen. Id. In Philogene, the court granted defendants motion to change venue after defendant discovered that plaintiff did not reside in the county where the action was venued. Philogene v. Fuller Auto Leasing, 167 AD2d 178 (1st Dept. 1990). When the case was venued with the filing of the summons and complaint, the plaintiff represented, within the complaint that he resided in New York County. Id. However, at his deposition plaintiff testified that he had been residing in Richmond County when the action was commenced. Id. Thus, in Philogene, the Court held that simply representing an incorrect residence within a complaint constituted wilful misrepresentation. Id.

When a defendant makes a motion seeking to change the venue pursuant to CPLR §510(1), the court must first determine, given the type of action, what venue provision governs and what constitutes proper venue. Uruchima v. Burns, 6 Misc 3d 1022(A) (Supreme Court, Kings County 2005). Thereafter, it is defendant's burden to establish that given the type of action, the venue chosen was improper. Id. Plaintiff must then demonstrate that the venue chosen was proper. Id. If the venue chosen by plaintiff was improper, the court should grant defendant's motion and transfer venue to the proper county. Simpson v. Sears, Roebuck and Co., 212 AD2d 473 (1st Dept. 1995). Defendant's motion may be denied and the improperly picked venue retained, if plaintiff demonstrates that the venue chosen serves a cognizable purpose, such as the convenience of material witnesses. Buterbaugh v. Del Pesce, 160 AD2d 584 (1st Dept. 1990). However, when the plaintiff seeks denial of defendant's motion, retainer of an improper venue or a discretionary venue change, such relief must be requested by cross-motion and failure to cross-move mandates granting of defendant's motion. Sellars v. Tubbs, 97 AD2d 1025 (4th Dept. 1991); Pitegoff v. Lucia, 97 AD2d 896 (3rd Dept. 1983). In Simpson, the Court found that plaintiff's choice to set venue based on the situs of the alleged accident was improper. Simpson v. Sears, Roebuck and Co., 212 AD2d 473 (1st Dept. 1995). The court held that venue in transitory actions was governed by CPLR §503(a), fixing venue based on residence. Id. The court deemed plaintiff's choice of venue to be improper and after determining that defendant complied with the statute and that plaintiff's choice of venue was improper, changed venue to the proper county. Id. In Buterbaugh, the court found that plaintiff's choice of venue based on the situs of the alleged accident was improper. Buterbaugh v. Del Pesce, 160 AD2d 584 (1st Dept. 1990). However, after plaintiff in that case demonstrated that the convenience of the witnesses warranted retainer of the improper venue chosen, the court denied defendant's motion to change venue and granted plaintiff's cross-motion to retain venue. Id. An action brought in the wrong county requires a venue change as a matter of right. Jason v. Dumel, 3 Misc 3d 1101(a) (Supreme Court, Kings County 2004). A plaintiff forfeits the right to select the venue in an action if said plaintiff chooses an improper venue in the first instance. Kelson v. Nedicks Stores, Inc., 194 AD2d 315 (1st Dept. 1984); Burstein v. Fazzari, 239 AD2d 375 (2nd Dept. 1997); Nixon v. Federated Department Stores, Inc., 170 AD2d 659 (2nd Dept. 1991). Furthermore, plaintiff's failure to respond to a defendant's demand to change venue, supports a transfer of the case to the venue selected by defendant. Lynch v. Cyprus Sah & Dorr Co., Inc., 272 AD2d 260 (1st Dept. 2000).

The proponent of a motion to change venue can establish the impropriety of the venue chosen [*7]using a police accident report, Hernandez v. Seminatore, 2008 Slip. Op. 01087 (1st Dept. 2008); Katuneh v. Kenia, 288 AD2d 16 (1st Dept. 2001); Ruiz v. Lazala, 26 AD3d 366 (2nd Dept. 2006), or Department of Motor vehicle records, Furlow v. Braeubrum, 259 AD2d 417 (1st Dept. 1999).

Venue changes pursuant to CPLR §§510(2) and (3), unlike venue changes pursuant to CPLR §510(1), are not changes granted as a matter of right; instead such venue changes are left to the sound discretion of the Court. Id.; O'Brien v. Vassar Brothers Hospital, 207 AD2d 169 (2nd Dept. 1995). Such venue changes do not require that defendant serve a demand to change venue pursuant to CPLR §511 and can be made within a reasonable time after the action is commenced. Pittman v. Maher, 202 AD2d 172 (2nd Dept. 1994). On a motion to change venue pursuant to CPLR §510(3), where it is alleged that the convenience of the witnesses would best be served by the change, a party must satisfy several factors. O'Brien v. Vassar Brothers Hospital, 207 AD2d 169 (2nd Dept. 1995). First, the moving party must provide the names, addresses, and occupations of all prospective witnesses. Id. Second, the facts about which said witnesses will testify must be disclosed so the court can ascertain whether said witnesses are material and necessary. Id. Third, it must be demonstrated that the witnesses are willing to testify. Id. Lastly, it must be shown how the witnesses would be inconvenienced absent the change in venue. Id. A failure to meet the requirements outlined warrants denial of the motion to change venue. Id.

When a defendant fails to comply with CPLR §511 and makes no showing requiring a venue change under CPLR §§510(2) or 510(3), a change in venue is entirely within the court's discretion. Pittman v. Maher, 202 AD2d 172 (2nd Dept. 1994). Such discretion should be used sparingly, such as when venue is controlled by contract binding the parties, the failure to comply with the time requirements of CPLR §511 were not egregious, a venue change is required by consolidation, or where judicial policy requires that the case be venued elsewhere. Id. Additionally, court's have routinely granted venue changes in cases where the change is sought for none of the statutory reasons. In Kim v. Flushing Hospital and Medical Center, 138 AD2d 252 (1st Dept. 1988), the court granted a change of venue, even though it determined that the venue was proper when the case was commenced. Id. In Kim, the court reasoned that since the case no longer had a nexus to the county of venue, circumstances warranted a change of venue. Id. In Kim, the plaintiff ultimately moved to another county other than the one where the case had been venued. Id. In cases where venue has been chosen based on defendant's place of business rather than the county of occurrence, this court has consistently granted motions to change the venue of the action to the county of occurrence., Id.; Ford v. Servistar Corporation, 133 AD2d 23 (1st Dept. 1987), or to the county where medical treatment was received, Siegel v. Greenberg, 85 AD2d 516 (1st Dept. 1981). In Ford, it was clear that venue was properly chosen based on defendant's place of business. However, the court reasoned that the action ought to have been tried in the county of occurrence. Ford v. Servistar Corporation, 133 AD2d 23 (1st Dept. 1987). In Kudelski v. 450 Lexington Venture, 198 AD2d 157 (1st Dept. 1992), the court granted a discretionary venue change reasoning that the only nexus to the initially chosen venue, had been severed. In Gennaro v. Grossfeld, 186 AD2d 718 (2nd Dept. 1992), the court granted a discretionary venue change despite a three year delay in seeking the same after concluding that the action had no nexus to the originally chosen venue. Moreover, in Wilson v. Sponable, 77 AD2d 799 (4th Dept. 1980), the court held that since CPLR §510(3) allows the court to consider whether the change in venue promotes the "ends of justice," the court is free to consider other factors [*8]in deciding whether to change venue.

Preliminary Injunction

The statutory right to a preliminary injunction and the procedure to be followed in obtaining the same is governed by article 63 of the CPLR. CPLR §6301 describes the grounds upon which the Court can grant a preliminary injunction and reads as follows

A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff. A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had.

CPLR §6311 states that a motion seeking a preliminary injunction may only be granted upon notice to the defendant and that a motion seeking the same may be served with the summons or at any time thereafter, provided the same is served prior to judgment. CPLR §6312 promulgates what is required on a motion seeking a preliminary injunction, stating that no application for a preliminary injunction shall be granted absent a provision that defendant provide an undertaking to compensate the same, should it later be found that the preliminary injunction was improperly granted. CPLR §6312 states

(a) Affidavit; other evidence. On a motion for a preliminary injunction the plaintiff shall show, by affidavit and such other evidence as may be submitted, that there is a cause of action, and either that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action and tending to render the judgment ineffectual; or that the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff. (b) Undertaking. Except as provided in section 2512, prior to the granting of a preliminary injunction, the plaintiff shall give an undertaking in an amount to be fixed by the court, that the plaintiff, if it is finally determined that he or she was not entitled to an injunction, will pay to the defendant all damages and costs which may be sustained by reason of the injunction, including: 1. if the injunction is to stay proceedings in another action, on any ground other than that a report, verdict or decision was obtained by actual fraud, all damages and costs which may be, or which have been, awarded in the other action to the defendant as well as all damages and costs which may be awarded him or her in the action in which the injunction was granted; or, 2. if the injunction is to stay proceedings in an action to recover real property, or for dower, on any ground other than that a verdict, report or decision was obtained by actual fraud, all damages and [*9]costs which may be, or which have been, awarded to the defendant in the action in which the injunction was granted, including the reasonable rents and profits of, and any wastes committed upon, the real property which is sought to be recovered or which is the subject of the action for dower, after the granting of the injunction; or, 3. if the injunction is to stay proceedings upon a judgment for a sum of money on any ground other than that the judgment was obtained by actual fraud, the full amount of the judgment as well as all damages and costs which may be awarded to the defendant in the action in which the injunction was granted. (c) Issues of fact. Provided that the elements required for the issuance of a preliminary injunction are demonstrated in the plaintiff's papers, the presentation by the defendant of evidence sufficient to raise an issue of fact as to any of such elements shall not in itself be grounds for denial of the motion. In such event the court shall make a determination by hearing or otherwise whether each of the elements required for issuance of a preliminary injunction exists.

A preliminary injunction is an extraordinary provisional remedy and plaintiff is only entitled to the same upon a special showing. Margolies v. Encounter, Inc., 42 NY2d 475 (1977). This is because in granting plaintiff a preliminary inunction, a defendant's interests are substantially limited, in the absence of resolution of the pending action on the merits. Id. It is for this reason that the no application for a preliminary injunction shall be granted absent the posting of an undertaking, the amount of which is fixed by the Court. Id. Such undertaking serves to compensate the defendant for any damages sustained as a result of the preliminary injunction should it later be determined that such preliminary injunction should never have been granted. Id. Thus, "a party seeking the drastic remedy of a preliminary injunction must establish a clear right to that relief under the law and the undisputed facts upon the moving papers." Gagnon Bus Compnay, Inc., v. Vallo Transportation, Ltd., 13 AD3d 334, 335 (2nd Dept. 2004); William M. Blake Agency, Inc., v. Leon, 283 AD2d 423 (2nd Dept. 2001); C.A. Gambrill Manufacturing Company v. American Foreign Banking Corporation, 194 A.D. 425 (1st Dept. 1920). Conclusory statements lacking in factual evidentiary detail warrant the denial of a motion seeking a preliminary injunction. Village of Honeoye Falls v. Elmer, 69 AD2d 1010 (4th Dept. 1979). A preliminary injunction can only be granted when the party seeking such relief demonstrates all of the following: (1) a likelihood of ultimate success on the merits; (2) irreparable injury if the preliminary injunction is withheld; and (3) a balance of equities tipping in the moving party's favor. Doe v. Axelrod, 73 NY2d 748 (1988); Stockley v. Gorelik, 24 AD3d 535 (2nd Dept. 2005); Moy v. Umeki, 10 AD3d 604 (2nd Dept. 2004); Livas v. Mitzner, 303 AD2d 381 (2nd Dept. 2003); Somerset Railroad Corporation v. Graham, 89 AD2d 819 (4th Dept. 1982); Albini v. Sorlok Associates, 37 AD2d 835 (2nd Dept. 1971).

With regard to likelihood of success on the merits, the inquiry on a motion seeking a preliminary injunction is whether the evidence tendered evinces that plaintiff can indeed support the claims made against the defendant. Doe v. Axelrod, 73 NY2d 748 (1988) (Court denied movant's request for a preliminary injunction when movant failed to demonstrate a likelihood of success on the merits. Court held that plaintiff failed to tender evidence supporting or proving the claims alleged.). On this issue a plaintiff is not required to prove tender conclusive proof thereby establishing success in the underlying action beyond any factual dispute. Ma v. Lien, 198 AD2d 186 [*10](1st Dept. 1993); Moy v. Umeki, 10 AD3d 604 (2nd Dept. 2004). This is particularly true when denial of injunctive relief would render the final judgment ineffectual. Ma, supra ; Republic of Lebanon v. Sotherby's, 167 AD2d 142 (1st Dept. 1990). Thus. Issues of fact, cannot serve as a basis for denial of any motion seeking a preliminary injunction. Ma, supra ; Moy, supra ; Stockely, supra ; Demartini v. Chatham Green, Inc., 169 AD2d 689 (1st Dept. 1991); Livas v. Mitzner, 303 AD2d 381 (2nd Dept. 2003).

With regard to irreparable harm, as discussed above, generally the inquiry is whether in the absence of a preliminary n injunction, usually to preserve the status quo, any judgment on the underlying action would be rendered ineffectual due to the dissipation of the property forming the object of the litigation. Ma, supra ; Moy, supra ; Sotherby's, supra .

With regard to the balancing of equities, the same requires the court to look at the prejudice which accrue to the parties in the event the application for an injunction is granted or denied. Ma, supra . Should the court determine that plaintiff would be irreparably harmed by denial of the preliminary injunction while defendant would suffer little or no harm if said injunction is granted, then a preliminary injunction should be granted. Id.

It is well settled that while it is within the court's discretion to set the amount of any undertaking, the court must order that an undertaking be posted upon determination that a preliminary injunction is warranted. Moy, supra ; Livas, supra . The undertaking should be an amount rationally related to the amount of damages defendants might suffer as a result of the preliminary injunction. Blueberries Gourmet, Inc. v. Aris Realty Corp., 255 AD2d 348 (2nd Dept. 1998). The failure to require the plaintiff post an undertaking does not render an order an order granting a preliminary injunction void and instead renders it voidable upon motion. Olechena v. Town of Smithtown, 51 AD2d 1036 (2nd Dept. 1976). Such a shortcoming can be rectified by a motion to compel the posting of an undertaking. Id.

Preliminary Injunctions and Summary Proceedings

A lower court presiding over a summary proceeding lacks the power to award equitable relief. Blumenauer v. Richelson, 219 A.D. 462 (3rd Dept. 1927); Hoffman v. Hoffman, 212 A.D. 531 (4th Dept. 1925); Krutzeck v. Kruse, 6 Misc 2d 718 (County Court, Erie County 1957). However, such a court does have the power, as per Real Property Law 743 and case law, to consider any and all equitable defenses to the summary proceeding. Mawson v. Wermuth, 20 Bedell 234 (1905); Magnotta v. Parkway Fleetwood Building, Inc., 277 A.D. 896 (2nd Dept. 1950); Cobert Construction corp. v. Bassett, 109 Misc 2d 119 (1st Dept. 1981); Zuzel v. Kurek, 190 N.Y.S. 642 (Supreme Court, Erie County 1921). Thus, it is well settled that a court of equity will not stay a summary proceeding pending the outcome of a summary proceeding unless the equitable relief sought is unavailable as a defense in the summary proceeding. Lun Far Company, Inc. v. Aylebury Associates, 40 AD2d 794 (1st Dept. 1972) (Court denied motion seeking to join summary proceeding with Supreme Court action for lease reformation insofar as such joinder would necessitate a stay of the summary proceeding. Court held that a stay of the summary proceeding was only warranted if the equitable relief sought was not available in the summary proceeding and further held that the equitable remedy of reformation was within the court's purview in the summary proceeding.); Henlun Holding Corporation v. ESS Brothers Holding Corporation, 228 A.D. 102 (1st Dept. 1930) (Court denied motion seeking a preliminary injunction staying a non-payment summary proceeding pending the resolution of action in Supreme Court. Court held that grounds for Supreme Court action could be [*11]interposed as and would constitute a complete defense in the summary proceeding.); Huyler's v. Broadway-John St. Corporation, 195 A.D. 410 (1st Dept. 1921) (Court denied motion for a preliminary injunction staying a summary proceeding where grounds for preliminary injunction could be interposed as defenses in summary proceeding.); Amoo v. Eastlake Realty Company, 133 AD2d 657 (2nd Dept. 1987); Potter v. Potter, 59 A.D. 140 (2nd Dept. 1901) (Court granted preliminary injunction staying, inter alia, the prosecution of an underlying summary proceeding when equitable relief sought, could not be fully addressed within the summary proceeding.); Einhorn v. Perma Realty Corp., 207 Misc. 1123 (Supreme Court, Westchester County 1955) (Denial of preliminary injunction when defense of reformation based upon fraud or mutual mistake was available in the summary proceeding.); Neuman v. Namposa Realty Corp., 119 NYS2d 835 (Supreme Court, Westchester County 1953). As the cases clearly demonstrate, what this in fact means is that if the equitable relief sought can be pled as a defense in the summary proceeding the court shall not stay the summary proceeding because said defenses can in fact be considered in the summary proceeding. Id. In promulgating the applicable rule, the court in Neuman, stated

...it is the general rule that the supreme court should not restrain a pending summary proceeding except in a case where the circumstances indicate that the respondent has clear, equitable grounds entitling him to retain possession and which may not be effectively interposed a defense in the local court.

Neuman, at 838.

Consolidation Pursuant to CPLR §602(a)

CPLR §602(a), gives the Court the discretion to consolidate and jointly try actions involving common questions of fact or law. Progressive insurance Company v. Vasquez, 10 AD3d 518 (1st Dept. 2004); Teielbaum v. PTR Company, 6 AD3d 254 (1st Dept. 2004). Consolidation is preferred if it eases the decision making process in a case or if it serves judicial economy. Id. Consolidation is also appropriate when the consolidation will "avoid unnecessary duplication of trials, save unnecessary costs and expense and prevent divergent decisions based on the same facts." Sokolow, Dunaud, Mercadier & Carreras, LLP v. Lacher, 299 AD2d 64, 74 (1st Dept. 2002); ChinaTown Apartments, Inc., v. New York City Transit Authority, 100 AD2d 824 (1st Dept. 1984). Consolidation of cases involving common questions of law or fact is appropriate, unless the party opposing the consolidation demonstrates that consolidation will prejudice a substantial right. Id.; Progressive insurance Company v. Vasquez, 10 AD3d 518 (1st Dept. 2004). It must be demonstrated that the right prejudiced by the consolidation is that of the party opposing the consolidation. Business Council of New York State, Inc., v. Cooney, Jr, 102 AD2d 1001 (3rd Dept. 1984).

Discussion

Insofar as defendant seeks either complete disposition of plaintiff's action or alternatively a change of venue, this Court finds it logical to address defendant's cross-motion first, addressing plaintiff's motion only if defendant's motion is denied.

Defendant's cross-motion seeking dismissal of the within action pursuant to CPLR §3211(a)(1) on grounds that the documentary evidence so mandates, is hereby denied.

A motion seeking dismissal pursuant to CPLR §3211(a)(1) shall be granted when the defendant tenders evidence which utterly refutes the factual allegations contained in plaintiff's complaint thereby conclusively establishing a defense to the asserted claims as a matter of law. [*12]Documentary evidence is broadly defined to include a host of documents, however, the one document that cannot be used to carry defendant's burden is an affidavit. On a motion to dismiss pursuant to CPLR §3211(a)(1), much like on a motion pursuant to CPLR §3211(a)(7), the allegations in plaintiff's complaint are accepted as true, constructed liberally and given every favorable inference. To that end any submissions, limited to testimony and affidavits, are also accepted as true and the issue then becomes whether the documentary evidence establishes defendant's defense as a matter of law in light of said submissions.

In this case, defendant avers that dismissal is warranted insofar as the documentary evidence belies any claim that it fraudulently induced the plaintiff, by withholding information, into executing the lease for the premise herein. Defendant argues that insofar as the crux of plaintiff's claim is intentional fraud thereby granting plaintiff the right to rescind or reform the lease herein, the documentary evidence conclusively negating such fraud establishes a defense to the action as a matter of law. Defendant's motion is denied however, insofar as the evidence submitted fails to utterly refute the allegations of fraud within the complaint and also fails to refute plaintiff's cause of action for rescission premised upon mutual mistake.

In this action, plaintiff asserts several causes of action including lease reformation and rescission based upon fraud, and lease reformation based upon mutual mistake. Defendant submits three documents properly before the Court in support of its motion. The first document is an "Agreement to pay outstanding debt," evincing that on March 19, 2007, a non-party to the action, Agramonte, with no patent or discernible affiliation to the plaintiff herein, agreed to pay Curtis, of defendant's company, $40,000, said sum representing arrears owed by non-party, and presumably the prior tenant, Almonte. The second document is a letter from the SLA, wherein plaintiff, on June 11, 2008, was apprised that its application for a liquor license had been denied on grounds that on June 13, 2007, the license for the premises herein had been revoked and a prescription barring the issuance for the same, for a period fo two years, had been issued. The third document submitted by defendant is a rider to the lease executed herein. Said rider made obtaining of any licenses, plaintiff's responsibility.

Defendant argues that the documents submitted evince that the parties herein initially agreed to enter into the lease herein on March 19, 2007, months prior to the SLA's decision to revoke the license for the premises herein and months prior to SLA decision to issue a two year prescription. Thus, defendant contends that it could not have withheld information regarding the licence revocation or prescription at the time the parties entered into an agreement insofar as at that time the SLA had not taken any action. Insofar as the "Agreement to pay outstanding debt," fails to establish that the agreement evinced therein involved the plaintiff herein, defendant's motion fails because even if this document evinces that the agreement herein was struck prior to the SLA issuing the prescription, said document fails to establish that plaintiff was part of the agreement. As such the very document relied upon by defendant fails to establish its defense. Moreover, the crux of plaintiff's claim is the lease executed in October 2007, months after the prescription herein was issued by SLA. None of the admissible documentary evidence submitted by defendant conclusively establishes that it had no knowledge of the prescription prior to the execution of the lease and as such defendant fails to negate any fraud in connection with the execution of the lease in October 2007. Lastly defendant's motion must be denied insofar as it never addresses and thus the documents submitted never negate, plaintiff's cause of action for reformation on grounds of mutual mistake. [*13]Thus, defendant's cross-motion to dismiss is hereby denied.

Defendant's cross-motion seeking to change the venue of the within action to Nassau County is hereby denied.

Article 5 of the CPLR fixes the venue of certain actions based on a host of different factors, such as the type of action, the residence of the parties or the status of the party being sued. CPLR §503 prescribes venue in transitory actions based on the residence of the respective parties and in the case of corporations, where the same have a principal office. CPLR §507 prescribes the proper venue in cases involving real property actions, mandating that proper venue is the location of the property at issue. CPLR §510(1) provides for a change of venue, as a matter of right, when the county designated is improper. A defendant seeking to challenge the chosen venue on grounds that said venue is improper must first comply with the requisites of CPLR §511, which requires that a demand to change venue be interposed with or prior to the service of an answer and that a motion for a venue change be made within fifteen days thereafter. The time period prescribed by CPLR §511 is not merely directory but requires strict compliance. Failure to comply with the mandates of CPLR §511, particular the timing requirements, mandates denial of a defendant's motion to change venue, when the same seeks such relief pursuant to CPLR §510(1). Venue changes pursuant to CPLR §§510(2) and (3), unlike venue changes pursuant to CPLR §510(1), are not changes granted as a matter of right. Instead such venue changes are left to the sound discretion of the Court. Such venue changes do not require that defendant serve a demand to change venue pursuant to CPLR §511 and can be made within a reasonable time after the action is commenced. On a motion to change venue pursuant to CPLR §510(3), where it is alleged that the convenience of the witnesses would best be served by the change, a party must satisfy several factors. First, the moving party must provide the names, addresses, and occupations of all prospective witnesses. Second, the facts about which said witnesses will testify must be disclosed so the court can ascertain whether said witnesses are material and necessary. Third, it must be demonstrated that the witnesses are willing to testify. Lastly, it must be shown how the witnesses would be inconvenienced absent the change in venue. A failure to meet the requirements outlined warrants denial of the motion to change venue. When a defendant fails to comply with CPLR §511 and makes no showing requiring a venue change under CPLR §§510(2) or 510(3), a change in venue may nevertheless be granted, and such action is entirely within the court's discretion. Such discretion however, should be used sparingly and has usually been exercised when the venue chosen has no nexus to the action.

In this action contrary to plaintiff's assertion, insofar as the instant cause of action involves real property, venue is governed by CPLR §507. Thus, insofar as the instant action is venued in Bronx County, on grounds that the plaintiff has its principal place of business therein, the venue chosen is improper. However, insofar as defendant never tendered a demand to change venue as mandated CPLR §511, it has forfeited its right to a venue change pursuant to CPLR §510(1). Accordingly, defendant is only entitled to a discretionary venue change pursuant to CPLR §§510(2) or (3). Insofar as plaintiff's affidavit fails to detail, iinter alia, the names and addresses of all witnesses, as well as the substance of their testimony, plaintiff's application seeking a discretionary venue change pursuant to CPLR §510(3), on grounds that such a change will be most convenient tor all witnesses, is hereby denied. Defendant does not argue that a venue change is warranted on any other ground, such as that promulgated by CPLR §510(2), the interests of justice, or for any of the non-statutory reasons. Even if defendant had made such argument, insofar as the case herein is [*14]venued based upon the corporate plaintiff's principal office, a fact defendant does not contest, defendant fails to establish that the action has no nexus to Bronx County so as to warrant a venue change pursuant to the non-statutory reasons. As such, the instant motion, seeking to have the venue of the within action changed, is hereby denied.

Plaintiff's motion seeking a preliminary injunction, primarily for purposes of staying the non-payment summary proceeding in District Court, Nassau County, is hereby denied.

A preliminary injunction is an extraordinary provisional remedy and plaintiff is only entitled to the same upon a special showing. This is because in granting plaintiff a preliminary inunction, a defendant's interests are substantially limited, in the absence of resolution of the pending action on the merits. A preliminary injunction can only be granted when the party seeking such relief demonstrates all of the following: (1) a likelihood of ultimate success on the merits; (2) irreparable injury if the preliminary injunction is withheld; and (3) a balance of equities tipping in the moving party's favor. Notwithstanding the foregoing, when a preliminary injunction is sought for purposes of staying or enjoining the prosecution of a related summary proceeding, the inquiry is wholly different. It is well settled that, insofar as lower courts have the ability to consider any and all equitable defenses, a court of equity will not stay a summary proceeding pending the outcome of a summary proceeding unless the equitable relief sought is unavailable as a defense in the summary proceeding. What this in fact means is that if the equitable relief sought in the plenary action can be pled as a defense in the summary proceeding the court shall not stay the summary proceeding because said defenses can in fact be considered in the summary proceeding.

In the case, the relief sought is a preliminary injunction enjoining the defendant and indeed the District Court from prosecuting the summary proceeding pending in District Court, Nassau County. Plaintiff asserts that insofar as it seeks equitable relief, namely lease rescission and reformation, it cannot obtain said relief in the summary proceeding and as such was forced to bring the instant action. In light of the instant action, plaintiff asserts that pending the resolution of the same, this Court should enjoin the prosecution of the summary proceeding. Plaintiff's argument lacks merit. Insofar as plaintiff seeks to stay a summary proceeding pending the outcome of the instant plenary action seeking equitable relief, whether it is entitled to such an injunctions is governed by the exception to the rule discussed above. Ironically, plaintiff is aware of the exception, cites to it, and nevertheless thinks that despite the same he is entitled to an injunction. To be clear, the inquiry is whether the equitable relief sought herein can be interposed as a defense in the summary proceeding. Insofar as Real Property Law §743 and the case law evince that a court presiding over a summary proceeding has jurisdiction to hear any and all equitable defenses, the inquiry must be decided against plaintiff. The very same causes of action asserted herein, namely reformation and rescission, can be asserted as defenses in the summary proceeding and as such, plaintiff's motion seeking a preliminary injunction is hereby denied.

Plaintiff's motion seeking to join the action herein with the summary proceeding pending in District Court, Nassau County is also denied.

CPLR §602(a), gives the Court the discretion to consolidate and jointly try actions involving common questions of fact or law. Consolidation is preferred if it eases the decision making process in a case or if it serves judicial economy. Consolidation is also appropriate when the consolidation will "avoid unnecessary duplication of trials, save unnecessary costs and expense and prevent divergent decisions based on the same facts." [*15]

In this case, while the Court acknowledges that the within action and summary proceeding do in fact involve common questions of law and fact, joinder is nevertheless inappropriate since it will hinder the prosecution of the summary proceeding, relief which this Court has already denied. Thus, plaintiff's motion seeking to join the instant action with the summary proceeding is hereby denied.

It is hereby

ORDERED that plaintiff serve a copy of this Order with Notice of Entry upon all parties within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Dated : January 13, 2009

Bronx, New York

______________________________ Nelson S. Roman, J.S.C.