Liss v Sage Sys., Inc.

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Liss v Sage Sys., Inc. 2009 NY Slip Op 33479(U) February 10, 2009 Supreme Court, New York County Docket Number: Index No. 100205/2006 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 650745/2010 FILED: NEW YORK COUNTY CLERK 08/29/2019 05:52 PM NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/29/2019 NEW [FILED: COUNTY CLERK !FILED: NEW YORK YORK COUNTY CLERK 06/27/20101 06/27/20101 NYSCEF NYSCEF DQC. DOC. NO. NO. ... INDEX NO. 650745/2010 INDEX NO. 650745/2010 1-2 1-2 NYSCEF: RECEIVED NYSCEF: 06/27/2010 RECEIVED 06/27/2010 SUPREME COURT OF OF THE THE STATE STATE SUPREME COURT - NEW dF NEW NEW YORK RK COUNTY COUNTY d~ YORK -uJEW RK V-- DEBRA A. DEBRA A. JAMES JAMES PRESENT: PRESENT: Justice Justice index No.: No.: Index ROBERT LISS, ROBERT LISS, 100205/2006 100205/2006 Date: Motion Motion Date: Plaintiff, Plaintiff, 07/29/08 07/29/08 Seq. No.: No.: Motion Seq. Motion _ y _ -v- 001 001 Motion Cal. Cal. No.: No.: _ _ __ Motion S.YST~MS, INC. SYSTEMS, INC., , SAGE SAGE f:>ART 59 PART 59 '\ - Defendant. Defendant . The 1 to 4 were read on this motion numbered papers, following the complaint that seeks dissolution and appointment dismissirig for summary of a receiver. jud PAP I1 vJ •. §; z 0 ~; UJ Affidavits Exhibits Answering Affidavits -- Exhibits Answering Affidavits Replying Affidavits Replying Cross-Motion: Cross-Motion: O D Yes Yes l'8J =-z C ..J -UJ tu ..J W1a:: et: ~o u. 2 6:V -1/ N~' " ' ....~$'iN ~~ /3 3 4 fJ<e, t~ 4.0~_fl;,fj . ~/I;~~ Upon the foregoing Upon the papers, papers, foregoing ~o (P~~ a::O a: u. ww u. :c "" . -- Exhibits Exhibits (I) C!) lo:- 0 NUMBEREB Notice of of Motion/Order Motion/Order to Show Show Cause Notice to -Affidavits -Exhibits Cause -Affidavits -Exhibits ti) ~0~ '-w..., The The court shall court shall GRANT GRANT the the motion of defendant Sage Systems, Sage motion of defendant Systems, . for Inc for judgment Inc. summary judgment dismissing the complaint pursuant to to the complaint pursuant summary dismissing ..I :> u.. CPLR CPLR 3212. 3212. l- o w 0.. o- ti) s-1· S-L Properties, aa general partnership, owns the shares of general owns the shares of Properties, partnership, ~ 10thth stock allocated to the flOOr stock allocated to the 10 floor unit of aa commercial Commercial unit Of iJ cooperative cooperative building ,~unit") and is ihe tenant under aa under and is the tenant ("Unit") building < ~ 0 for Lease Proprietary Lease for such Unit. such Unit. Proprietary On 17, 1984, the the On F~bruary 17, 1984, February i·- 5 o E == Check One: Check One: E FINAL l'8J DISPOSITION FINAL DISPOSITION ifif appropriate: Check Check appropriate: [* 1] •Ö DO NOT POST DONOTPOST •O NON-FINAL DISPOSITION NON-Fr'NAL DISPOSITION •. REFERENCE [1REFERENCE INDEX NO. 650745/2010 FILED: NEW YORK COUNTY CLERK 08/29/2019 05:52 PM NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/29/2019 ..... _. i ........- and plai'ntiff and defendant entered· into aa written partnership defendant written entered into partnership plaintiff of agreement S-L agre~ment of S-L Properties, which which was was amended amended on on January 1, 1, January Properties, its that the By its terms,. ·~he written agreement provides that toe terms,.the written provides agreement By 1985. 1985. partnership should should 'continue until December 31, 2024, unless until December unless 'continue 2024, 31, partnership hereof." sooner sooner terminat~d terminated pursuant to the·provisions hereof." pursuant the provisions to With With pertinent respect to in respect to dissolution, the agreement provides, in pertinent the agreement dissolution, provides, its business part, that "The· Partnership shall be dissolved and and its·business that "The shall dissolved be Partnership part, wound upon wound up upon the the happening of any of the following events, of of the events, following up any happening law." occur:*** whichever shall first occur;*** (d) when required by law." whichever shall first when required (d) by pertinent York in New York Partnership Law§ states, in pertinent part, part~ Law 63 S 63 states, Partnership New that "The court shall dissolution. that "The court s~·all decree aa dissolution. decree application or On application On by or by for of such for aa partner partner whenever: (( c) A partner has .been guilty of such whenever: .been A partner has c) guilty on of conduct as the tends conduct as tends to affect prejudicially the the carrying on of the to affect carrying prejudicially business," commits business," {d) A A partner partner wilfully or persistently commits aa or (d) persistently wilfully so conducts of the breach of the pa~tnership agreement, or otherwise so conducts otherwise or agreement, partnership breach himself in is that himse~f in matt_ers relating· to ttie partnership business business that is matters to the partnership relating not in business not reasonably practicable to carry on the business in practicable to on the reasonably carry partnership with with him". him". partnership Plaintiff and an -Plaintiff seeks aa dissolution of the partnershi-p and an seeks dissolution of the partnership appointment appointment of of aa receiver receiver based on the claims that that (1) sometime sometime on claims based the (1) in the that year of of in the· year of 2004 and 2005, defendant .sublet 90% of that 2004 and 90% .sublet defendant 2005, consent of of its of the portion the portion of its portion -0f the Unit without the consent of the the Unit without portion cooperative violation of coo.perati ve corporation, and that s·uch sublet_ is in violation of is in and that such sublet corporation, the defendant has and failed .the Proprietary Lease and Rider; and (2)that defendant has failed Lease and (2)that Rider; Proprietary -2-2- [* 2] INDEX NO. 650745/2010 FILED: NEW YORK COUNTY CLERK 08/29/2019 05:52 PM NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/29/2019 ,,. ( ' . .' to with in Code to comply with lighting requirement$ of the NYC NYC Building Code in requirements of the comply Building lighting the of same. the lobby area of the.Unit and refused to correct. same. area the to correct Unit and refused lobby The defendant defense has The defendant has established established aa prima prima facie facie defense it to complaint in entitling it to the the dismissal of the plaintiff's complaint in dismissal of plaintiff's the entitling that neither the that neither the Proprietary Lease nor a~y document referenced document referenced Lease nor Proprietary any that thereunder contains any condition with respect to subletting that thereunder contains condition to with respect subletting any of requires in at requires one or more of the partners ~o remain in occupancy of at one or more of the partners remain to occupancy least 51% the least 51% of the Unit. of Unit. in the statement It argues that the statement in the It argues the that which· the then Letter Letter dated_ February 21, 1984, which is signed only by the then· dated is signed 21, 1984, only by February . . constitute president of the not president of the cooperative corporation, does not constitute does cooperative corporation, "condition" such such "condition". The court concurs with the _defendant. The with court concurs defendant. the which The Letter, which The Letter, constitute forms the does not forms the gravamen of piaintiff' s complaint, does not constitute gravamen of plaintiff's complaint, authorized condition aa condition of subletting because it was not "duly authorized by of because it no.t was by subletting "duly aa resolution of the Directors,. or given in writing by aa majority resolution of the or in given Directors, writing by majority of the the issued of of the Directors or by lessees owning 66 % ~he issued Directors 2/3 % of or lessees 66 2/3 by owning corporation," under provided the shares of shares of the-cooperative -corporation," as provided under the the cooperative as "Subletting" Rider. of Lease "Subletting'~ provisions of the Proprie_tary Lease Rider. provisions the Proprietary The The absence of absence of any board action with respect to this "condition",. action board with this respect to "condition", any though to do board though plaintiff has persisted in inviting the board to do so,. plaintiff persisted in has the so, inviting is further been is further evidence that no such condition has been duly no has evidence that such condition duly authorized or given. authorized or given. -3-3- [* 3] INDEX NO. 650745/2010 FILED: NEW YORK COUNTY CLERK 08/29/2019 05:52 PM NYSCEF DOC. NO. 33 . RECEIVED NYSCEF: 08/29/2019 ., ,. ~...' Moreover, plaintiff has unclean hands with respect to his plaintiff unclean respect to has hands with his Moreover, fordemand the demand for-the· equitable relief of dissolution. equitable relief of dissolution. . Plaintiff Plaintiff at testified an examination 2007 testified at' an beforetrial on August 29, 200? that examination before trial on August that :29, the sublease his the sublease agreements, under which he sublet 90% of his portion of portion under which he sublet 90% agieements, of the are of the Unit, are each for.less than one year in duration, and each and for than less one year in Unit, duration, . that the board does real that the board does "not consider [any·such agreement] aa real "not consider such agreement] [any lease". lease". existence Therefore, eve!'.} assuming arguendo the existence of aa 51% of 5 even arguendo the Therefore, assuming in who the provision in t~e Proprietary Lease, it would be plaintiff, plaintiff,. who it be would Lease, Proprietary provision would be violation of would be persisting persisting• in in placing the the partnership in in violation of placing partnership such Lease provision. s~ch Proprietary Lease provision. Proprietary concession Such is also Such is also aa concession by by since that no his plaintiff that no more than 51% of the Unit is 'sublet, since his more than of the is 51% Unit sublet, plaintiff subleases subleases ~are "are not real". not real", does evidence Nor does plaintiff plaintiff come come forward with any evidence forward with any Nor of of of any prejudice or lack. of reasonable practicability of_ carrying prejudice or lack of reasonable any practicability carrying or out the pose that out ~he partnersh~p's business business·that· the sublets pose or that partnership's the sublets that of local defendant pas pla·ced the Partnership in violation of any local or defendant has violátion or placed the in any Partnership state state building codes, codes. building Accordingly, it is is it Accordingly, INC. for ORDERED that the motion of defendant SAGE S1STEMS, INC. for ORDERED SAGE that the motion of defendant SYSTEMS, matter of is summary judgment dismissing the Complaint, as aa matter of law, is judgment the as law, summary Complaint, dismissing GRANTED; and it is further and it is further GRANTED; in. judgment ORDERED and ADJUDGED that Clerk shall enter judgment in. ORDERED and enter ADJUDGED that Clerk shall the favor of plaintiff DISMISSING the favor of the defendant and against the plai~tiff DISMISSING the and the defendant against disbursements to complaint, and calculating statutory costs and disbursements to and costs and complaint, calculating statutory -4-4- [* 4] INDEX NO. 650745/2010 FILED: NEW YORK COUNTY CLERK 08/29/2019 05:52 PM NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/29/2019 assessed against be be awarded awarded to to defendant SAGE SYSTEMS, INC. INC. and and assessed against defendant SAGE SYSTEMS, plaintiff. plaintiff. court. This is the of the This is the decision and order of the court. decision and order Dated: Dated: February 10, 2009 2009 10, ENTER: ENTER: __ Februarv · . I}-~,? ,d /. lh DEBRAA.JAMES HON. D.EBRA A.. J~M-ES HON. .. -s...: .. [* 5] 4 :I! S-G· J.s.C.

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