100 Wooster Store Corp. v Wooster 100 Realty LTD
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100 Wooster Store Corp. v Wooster 100 Realty LTD 2012 NY Slip Op 30334(U) February 1, 2012 Supreme Court, New York County Docket Number: 111692/10 Judge: Joan M. Kenney Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 211012012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY JOAN M. KENNEY . . . PRESENT: " PART A Justlce s - Index Number : I 1 169Z2010 100 WOOSTER STORE vs. WOOSTER 100 REALTY SEQUENCE NUMBER : 001 INDEXNO. / // WV/o MOTION DATE 1y?j/L 00 I MOTION 8m. NO. SUMMARY JUDGMENT - 32, h a d on thlr motlon to warn Notlcs of MotlonlOrder to Show Cauls - AMdrvlG - Exhlbltw An8wrring AMdavlb - Exhlbltm f The following papsn, numbered 1 to RsplylngAffldavlG -$ M U ? ,4 /-& Y Upon the foregolng papers, It Is ordered that thlo motlon in MOTIQN IS DECIDED IN ACCORDANCE WTH THE ATTACHED MEMORANDUM DEClSlON s J.S.C. J W M. KENNEY 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ........................... MOTION IS: ................................................ J.S.C. 0 NON-FINAL DISPOSITION CASE DISPOSED Y GRANTED 0SETTLE ORDER oDO NOT POST DENIED 0QRANTED IN PART OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 8 - - - - - - 1 - - - - - - - _ - - - - - - - - - - - - - - - - - - - - - -X 100 WOOSTER STORE CORP., Plaintiff, DE ISION & ORDER Index N c F -againstWOOSTER 100 REALTY LTD., 11r2EOD FEB 10 2012 Defendant. -X - - - - - - - - - - - - - _ I - - - - - - - - - - - - - - - - - - - - - NEW YORK COUNfY CLERK SOFFICE Defendant moves, pursuant to CPLR 3212, 3211 (a) (2) and (a) JOAN M. KENNEY, J. : (10), for summary judgment dismissing the complaint and ordering plaintiff to obtain Co-op Board approval f o r the proposed work to the W A C system in the rear of the building that is the subject of this litigation (Building) . Plaintiff cross-moves, pursuant to CPLR 3212, f o r summary judgment: (1) on its firat cause of action declaring that it is entitled to continue to maintain the rear yard of the Building and the condensers used to air condition defendant s premises; (2) declaring that defendant s use of the back yard of the Building as ripened into an appurtenance; (3) declaring that defendant is allowed to reconfigure the condensers located in the back yard of the Building in accordance with the plans provided to the Co-op; (4) declaring that the Co-op Board s approval 1s not required in order for defendant to reconfigure the condenser; (5) declaring that, if Co-op Board approval is necessary, that either the court mandate Co-op Board approval or declare that PJ Casey (Casey),the Co-op s co-president, can approve the plans; and (6) on its second cause of action, issuing an injunction compelling the Co-op Board [* 3] to allow defendant to reconfigure or replace the condensers as provided in the plan and connect them to the defendant's air conditioning units as provided in the plan. FACTUAL BACKQROUND This declaratory judgment action was commenced by plaintiff, defendant's commercial tenant, seeking a declaration that it is entitled to permit its subtenant, SJB Retail d/b/a Yellow Corner (Yellow) to install three air condensers with support structures upon common property located in the rear yard of the Building, thereby pefmitting plaintiff to make necessary improvements which affect utility services, plumbing and electric linea in and to the Building and areas outside of the interior of the leamd premises. Defendant asserts that the Board of Directors (Board) has not taken any formal action to deny plaintiff's submitted plans and, therefore, defendant contends that the matter is not justiciable since plaintiff has not suffered any injury in fact and any alleged injury is speculative and abstract, contingent upon events which may not come to pass. Defendant is the owner of the Building, and the ground level store and basement were leased to plaintiff for a term of 25 years on February 15, 1982. By court order, dated April 17, 2 0 0 9 , it was determined that plaintiff validly exercised its option to renew this lease for a period ending on March 31, 2017. In the spring of 2010, Susan Inglett (Inglett) was presented, 2 [* 4] in her official capacity as co-president of the Board, with a set of building plans from plaintiff, which identified improvements that Yellow wished to make and which Casey, plaintiff s owner, wished to have approved. These improvements were to be made to the common areas of the Building, not part of the leased premises. According to Inglett s affidavit, she informed Casey that she could n o t unilaterally approve the plans, Inglett averred that she told Casey that any approval would have to await a meeting of the Board. In reviewing the plans, Inglett felt that the improvements would affect Building services that were not part of the leased premises, which would require written Board approval. According to section 3 of t h e lease, since Board approval was required, plaintiff had to submit, among other things, documents and approvals by government agencies before the Board could comider the plan. Motion, Ex, D. Specifically, section 3 of the leaae states, in pertinent part: Tenant shall make changes in or to the demised premises of any nature without Owner s prior written consent. Subject to the provisions of this article, Tenant at Tenant s expense, may make alterations, installations, additions or improvements which are non-structural and which do not affect utility services or plumbing and electrical lines, in or to the interior of the demised premiges by using contractors or mechanics first approved by Owner. Tenant shall, before making any alterations, additions, installations or improvements, at its expense, obtain all permits, approvals and certificates required by any governmental or quasi-governmentalbodies and (upon completion) certificates of final approval thereof and shall deliver duplicates . . . to Owner . . . * 3 [* 5] Paragraph 6 of the rules and regulations attached to the lease specify that no tenant could mark, paint, drill into, or in any way deface any part of the demised premises or the Building and that no boring, cutting or stringing of wires is permitted without the prior written consent of the Board. Motion, Ex. D. Defendants state that, to date, the Board has not made a final vote or determination, nor has it issued a written denial or Further, defendant avers that, to approval, of plaintiff's plan. date, the Board has not received any permits, approvals or certificates issued by any governmental or quasi-governmentalboard or agency regarding the proposed plans, as required by the lease. Hence, claims defendant, the Board has yet to receive a full application for the work for Board consideration from plaintiff. In addition to the foregoing, defendant says that it haa not stopped or interfered with Yellow's attempts to install, amend or alter the HVAC system in the rear yard, nor has Yellow attempted such work. In opposition to defendant's motion and in support of its cross motion, plaintiff states that an air conditioning system with condensers located in the Building's rear yard have been in place since 1992 and that, on December 29, 2009, in settlement of thenexisting litigation, defendant issued an estoppel certificate to plaintiff, which stated that it was in full compliance with all of the terms, conditions and covenants of the lease. 4 Cross Motion, [* 6] Ex. 6. Plaintiff certificate, it has the right to maintain air conditioning condensers in the Bui ding's rear yard. When Yellow proposed to replace the air conditioning system in the store, its plans called f o r the addition of a third condenser and to replace one of the pre-existing condensers that had been removed by a prior sublessee. Prior to any work being done, Casey the application for the plans to be presented to the New York City However, according to Casey, Inglett refused to approve the portion the W A C system. Allegedly, Inglett told Caaey that she and John Delapa (Delapa), the third member of the three-member Board, would not approve the W A C plans. Plaintiff argues that this constitutes paragraph 32 of the verified answer in which defendant states: "admits that Co-op refuwd to approve the installation, alteration, replacement, construction, work, and/or tampering with any and a11 condenser, electric, plumbing, the building structure, and those structures appurtenant thereto, that was sought by plaintiff or plaintiff's subtenant." lease, it is allowed to make non-structural changes without the Co5 [* 7] op's consent. This contention is based on the above-quoted lease provision. Plaintiff avers that, based on this lease, it has the right to make the proposed alterations without prior written Board approval. In addition, plaintiff provides a copy of a letter sent to it by Margaret Baisley (Baisley),the attorney for the Co-op, in which she stated, among other things : "You are hereby notified that the Board of Directors has not approved any application to place air conditioning units in the Landlord's common area. You are required to remove all air conditioning equipment from the Landlord'B premises forthwith." Cross Motion, Ex. 9. According to plaintiff, this letter indicates Board rejection Of the application, thereby making the dispute ripe for determination. Moreover, plaintiff asserts that Inglett's statement that the Board would not approve the application i a binding on the Board, since she made the statement in her capacity as co-president. In sum and substance, plaintiff's arguments are fourfold: 1. Defendant'a legal arguments are without merit, because the judicial precedent upon which it reliea concerns declaratory judgments being sought for future events, whereas, in the case at bar, by Inglett's statement the Board has already acted; 2. By the terms of the lease, the proposed work does not 6 [* 8] 7 [* 9] the deposition was demanded simply to delay plaintiff s time in which to file opposition. DISCUSSION The proponent of a s u m m a r y judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of from fact omitted] 2006). ,,I the case [internal quotation marks and citation Santiago v F i l s t e i n , 3 5 AD3d 184, 185-186 (lBt Dept The burden then shifts to the motion s opponent to present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact. Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 ( l aDept 2006); see Zuckerman v City of New York, 49 t NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978). CPLR 3211 (a) Motion to dismiss cause of action, states , that: \ [a] party may move for judgment dismissing ,oneor more causes of action aaserted against him on the ground that: * * * ( 2 ) the c o u r t has not jurisdiction of the subject matter of the cause of action; or * * * (10) the court should not proceed in the absence of a person who should be a party; . . . . I , To defeat a pre-answer motion to dismiss pursuant to CPLR 3211, the opposing party need only asaert facts of an evidentiary 8 [* 10] nature which fit within any cognizable legal theory. Bonnie Fashions v Bankers Trust Co., 262 AD2d 188 & Co. (lat Dept 1999). Further, the movant has the burden of demonstrating that, based upon the four corners of the complaint liberally construed in favor of the plaintiff, the pleading states no legally cognizable cause of action. Guggenheimer v Ginzburg, 4 3 NY2d 268 ( 1 9 7 7 ) ; Salles V Chase Manhattan Bank, 300 AD2d 226 ( l aDept 2002). t Defendant's motion is granted and the action is dismissed as not ripe for determination. "The 'justiciable controveray' upon which a declaratory judgment may be rendered requires not only that the plaintiffs in such an action have an interest sufficient to constitute standing to maintain the action b u t also that the controversy involve present, rather than hypothetical, contingent or remote, prejudice to plaintiffs. . . . [T]he controversies involved in the preaent action are not ripe for determination . . . . * * * The action is premature and as a matter of law may n o t be maintained if the issue presented f o r adjudication involves a future event beyond the control of the parties which may never occur." American Insurance Association v Chu, 64 NY2d 379, 383, 385 (1985); Flomenbaum v New York University, 71 AD3d 8 0 (lst Dept 2 0 0 9 ) a f f d 14 NY3d 901 (2010); Waterways Development Corp. v Lavalle, 2 8 AD3d 539 (2d Dept 2006). In the case at bar, section 3 of the lease requires Board approval for any alteration that would affect the utility Services and/or plumbing to the Building, and must provide appropriate governmental permits to the Board prior to beginning any such work. 9 [* 11] determination thereon). The court is unpersuaded by plaintiff's argument that Inglett'a statement that the Board would not approve the p l a n a is 10 [* 12] sufficient to indicate Board action. The individual action of the co-president is ineffectual to bind the Board absent actual ratification. See Spanos v Boschen, 61 AD2d 8 3 7 (2d Dept 1978). Further, the primary case cited by plaintiff is distinguishable, involving entering into contracts on behalf of the Board (Goldston v Bandwidth Technology C o r p . , actions 5 2 AD3d 360 specifically requiring Board [l t Dept 2 0 0 8 1 ) , approval. Acts not done informally by a member of the Board do not constitute Board action. Douglas Development Corp. v CariIlo, 64 NYS2d 747 (Sup Ct, Kings County 1946). The court also notes that neither party has provided any affidavit from Delapa who, as the third member of the Board, has the deciding vote on this issue. Similarly, plaintiff miachasacterizes the letter aent by Baisley. In that letter, the pertinent portion quoted above, she does not say that the Board did not approve the plan, she simply statea that no plan has been approved (or denied) by the Board, which is totally different from saying that a plan waa denied, indicating, rather, a lack of action. Since plaintiff has not demonstrated a present injury, but only alleges contingent events, plaintiff has not met ita burden of showing immediate prejudice or injury so as to warrant granting a declaratory judgment. York S t a t e Troopers, Police Benevolent Association of t h e New Inc. v New York S t a t e Divlaion of S t a t e 11 [* 13] Dated: February 1, 2012 FILED NEW YORK COUNW CLERKS OFFICE 12
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