PM & JP Car Wash, LLC v NU Finish Car Wash, Ltd.
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PM & JP Car Wash, LLC v NU Finish Car Wash, Ltd. 2012 NY Slip Op 30960(U) April 3, 2012 Supreme Court, Nassau County Docket Number: 000493-12 Judge: Vito M. DeStefano 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. )" -. [* 1] SUPREME COURT - STATE OF NEW YORK Present: HON. VITO M. DESTEFANO, Justice TRIAL/IAS , PART 15 NASSAU COUNTY PM & JP CAR WASH, LLC, Decision and Order Plaintiff, -against- MOTION SUBMITTED: March 21, 2012 MOTION SEQUENCE:Ol INDEX NO. 000493- NU FINISH CAR WASH, LTD., JOSEPH CAPPARELLI, NICHOLAS CAPPARELLI, MARGARET CAPPARELLI and CAPPARELLI PROPERTIES, LTD., Defendants. The following papers and the attachments and exhibits thereto have been read on this motion: Notice of Motion Affidavit in Opposition In this action for breach of contract , etc. , the Plaintiff, PM & JP Car Wash, LLC, moves pursuant to CPLR 6301 for a preliminar injunction: 1) enjoining and prohibiting inter alia, Defendants " from taking actions to enforce the terms of the Note. . . until (I) the Defendants cure their material misrepresentation set forth in the Contract , and (ii) a determination is made calculating Plaintiffs damages arising from Defendants ' breach ofthe Contract" ; and 2) enjoining and prohibiting Defendant Capparelli Properties , Ltd. ("owner/landlord" from taking any actions to terminate the Lease and/or declare Plaintiff in default of the Lease " based on the Plaintiffs failure to make payments under the note until the Defendants cure their material misrepresentations and a determination is made as to Plaintiffs damages arising from Defendants ' breach of contract. The Plaintiff also seeks: a declaration " that Defendants are in default" of a contract of sale entered into between the Plaintiff and Defendant Nu Finish Car [* 2] Wash , LLC ("Nu Finish" ) and " ordering that the Defendants specifically perform their obligations under the Contract and obtain all permits , approvals and licenses to operate the Plaintiffs business at the premises ; a " ruling " that the notice of default served by the Defendants based upon the Plaintiffs failure to make payments under the promissory note securing the Contract is improper under the terms ofthe Contract and Note and a nullty. Discussion The Plaintiff is the owner and operator of Miami Car Wash located in East Meadow, New York. The Plaintiff purchased the business from Nu Finish on Februar 2 , 2007 for a total price 2 The Plaintiff paid half of the purchase price in , 10). of$3. 2 milion dollars (Ex. " K" at cash and executed a promissory note in favor ofNu Finish for the balance (Ex. " c" to Plaintiffs Motion). Pursuant to the Contract of Sale (" Contract" ), Nu Finish made certain representations and waranties , including that: (Nu Finish) is in compliance with all Federal , State and Municipal laws , rules and regulations; that (Nu Finish) has all permits and licenses required by all governental agencies in order to operate a business of the tye which is currently being operated by (Nu Finish) and that it has received no violation or notice of violation with regard to any of the same. (Nu Finish) has operated the Business in accordance with all laws , ordinances and rules applicable to the Business. The Certificate of Occupancy and or equivalents, authorize the use of the Premises as a carash. (Nu Finish) represents that to the best of its knowledge there are no additional licenses and/or permits required to use the Premises as it is currently used by (Nu Finish). (Nu Finish) has all permits , licenses , orders , franchises and approvals of all Federal , state or local regulatory bodies required for it to car on its Business as curently conducted; all such permits , licenses , orders, franchises and approvals I Defendants Joseph Capparell , Nicholas Capparell , and Margaret Capparell were principals ofNu Finish. Defendant Capparell Properties , Ltd. is the owner/landlord of the propert upon which the car wash is located. Members of the Capparell family are shareholders of both Caparelli Properties and Nu Finish (Affidavit in Opposition at 7). 2 At the same time the Contract was executed , the Plaintiff also entered into a lease with 9). ; Ex. " K" to Motion at Capparelli Properties , Ltd. (Ex. " [* 3] are in full force and effect , and no suspension or cancellation of any of them is threatened; and (Nu Finish) is in compliance in all material respects with all requirements , standards and procedures of all Federal , state or local regulatory bodies which issued such permits , licenses , orders , franchises and approvals (Ex. A" at ~~ 10 , 20(E), (I) and (0)). The above representations survive the closing for the statute of limitations period (Ex. A" at ~ 20(Q)). In the event of default, the Contract provided: In the event of any wilful , capricious or other inexcusable default hereunder on par of the Seller , Buyer shall be entitled to specific performance of this Agreement together with any equitable relief to maintain status quo pending resolution of such litigation without posting any bond or other security. Furthermore , if the representations of Seller in this Agreement , including, but not limited to, as set forth in Paragraph 20, are mistaken , fraudulent , reckless , or in any maner incorrect Buyer s damages shall include the cost of any claims, judgments , encumbrances liens and court costs , attorneys fees and incidental expenses related to Buyer s ability s obligations under Paragraph 20 and related paragraphs of this Agreement (Ex. " A" at ~ 16). to satisfy Seller After the Contract was executed , the Plaintiff was issued violations by the Town of Hempstead with respect to inter alia signage and the detail center of the car wash (Exs. " 3 The violations were 0" and " K" to Motion at ~~ 16 , 17). purortedly in existence at the time of closing. 2011 the Plaintiff began to withhold the monthly note payment pending the Seller s resolution of the misrepresentations under the Contract" (Ex. "H" to Motion). On December 12 2011 , Nu Finish notified the Plaintiff that it was in default (Ex. "I" to Motion) (" default notice ). The default notice stated in relevant par: As of November Please be advised that under the terms of a certain promissory note signed Februar 2007 , between PM & JP Car Wash LLC (Maker), and Nu Finish Car Wash (As sl of each month. Holder), installment payments of $12 404. 78 are due on the 1 3 The violations were for the following: tent being used for car detailing, illegal signage , ilegal interior alteration , ilegal game room , outside storage vacuum , and construction and enclosure for the vacuum (Exs. " E" and " 0" to Motion). [* 4] Please allow this to serve as written notice of the following PM & JP Car Wash LLC has failed to make a payment on November 1 2011 PM & JP Car Wash LLC has failed to make a payment on December 1 , 2011 In the event the monthly payments noted above are not received by Nu Finish Car Wash within TEN (10) days after this notice , the maker PM & JP Car Wash LLC wil be in default ofthe above referenced note (Ex. " I" to Motion). On December 19 2011 , the Plaintiff rejected Nu Fault's default notice on the ground that Nu Finish was in default of the Contract for " failing to obtain and maintain all required permits, licenses , certificates and approvals to operate the car wash Business " (Ex. " J" to Motion). In rejecting the " default notice , the Plaintiff also demanded that Nu Finish cure and remove the violations on the Business to ensure that the Plaintiff "may operate the Business as provided in the Contract" (Ex. " J" to Motion). On Januar 13 , 2012 , a preliminar injunction the Plaintiff made the instant motion seeking declaratory relief and pursuant to CPLR 6301. The Court' Determination For the reasons that follow , the Plaintiffs motion is denied. for a preliminar injunction must demonstrate by clear and convincing evidence , a likelihood of ultimate success on the merits, irreparable injur if the injunction were (Family-Friendly Media, not granted , and a balancing of equities in favor of the moving pary Inc. Recorder Television Network 74 AD3d 738 (2d Dept 2010)). An injunction is a provisional remedy to maintain the status quo until a full hearing can be held on the merits. As such , the decision whether to grant or deny a preliminar injunction is within the sound 68 AD3d 942 (2d Dept Beech 140, LLC, (Id. ; Masjid Usman, Inc. discretion of the court 2009)). A part moving showing prima facie In support of its application , the Plaintiff argues that it has made a for relief with respect to each of the causes of action asserted in the complaint and that a balance of the equities "tips " in its favor. In addition , the Plaintiff argues that it " is facing the imminent 4 The causes of action asserted in the complaint are breach of contract , declaratory judgment fraudulent inducement, stay of enforcement of the note , and specific performance (Ex. " K" to Motion). [* 5] loss of its Business " and that (s )uch har cannot be adequately remedied by a future award of monetar damages " (Affirmation in Support at ~ 28). Contrar to the Plaintiff s contentions , a preliminar injunction is not waranted where , as here , a breach of contract claim which may be adequately compensated by monetar damages (no Recorder Television Network 74 AD3d at 740 supra (Family- Friendly Media, Inc. irreparable harm if the movant can be compensated with money damages); Dinner Club Corp. Hamlet on Olde Oyster Bay Homeowners Ass ' , Inc. 21 AD3d 777 (2d Dept 2005)). Moreover the Plaintiff has failed to adduce sufficient evidence in support of its claim that the loss of " its Business " is imminent. To the contrar, the motion papers refer to the loss of Business as pertains to the detail center and not the actual car wash itself (Affidavit in Support at ~ 13 (" have been advised that the Town of Hempstead wil have to shut down pars of the Business, including the detail center , if the violations are not immediately resolved" )). Additionally, the loss of business ' , at this juncture , is speculative , as the car detail center is stil operating, despite at 739 (irreparable harm must be imminent , not remote or the existence ofthe violations (Id. speculative)). It is noted that the possibility that the owner/landlord may terminate the lease , without more , does not warant a preliminar injunction. There is no evidence before the cour that the owner/landlord seeks to terminate the lease or has expressed , in words or actions , a desire to terminate the lease. In fact , Nicolas Capparell , the Propert Manager for the owner/landlord stated in his affidavit that " Capparelli Properties has NO INTENTIONS of taking any action to terminate the lease , on any grounds. Plaintiff has not been served with any notices , nor are there any notices anticipated" (Affidavit in Opposition at ~ 51) (emphasis in original). With respect to the Plaintiffs request for an order " (d)ec1arng that Defendants are in default" ofthe Contract and " (r)uling " that the default notice is " improper" under the terms of the Contract" , the Supreme Court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the paries to a justiciable controversy whether or not furter relief is or could be claimed (CPLR 3001). The branch of Plaintiffs motion seeking an order declaring the Defendants to be in default of the Contract , in effect seeking summar judgment on its declaratory judgment claim is denied given that the Plaintiff has an adequate alternative remedy in an action for breach of Erlbaum 59 NY2d 143 , 148 (1983) (cour may exercise its discretion in (Morgenthau contract Alizio not affording declaratory relief when other remedies are available and adequate); Mount Kisco Lodge No. 1552 of the Benevolent and Protective Order of Elks of the United States of America 247 AD2d 565 (2d Dept 1998) (W cause of action for a declaratory judgment is unnecessar and inappropriate when the plaintiff has an adequate , alternative remedy in another form of action Feldman 82 AD3d 804 (2d Dept 2011); BGW Development Corp. [* 6] Capital Records 137 AD2d 50 , 54 (1 st Dept 2012) (plaintiff may not GSRE IL Ltd. 92 AD3d 535 (1 Wells Fargo Bank Dept 1988); seek declaratory relief when other remedies are available , such as a breach of contract action); Main City of Niagara Falls 64 AD3d 1142 (4 Dept 2009); Niagara Falls Water Board Evaluations, Inc. State 296 AD2d 852 (4 Dept 2002) (cause of action seeking a declaration that defendant breached the contract was dismissed as unnecessar and inappropriate where the plaintiff had an adequate alternative remedy in an action for breach of contract)). such as breach of contract''' , quoting Apple Records In addition , the Plaintiffs request for a "ruling " that the December 12 2011 default notice was improper , does not constitute a justiciable or actual controversy, and, accordingly, the MADAD, LLC 74 AD3d 1007 (2d Dept 2010); (Chanos court declines to make such a ruling (cours may not City of New York 275 AD2d at 464 supra United Water New Rochelle, Inc. issue advisory opinions which can have no immediate effect); Underwriters Insurance Co. Long Island Lighting Co. Allanz 35 AD3d 253 (pt Dept 2006); Siegel , McKinney s Practice Commentaries , CPLR C300 1:3 (declaratory judgment requires an actual controversy and may not be used as a vehicle for an advisory opinion)). A ' 'justiciable controversy " involves " a real dispute between adverse paries , involving substantial legal interests for which a declaration of MADAD, LLC 74 AD3d 1007 (2d Dept 2010)). (Chanos rights wil have some practical effect" The cour wil not , under the circumstaces , presented " entertain a declaratory judgment action when any decree (it) might issue wil become effective only upon the occurrence of a future Carey, 42 event that mayor may not come to pass (New York Public Interest Research Group, United Water Long Island Lighting Co. 71 NY2d 349 (1988); Cuomo NY2d 527 531 (1977); City of New York 275 AD2d 464 (2dDept 2000) (declaratory relief New Rochelle, Inc. improper where case presented hypothetical issues concerning futue events which mayor may not occur)). Based on the foregoing, it is hereby ordered that the Plaintiff s motion is denied in its entirety . This constitutes the decision and order of the cour. Dated: April 3 , 2012 Hon. Vito M. DeStefano, J. ENTERED APR 0 6 2012 NASSAU COUNTY COUNTY CLeRK' S GFFtCE
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