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
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SUPREME COURT - STATE OF NEW YORK
HON. VITO M. DESTEFANO,
TRIAL/IAS , PART 15
PM & JP CAR WASH, LLC,
Decision and Order
March 21, 2012
INDEX NO. 000493-
NU FINISH CAR WASH, LTD., JOSEPH
CAPPARELLI, NICHOLAS CAPPARELLI,
MARGARET CAPPARELLI and CAPPARELLI
The following papers and the attachments and exhibits thereto have been read on this
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
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
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.
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
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
2 At the same time the Contract was executed , the Plaintiff also entered into a lease with
; Ex. " K" to Motion at
Capparelli Properties , Ltd. (Ex. "
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
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).
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.
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
not granted , and a balancing of equities in favor of the moving pary
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
A part moving
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).
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
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
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
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
82 AD3d 804 (2d Dept 2011);
BGW Development Corp.
Capital Records 137 AD2d 50 , 54 (1
st Dept 2012) (plaintiff may not
GSRE IL Ltd. 92 AD3d 535 (1
Wells Fargo Bank
seek declaratory relief when other remedies are available , such as a breach of contract action);
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'''
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);
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.
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)).
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
event that mayor may not come to pass (New York Public Interest Research Group,
Long Island Lighting Co. 71 NY2d 349 (1988);
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
Based on the foregoing, it is hereby ordered that the Plaintiff s motion is denied in its
This constitutes the decision and order of the cour.
Dated: April 3 ,
Hon. Vito M. DeStefano, J.
APR 0 6 2012
COUNTY CLeRK' S GFFtCE