Spota v Shure
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Spota v Shure 2012 NY Slip Op 31010(U) April 5, 2012 Sup Ct, Nassau County Docket Number: 8663-11 Judge: Timothy S. Driscoll 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 SHORT FORM ORDER Present: HON. TIMOTHY S. DRISCOLL Justice Supreme Court ------------------------------------------------------------------- x TRIALIIAS PART: 16 NASSAU COUNTY ANTHONY SPOTA Plaintiff Index No: 8663- Motion Seq. No. - against - Submission Date: 3/22/12 ELAINE SHURE, Defendant. ------------------------------------------------------------------ x The following papers have been read on this Order to Show Cause Order to Show Cause, Emergency Affidavit in Support, Emergency Affirmation and Exhibits........................................ ......... Affirmation in Opposition and Exhibits............................................ Affirmation in Reply and Exhibit........................................................ This matter is before the Cour for decision on the Order to Show Cause fied by Plaintiff Anthony Spota (" Plaintiff' ) on January 17 2012 and submitted on March 22 2012. For the reasons set forth below , the Court denies Plaintiffs Order to vacates the temporar restraining order issued by the Cour Show Cause in its entirety and (Sher , 1.) on Januar 17, 2012. BACKGROUND A. Relief Sought Plaintiff moves, pursuant to CPLR 996301 and 6313 , for an Order staying the proceedings in the related action pending in the District Court of Nassau County, New York , Landlord- Tenant Par , titled Unifed Credit Trust Under the Wil of Barnett Shure v. S & S Eatery LLC, L&T Index [* 2] Number 007195- 11 (" District Cour Action ), pending the hearing of this Order to Show Cause. Defendant Elaine Shure (" Shure " On January 17 or " Defendant" ) opposes Plaintiff s application. 2012 , the Court (Sher , J. ) issued a temporar restraining order (" TRO" directing that , pending the hearing of this Order to Show Cause , the proceedings in the District Court Action are stayed. B. The Paries ' History The Verified Complaint (" Complaint" ) (Ex. B to Daw Aff. in Opp. ) alleges that this is an action for breach of agreements , both written and oral , arising out ofthe operation of a delicatessen known as S & S Eatery LLC (" S & S" ), located at 908 Rockaway Avenue , Valley Stream , New York. The omplaint alleges that on July 8 , 2010 , Plaintiff spoke with Wayne Shure (" Wayne son of Defendant , at an antique store located at 904 Rockaway Avenue , Valley Stream , New York. Plaintiff asked Wayne whether he would sell one of the six (6) units in the building where the antique store was located. Wayne advised Plaintiff that Wayne s father , Barett Shure , had passed away and the building was in probate. Wayne also told Plaintiff that Wayne s mother , the Defendant , was interested in opening a business. On July 9 2010 , Plaintiff, Defendant and Wayne discussed opening a restaurant , and Defendant expressed her desire to be a parner in such a business. Defendant agreed to use one of the units in the Building for the new business , S & S. As par of the agreement , Plaintiff suggested to Defendant that they use Unit 908 in the Building which had been empty for at least fifteen (15) years. Plaintiff drew up an agreement dated July 9 , 2010 pursuant to which Plaintiff and Defendant agreed to share equally the start-up expenses and work together in operating S & S Oral Agreement" On July 12 2010 , demolition and renovation (" Renovation ) began at Unit 908 Premises ) to make improvements to which the paries had agreed. To compensate for the increase in the value of the building as a result of the Renovation , Defendant agreed to abate the rent until the start-up costs were recovered , or for up to five years , whichever occurred first. On 1 The Court declines to consider Plaintiff's reply papers in light of the fact that the Order to Show Cause did not authorize the filing of reply papers and Plaintiff did not seek the pennission of this Court to fie a reply. [* 3] July 14 , 2010 , Plaintiff, Defendant and Wayne met with an attorney ("Attorney ) to draft a contract that would memorialize the Oral Agreement. Relying on the Oral Agreement , Plaintiff continued with the Renovation. On August 17 2010 , S & S executed a lease (" Lease ) with Unified Credit Trust Under the Wil of Barett Shure (" Trust" ) for a period of ten (10) years from September 1 , 2010 to August 31 , 2020 , with an option to renew for five (5) years. On that same date , the S & S Operating Agreement (" Operating Agreement" ) was signed. The Attorney prepared the Lease and Operating Agreement. After reviewing the Lease and Operating Agreement , Plaintiff realized that none of the agreed-upon provisions were embodied in the Operating Agreement. Plaintiff alleges that the Attorney later advised him that Defendant had contacted the Attorney to make certain changes without Plaintiffs knowledge or consent. Plaintiff contacted the Defendant directly and on September 3 , 2010 , Plaintiff and Defendant reached the September 3 2010 agreement detailng the terms of their duties and responsibilities with respect to S & S which opened for business on Januar 5 2011. The Complaint contains two (2) causes of action. In the first, Plaintiff alleges that Defendant breached the provisions in the agreements dated July 9 , 2010 and September 3 2010 stating that the hours would be divided equally between the paries regarding the daily operation of S & S. Plaintiff alleges that he complied with his obligations but that Defendant refused to perform any work related to S & S' s daily operations , resulting in damages to Plaintiff in excess of $1 00 000. In the second cause of action , Plaintiff alleges that Defendant is liable for abandonment and breached the covenant of good faith and fair dealing when she reopened the antique store previously operated by Wayne and his late father and failed to devote the required time to operating S & S. Plaintiff alleges that he was compelled to hire additional help at S & S and seeks damages at an annual cost of $62 400. In his Affidavit in Support, Plaintiff affirms the truth of the allegations in the Complaint. He provides copies of 1) the handwritten , unsigned July 9 , 2010 agreement , 2) the Lease , 3) the Operating Agreement , and 4) the September 3, 2010 agreement , signed by the paries (Exs. A - D to Spota Aff. in Supp. [* 4] Plaintiff also affirms that Defendant , as a 50% owner ofS & S and executrix of the Trust serves as both landlord and tenant of the Premises. In the District Court Action , Defendant, as landlord, alleges that S & S defaulted under the Lease by failing to remit monies owed under the Lease. Defendant served Five Day Notices on Plaintiff directing him to pay the outstanding sums due or surender possession of the Premises (Ex. F to May Emerg. Aff. ). Plaintiff affrms that Defendant , allegedly in an effort to cause S & S to default , stood outside of S & S and instructed customers not to enter. Plaintiff also affirms that Defendant , in addition to failing to contribute to S & S' operations as agreed , delivered allegedly threatening letters to Plaintiff (Ex. E to Spota Aff. in Supp. ). Plaintiff submits that Defendant's actions caused the default for which she now seeks relief in the District Court Action. Plaintiffs counsel affirms that , following the service of the Five Day Notice on Plaintiff she wrote a letter to Defendant's counsel " questioning " the Notice (May Emerg. Aff. at 10 and Ex. G) and outlining Plaintiffs position regarding the sums allegedly owed by Defendant to Plaintiff for S & S expenses including taxes and payroll. Plaintiffs counsel notes that Defendant did not pursue a landlord-tenant action immediately after receipt of this letter. On or about December 5 , 2011 , Defendant forwarded to Plaintiff another Notice alleging default by S & S as lessee, and on or about January 10 2012 , Plaintiff received a Notice of Non- Payment Petition (id. at Exs. H and I). In opposition , Defendant' s counsel affirms that 1) the petitioner in the District Court Action is the Trust and the respondent in the District Court Action is S&S Eatery, LLC; 2) Defendant Shure s only involvement in the District Court Action is that she verified the Petition as the Trustee of the Trust , on behalf of the Trust; 3) neither Shure nor Spota is a pary in the District Cour Action; 4) the District Court Action was filed to enforce the landlord' s rights under the Lease; 5) the agreement under which Plaintiff seeks relief in this action is unrelated to the Lease that fonps the basis for the District Court Action; and 6) the issues in this action are unrelated to those in the District Court Action in which the petitioner seeks remedies arising from the non-payment of rent. C. The Paries ' Positions Plaintiff submits that it has demonstrated its right to the requested injunctive relief by [* 5] establishing a likelihood of success on the merits. Plaintiff submits that the July 9 September 3 , 2010 and 2010 agreements establish Defendant' s obligation to dedicate appropriate attention to S& S , and Spota s affdavit establishes his performance under the paries ' agreements and Defendant's failure to comply with those agreements. Plaintiff contends , further , that Plaintiff will be irreparably hared if the Cour denies injunctive relief because Defendant would then be able to exploit her dual roles as landlord and tenant and the instant action wil effectively be rendered moot. Plaintiff also argues that a balancing of the hardships favors Plaintiff who affrms that he has invested substantial monies and effort into operating S &S , and that Defendnat has failed to make her agreed- to contributions to their business. Defendant opposes Plaintiffs application on the grounds that 1) as District Court is the preferred venue for the District Court Action which is a landlord- tenant proceeding, the Cour should permit the District Court Action to proceed; 2) Plaintiff has not demonstrated a likelihood o f success on the merits in light of the allegations in the related dissolution action pending in the Supreme Court titled In the Matter of the Petition of Elaine Shure for the Judicial Dissolution of S&S Eatery, L.L.c. Index Number 000950- 12 (" Related Action ) in which Share disputes many of Spota' s allegations; 3) Plaintiff has not established irreparable har without the requested injunctive relief as the sole relief sought by petitioner in the District Court Action is the payment of additional rent in the sum of $6 , 183.48 , comprised of real estate taxes and utility costs, and the payment of that additional rent wil Action wil cause not force Spota out of business; 4) a stay of the District Court substantial har to the landlord by delaying its right to collect rent to which it is entitled under the Lease; and 5) a balancing of the equities does not favor Plaintiff whose arguments " really amounts to a claim that he (or the Tenant) should be allowed to occupy business premises without being obliged to pay rent to do so " and in light ofthe fact that the tenant, S & S Eatery LLC , has the ability to retain the premises by paying the outstanding rent. RULING OF THE COURT A. Preliminar Injunction Standards A preliminar injunction is a drastic remedy and wil only be granted if the movant establishes a clear right to it under the law and upon the relevant facts set forth in the moving [* 6] Wiliam M Blake Agency, Inc. papers. Corbin 275 AD. 2d 35 , Leon 283 AD. 2d 423, v. Petersony 424 (2d Dept. 2001); 36 (2d Dept. 2000). Injunctive relief wil lie where a movant demonstrates a likelihood of success on the merits , a danger of irreparable har unless the Aetna Ins. Co. v. Capasso injunction is granted and a balance of the equities in his or her favor. WT Grant 75 N. Y.2d 860 (1990); Co. v. Srogi 52 N. Y.2d 496 Romaine 295 AD. 2d 431 (2d Dept. 2002); 517 (1981); Merscorp, Inc. v. 291 AD. 2d 434 (2d Dept. 2002). The Neos v. Lacey, decision whether to grant a preliminary injunction rests in the sound discretion of the Supreme Court. Doe v. Axelrod 73 N. 2d 748 750 (1988); Automated Waste Disposal, Inc. v. Mid- Hudson Waste, Inc. 50 AD. 3d 1073 (2d Dept. 2008); Capital, LLC 40 A.D. 3d 902 903 (2d Dept. 2007); City of Long Beach v. Sterling American Ruiz v. Meloney, 26 A.D. 3d 485 (2d Dept. 2006). A plaintiff has not suffered irreparable har waranting injunctive relief where its alleged injuries are compensable by money damages. 258 AD. See White Bay Enterprises v. Newsday, 520 (2d Dept. 1999) (lower court' s order granting preliminar injunction reversed where record demonstrated that alleged injuries compensable by money damages); Schrager v. Klein , 267 AD.2d 296 (2d Dept. 1999) (lower court' s order granting preliminar injunction reversed where record failed to demonstrate likelihood of success on merits or that injuries were not compensable by money damages). B. Landlord- Tenant Actions The District Cour , or the Civil Cour , is the preferred forum for the resolution of landlord- tenant disputes where the tenant may obtain full relief in a pending summar proceeding. Fitness, Inc. Sports 2005), citing, C. v. Hamilton, Kane, Martin Enterprises, Inc. 22 A. inter alia , Spain v. 325 All 4 3d 512 513 (2d Dept. W 83 Owners Corp. 302 AD. 2d 587 (2d Dept. 2003). Application of these Principles to the Instant Action The Court notes that it recently issued a decision in the Related Action referring certain issues relevant to the petitioner s application for dissolution of S & S Eatery to a hearing in light of the disputed issues of fact. The Cour denies Plaintiffs Order to Show Cause based on the Cour' s conclusion that even assuming arguendo that Plaintiff has demonstrated a likelihood of success on the merits 1) Plaintiffs injur, if any, is compensable by money damages and , therefore, Plaintiff has not [* 7] demonstrated irreparable har without the requested injunctive relief; and 2) a balancing of the equities does not favor Plaintiff as a delay of the District Court Action wil potentially prejudice the landlord from enforcing its rights under the Lease. Accordingly, the Court denies Plaintiffs Order to Show Cause in its entirety and vacates the TRO. All matters not decided herein are hereby denied. This constitutes the decision and order of the Cour. The Cour reminds counsel for the paries of their required appearance before the Cour for a conference on June 6 , 2012 at 9:30 a. ENTER DATED: Mineola , NY April 5 , 2012 HON. TIMOTHY S. DRISCOLL ENTi:R *R. 12' COU SS&* FICF.
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