Peter Scalamandre & Sons, Inc. v Incorporated Vil. of Freeport
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Peter Scalamandre & Sons, Inc. v Incorporated Vil. of Freeport 2012 NY Slip Op 31575(U) May 31, 2012 Supreme Court, Nassau County Docket Number: 001248-12 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 PETER SCALAMANDRE & SONS, INC., Plaintiff TRIAL/IAS PART: 16 NASSAU COUNTY Index No: 001248- Motion Seq. No. -against- Submission Date: 4/16/12 INCORPORATED VILLAGE OF FREEPORT Defendant. --------------------------------------------------------------------x Papers Read on this Motion: Notice of Motion , Affidavit in Support and Exhibits................ umm 0 ns an d Com plain t................................... ....................... ..... Affirmation in Opposition and Exhibits................................. This matter is before the court on the motion fied by Defendant Incorporated Village of Freeport (" Vilage " or " Defendant") on March 29 , 2012 and submitted on April 16 , 2012. For the reasons set forth below , the Court denies the motion. BACKGROUND A. Relief Sought Defendant moves for an Order , pursuant to CPLR 9 3211(a)(5), dismissing the complaint in its entirety. Plaintiff Peter Scalamandre & Sons , Inc. (" Plaintiff' ) opposes the motion. B. The Parties ' History The Complaint alleges as follows: Peter Scalamandre ("Peter ) is the President of the Plaintiff corporation. The Village is the sole owner of the premises (" Premises ) located at Section 62 , Block D , Lot plo 397 , located [* 2] in the Village. On or about January 14 , 1992 , Plaintiff entered into a written lease agreement with Defendant (" 1992 Lease ). The 1992 Lease was for a period of six and one half (6. months , running from Januar 15 , 1992 to July 31 , 1992. Plaintiff alleges that Peter continues to pay, and Defendant continues to accept , the payment as agreed upon in the Lease for the next twenty years , through January of2012. In August of 2009 , at the Village s request , Peter began good faith negotiations with Defendant to enter into a new lease. Pursuant to those negotiations , on or about May 3 , 2010 Peter forwarded a newly negotiated , signed lease to the Vilage for signature in an attempt to begin a new tenancy at an increased rate. The Village received the new lease but " subsequently forgot about its existence for several months thereafter " (Compl. at 12). On October 24 , 2011 the newly negotiated lease was re-sent , via facsimile , to the Vilage at the request of J. Barrington Jackson (" Jackson ), the Deputy Village Attorney. Shortly thereafter , the Vilage demanded retroactive payment from Peter. On October 27 , 2011 , the Vilage served a Notice to Quit on Peter , terminating the tenancy atthe Premises on November 30 , 2011. Defendant continue to accept rent from Plaintiff after November 30 , 2011 , and did not commence a summary holdover proceeding. In November of 20 11 , Peter again attempted in good faith to negotiate a new lease with Defendant. On or after December 16 2011 , Defendant delivered a Notice to Quit on Peter , terminating the tenancy at the Premises on January 31 , 2012. Plaintiff alleges that the Notice to Quit was not properly served and, therefore , is defective. Plaintiff alleges that it is , and has been , ready willing and able to negotiate a new lease with the Defendant , and is not in default. Plaintiff alleges that if Defendant is permitted to terminate the tenancy, Plaintiff will suffer irreparable injur. Plaintiff alleges , further , that 1) Defendant will not be prejudiced by the continuation of the tenancy, and Plaintiff is willing to negotiate new terms; 2) Plaintiff has no adequate remedy at law to rectify the damages it will suffer upon Defendant' s allegedly wrongful termination of the tenancy; 3) the Village should be required to specifically perform its obligation regarding the tenancy; and 4) Defendant should be enjoined from commencing any actions bringing any proceedings , or taking any other steps to terminate the lease. Plaintiff seeks a judgment enjoining the Defendant from commencing any action , bringing any proceeding, or [* 3] taking any other steps to terminate the tenancy. On January 31 , 2012 , Plaintiff filed an Order to Show Cause seeking injunctive relief Prior Motion ). On January 31 , 2012 , the parties entered into a stipulation (" First Stipulation ), which was so-ordered by the Court , pursuant to which 1) Defendant agreed to stay any commencement of a summary proceeding against Plaintiff for sixty (60) days from the date of the stipulation; and 2) in consideration of the stay, Plaintiff agreed to waive any and all defenses to the Notice to Quit dated December 16 2011 , including but not limited to any defects in the instrument or service or proof of service. On April 24 , 2012 , the paries entered into a stipulation , pursuant to which the terms of the First Stipulation were extended pending the Court' s decision on Defendant' s motion to dismiss. In addition , pursuant to the April 24 , 2012 stipulation , Plaintiff withdrew the Prior Motion. In support of Defendant' s motion to dismiss , Jackson affrms that on or about January 14 , 1992 , Defendant entered into the 1992 Lease with Plaintiff (Ex. B to Jackson Aff. in Supp. ), which was a commercial lease agreement. Pursuant to the 1992 Lease , Plaintiff was to make rental payments of $800 per month. The 1992 lease ended on July 31 , 1992 , at which time Plaintiff remained at , and continued to use , the Premises. Plaintiff's conduct in this regard initiated the existence of a month- to-month tenancy between Plaintiff and Defendant , which commenced on August 1 , 1992 and continues to the present day. Jackson affrms , further , that on or about March 1 2010 , a new commercial lease between the parties was scheduled to commence (" Proposed Lease ) (Ex. C to Jackson Aff. in Supp. ). The Proposed Lease contains the signature of the Plaintiff but does not contain the signature of the Defendant. Jackson avers , fuher , that on or about October 24 , 2011 , Plaintiff faxed to Defendant a newly negotiated lease which makes reference to the potential commencement of a month- tomonth tenancy. Shortly thereafter , Defendant sought payment from Plaintiff in a sum equivalent to the market value of the Premises. On or about October 27 2011 , Defendant delivered a Notice to Quit to Plaintiff. On or about December 16 , 2011 , Defendant delivered a second Notice to Quit on Plaintiff, to which the [* 4] First Stipulation makes reference. Shortly thereafter , Defendant submitted a third Notice to Quit by mail to Plaintiff. On January 31 2011 , the paries entered into the First Stipulation. In opposition to Defendant' s motion , counsel for Plaintiff (" Plaintiff's Counsel" ) affirms that , pursuant to the Court' s recommendation that the paries attempt to resolve this action , Peter has engaged in good faith negotiations with Defendant. On March 1 , 2012 , counsel for the parties met and discussed an agreement to resolve the dispute of whether Peter owed the Village retroactive payments , notwithstanding Plaintiff's contention that " it was (the) Village s error in letting the lease sit without its signature for one and a half years " (Francis Aff. in Opp. at 6). Plaintiff's Counsel affirms that , for 18 months , the Village " continued to accept rent at the previous , lower rate (id. at n. 1). On March 6 2012 , Plaintiff's Counsel was advised that the Village rejected the proposed agreement. Plaintiffs ' Counsel notes , however , that the minutes of the Board of Trustees C. (id. at Ex. C) do not make reference to this matter The Parties ' Positions Defendant submits that the Complaint is not viable because Plaintiff canot establish the existence of a commercial lease , which is essential to its request for a Yellowstone Injunction. The Proposed Lease , on which Plaintiff relies , does not contain the signature of both parties. It is Defendant's position is that there is a month- to-month tenancy, and Defendant's continuous acceptance of payments supports that position. Moreover , Defendant has not acknowledged the existence of a commercial lease agreement between the parties , with the exception of the 6month 1992 Lease. Plaintiff opposes Defendant' s motion , submitting that Plaintiff has a viable cause of action for the requested relief, which is necessar to protect Plaintiff's leasehold interest. Plaintiff contends that Defendant's acceptance of rent in February and March of2012 , following the purported termination of Plaintiff's tenancy, constitutes a waiver of the Notice to Quit. Plaintiff also argues that , while there is no written lease , Plaintiff clearly has a leasehold interest in the Premises by virtue of the fact that Plaintiff has been the sole occupant of the Premises for over 20 years. Plaintiff also submits that Defendant has failed to articulate a basis , pursuant to CPLR 3211(a)(5), that would warrant dismissal of the Complaint. [* 5] RULING OF THE COURT Yellowstone The purpose of a injunction is to allow a commercial tenant confronted by a threat of termination of a lease to obtain a stay tolling the ruing of the cure period so that , after a determination ofthe merits of any action arising under the lease , the tenant may cure the defect Y.2d 630 (1968); AD. Yellowstone Shopping Ctr. , 21 Shapiro v. 600 Third Ave. Assocs. Graubard Mollen Horowitz Pomeranz Hempstead Video , Inc. 93 N. Y.2d 508 (1999); Dept. 2007); v. First Natl. Stores and avoid a forfeiture of the leasehold. Rockaway Assocs. , LLP 38 AD. 3d 838 (2d 1103 Stewart Ave. Assocs. Ltd. Partnership, v. Long Is. Gynecological Servs. v. 363 Yellowstone 2d 591 (2d Dept. 1996). A tenant seeking 224 relief must demonstrate that: 1) it holds a commercial lease; 2) it has received from the landlord a notice of default; 3) its application for a temporar restraining order was made prior to expiration of the cure period and termination of the lease; and 4) it has the desire and ability to cure the alleged default by any means short of vacating the premises. 38 AD. 3d at 839; Mayfair Super Mkts. , Inc. v. Rockaway Assocs. , LLP v. 363 See Hempstead Video, Inc. Serota 262 AD. 2d 461 , 461- 462 (2d Dept. 1999). The Cour denies Defendant' s motion to dismiss in light of the allegations of Plaintiff that Defendant accepted rent from Plaintiff following the service of the Notices to Quit. A landlord' acceptance of rent may be deemed to constitute a waiver of any alleged right to terminate the leases of tenants and to result in the renewal of such leases. 363- 367 Neary, Neptune Avenue , LLC 30 Misc. 3d 779 , * 790 , n. 8 (Sup. Ct. , Bronx Cty. 2010), citing Misc. 3d 1105A , * 2 (Dist. Ct. , Nassau Cty. 2008) and Greenwich Gardens Assoc. Timothy v. Matison , 20 v. Pitt , 126 Misc. 2d 947 , 955 (Dist. Ct. , Nassau Cty. 1984). Thus , Plaintiff may be able to establish that it holds a commercial lease , and can satisfy the other required criteria , entitling it to the requested relief. [* 6] All matters not decided herein are hereby denied. This constitutes the decision and order of the Court The Cour directs counsel for the parties to appear before the Court for a Preliminary Conference on July 2 , 2012 at 9:30 a. DATED: Mineola , NY May 31 2012 HON. TIMOTHY S. DRISCOLL ENTERED 2012 NASSAU COUNTY JUN COUNTY 07 eLE OFPlce
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