Tai's Food Court Inc. v 601 Eighth Avenue LLC

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Tai's Food Court Inc. v 601 Eighth Avenue LLC 2012 NY Slip Op 33038(U) December 17, 2012 Sup Ct, New York County Docket Number: 105348-2010 Judge: Kathryn E. Freed 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. SCANNEDON I212112012 [* 1] I SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HQ.3. ~~XHErn = Fm 9 I PRESENT: Jusna s-g-pm aCOUm PART Justice -& Index Number : 105348/2010 TAI S FOOD COURT INC INDEX NO. VS MOTION DATE 601 EIGHTH AVENUE LLc MOTION SEQ. NO. Sequence Number. 002 SUMMARY JUDGMENT The following papers, numbered 1 to Notice of MotionlOrder to Show Cause Answering Affidavits Exhibits - ,were read on this motion tolfor GMc/-.r, - Affidavits - Exhibits 3 (No(4. INo(s). I- 3 9, /j-/q Replying Affidavits r / Upon the foregoing papers, it i ordered that this motion i s a i 1. CHECK ONE: I,..................,.......... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ..,,.................................. 0 CASE DISPOSED ....,,,,,.................MOTION IS: 0GRANTED ,@DENIED ................................................. SETTLE ORDER r] aDO NOT POST N-FINAL DlSPOSlTlOh GRANTED IN PART oOTHER nSUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCI [* 2] PlU3ENT: Hoii. Kathryn E. Frccd J.S.C. QEC 2 1 2012 -against- Recitation, as requircd by (.'PI,R $22 19[a],of the papcrs considered in the rcview of this (these) NU MBERl I D NO'l'IC13 O F MO'I'ION, AI-'I~IT)AVI'I'SA N D IXXIIIl3ITS ANNEXED. O R D E R ' 1 ' 0 SHOW CALISIC ANI1 AI~I*'II)AV ................................................. AN S WE K I N Ci A I 1: I D A V I'I 'S........ l<LPl,Y lNCi AFI~II)AVl'I'S ................................................ (3'TIHER .......... X-Motion & affidavits; memos af law. ........................ ................................. 1 ... 1-3 ......... ..................... ...!I ............... ... I O .............. ..4-8 ............. ..l 1-14 ......... .-. [* 3] . - , I- [JPON I I I I : I ~ O I < I , ( X ) I N ~VI 11.1) I AI I~,I<S. I IIIS I)I~CISION/ORI>l~R TIIIS M O T I O N I AS f OI,l,OWS i ON S Plaintiff l ai s Food C ourt, Iiic., ( hercinaftcr TFC ), and Third Part Tlcfendant I,i Ying Sun, ( hercinLificr, Sun ),via motion, tiiovc 10r an Order granting suiiimal-yjudgmciit arid dismissing thc countcrclainis assci-tcclagainst tlicm hy defendant Voliinteers o f Aiiierica-C;reatcr New York, Inc., (hereinafter. + V.O.A. >.TFC and Sun also iiiovc for an Ordcr disinissiiig the third party complaint Glcd by V,O.A. against SLin individually. V.O.A., via cross-motion, ~noves an Ordcr granting lbr suiniiiary judgmcnt 011 its coiintcrclaims and third pal-ty claims. V.O.A. also imvcs [or an Ordcr dismissing I 1 C s complaint against it, striking Sun s atliriiiativc dcf enscs, arid granting it a hearing to a s s w uttorncys l ccs and expenses as against both 1I;C aiicl Sun. t;ac t L i a l and 1 0ccdu r n1 bac I< ground : x I lieiristaiit matter is esscntially a landlord tenant dispute. 60 1 Light Avcnue, l,i,C, ( hercinaller, thc landlord ), is the landlord of the Prime Leasc existing hetween it and VOA. VOA s s~iblcsscc I l: ?. is Ms. Sun is the guarantor of the sublciisc. I licmaterial facts in this case ;ire undisputcci. VOA is a not for prolit corporation which is ; i New York C ity based dlil iatc of Volmtccrs ol Anierica, a national charitable organization. On .luly 3, 2007, it cntcl-cd i i i t o it Priine ],case with the laticllord, to leiisc portions of the ground and second Iloors ilt 60 1 Eight Avenue, New York, New York, to operate a n intakc m d prcveiition ~ 1 1 t e r l or thc hoiiicless. I lic l,easc was for a tlircc year tcrm, set to cxpirc on May 3 I , 20 10. Subseclucnt to signing thc Ixase, VOA lost its f h i i n g , Unablc to terminate thc Primc I.,case, and in an cfi ort to avoid B total loss, i t advcrtiscd the premises as a sublet. In April 2009, TFC s owner, fai, mct with Aiidrcw Lloyd, Tlircctor of Risk Management, 1)urcIiasiiig8~Property (. ontrol fhr VOA. Tai and his wifc, Ms. Sun, expressed interest i n subletting 2 [* 4] tlie spacc to build a li)oci court, but claimed that to do so, tlicy would iiccd to extcnd the Prime Lcase temi bcyond its dcsigiiated expiration datc. I liey ngrccd to sublct the prcmises with so little time r-ctiiainingoti the Lctlse, Ixlieviiig that they would bc able to negotiate a ncw Ieasc with the landlord. Contcii7~~oraiieoiis;ly the cxecution o f the Sublease, Ms. Sun, as principal of lI+K , with signed a pcrsoiial Guaraiity, wherein she, inlcr nliu, in7conditioiially, absolutely and irrevocably guaranteed to VOA ( 1 ) tlic pronipt payment when due ol the Bast Rcnt, aiid all other sums duc i n conncction with o r under the Sublease, and (2) any and all expciises ( iiiclucliiig without limitation, counsel I ees and disbiirscments) incur-r-cdby VOA in enforcing any rights undcr tlie Giiaranty ( sec VOA s crossniolion, p. 14 1 37.) 1 Al ter 1 I:C Iriiled to negotiatc an estcnsion o f t l ~ c Prime 1,casc o r obtain its own direct Icase l with lliu l a ~ ~ d l o r cit . ccasccl paying rent to VOA, l h n Octobcr 2009 throughout the last six tiiontlis of thc sublcasc tcrm, wliilc still rcmaining in posscssioii of the premiscs, selling clothing and acccssorics. C onscquenlly, on April 12, 20 10, VOA commenced an I ,2kr1.proceeding in New Yorlc County Civil Court. b ollowing cxtensive ncgotiations, X FC arid VOC eiitured into a stipulation wlicrcin i t was agreed, inler crlkr, that VOA would waivc I-AI srcnt arrears totaling $66,200.00, aiid that I AI would vacalc and surrender possession on Jirne 1 , 2010 at 3:OO P.M. Mr. Lloyd asscrts that 011 this scheduled date and time, lie, as well as landlord s agent, I Inrold Sutton and T1K s attorney, 1)onald Eng, iiict at the subject prcmises. I-lcalleges that he iinrncdiately obsorved lhc prcmi to he strewn with furniture, boxcs ol: inventory, display racks and debris. Whilc tlierc, MI-.I h g asscrts thal hc aslted Mr. Suttoii for perniission to rcturn to tlie storc thc next clay 10 clcan u p thc prc~iiiscs,hiit Mr. Sulton reliised. Mr. Lloyd asserts that Mr. rlng asked Mr. Sutton il TIX could I-cturn iii about a wcclc or so to clean the preiiiiscs. However, Mr. Eng, in 3 [* 5] his Affjrmatioii of Donald Hng, as Exhibit 0, appends the deposition testimony of Mr. I Aoyd taken on Jamary 20, 201 2. In his deposition, MI-. concedes that lie ovcrheard either Mr. 131ig Suttoii o r Mr. Tai ask Mr. Sutton if thcy coiild he let back iiito tlic premiscs the ncxt day, June 2 , iiiove to the items o u t . Mi-. I ,loyd also testilicd that hc could not recall what Mr. Sutton s response to this I L qlIc stwas. Wliilc in thc prciiiises, Mr. Suttoii s assistant and Mr. 1,loyci each took photographs of tlie existing conditions which thcy observed, These photographs arc appendcd to VOA s inoviiig papers as Exhibits A and E. Thcy clcarly dcpict the conditions that VOA dcscribed in its papers. Thc landlord subscqucntly removed this rcinaining property and had the prciiiises clcaned, I lowevcr, it gave VOA tlic $8,000.00 bill for the costs aid expcnses associated with fliis removal/clean tip. Positions of the parties: VOA :irgues that 1.Wbreached the Subleasc by hiling to pay ccrtaiii rcnt aiid addilional reiil tu it siiicc Octobcr 3009, and brcached thc stipulation by failing to vacatc the premiscs hy 3:OO p.m. oil .lune I , 20 I O . It also argucs that tlic releasc provision coiitaincd in tlic stipulation was a11 executory accord, conditioiicd on I FC ssatisfiction of its obligations to vacatc and surreiider ssion of tlic prciiiises, with time being ofthe essciicc. VOC refers to and relics on t i O L $14- SO1 ( 3 ) , which provides that Ti jf an executory accord is not perfonncd according t o its terms by onc party, the other party shall be cntitlcd either to assert his rights under thc claim, cause of action, contract, obligation, lc:ise, mortgage or other security intcrcst which is the subject ofthc accord, o r to assert his rights undcr the ;-iccord. VOA also argucs that I 1C hiled to perform its accord pursuant to Ihe stipulation by liiiling to ndhere to the vacate provisions of said stipulation, which was to siu-1-cnclerposscssion and leave 4 [* 6] lllc premises empty. I l+C s performance ofthcsc two conditions was the cxccutory accord that T F C nccded to satisli in order to rcccive the bene13 ofthe release provision sct I orth in paragraph 9 of thc stipulation VOA asscrts that while 1FC surrcndercd posscssion of the premises on the agreed upon dale of .luiie I , 201 0, it did iiot vncufe the premises or Icnve f h c 1 w ~ i ~ ivcrccm/. VOA, citing ~~ ,s Dlack s 1,aw I)ictionary, argucs that the word vacant iiicms cornplctcly ciiipty, as in no persons, property or dcbris. C onscquemtly, since ? I T did not lcave the premises vacant, neithor TFC or Sun will hc able to enlbrcc tlic rclcase provision coiitaiiicd in said stipulation. I IiC asserts h i t tlic Court need not concern itself with the issue of whether I FC had ; i meritorious claim l i cll-tinageso r ddenscs to VOA S nonpayinent procceding for rcnt. It argucs that ~ the solc issuc bclbre thc court is wliellier I K breached the stipulation of scttlcimeiit by fiiiliiig to surrender v;imit possession. TFC argues that he meaning of the word vacant in the context 01 Imndlorcl and teiiant relationships docs nut incan devoid of pcople and propcrty. 11 argues that if l l x ~iilcnt thc stipulation was that all properly bc removed, the phrase broom clean condition of would have bccn included in the language. TFC also argucs that it is clear that any requircmciit for- TFC to reiiiovc all of its personal propcl-ly and to lcave tlic prciiiiscs brooiii clean was deletcd from tlic stipulation. I he final version ol thc slipulation only I-cquircd I FC to promptly rcquest access to return to clean up. It is undisputed that access was dcnicd ( I IT sniciiio of law, p 6-7). TFC: notes that the stipulation is sjlciit as to \what 1i:ippcris if permission to return w a s h dcnied. Additionally, TFC asserts that VOA s attorney, Mr. Soloinon, via letter appended as TE C s l+;xhibit N, only requests that TFC reimburse VOA for 111c $X,OOO.OO clcm up charge, and when I FC rcfuscd, VOA rcvivccl all ol its prior claims, a remedy that tlic stipulation docs not provide for. 5 [* 7] C: o ii c 1ii s i c) 11 s (3 t i i: It is well established that the proponent o f a suinmaryjudgmciil motion must mako a prima I ncie showing of cnti tleiiiciit to judgment as a mattcr of law, teiidcriiig sufficient cvideiicc to eliminate a n y li1i1tcrid issues offact fi-om the case ( Meridian Mgt. C orp. v. Cristi Cleaning Scrv. c orp., 70 A.L>.Cid SOX, 5 1 0 I I Dcpt. 201 01, quoting Wincgr-ad v. New York IJniv. Mcd. C tl-,, 64 N.Y.21 XS 1 , 8 5 3 I I9851 ). Once ttic proponent ofthe iiiotioii has imdc a priiiia hcie showing, the bul-dcn shills to the opposing party to present cvidentiary facts in adtiiissiblc forin sufficient to raise ; 1 genuine, triablc issue ofl acl ( Mazurek v. Metronolitan Museum o f Art, 27 A.13.3d 227, 229 1 I I k p t . 20061 ciling&kcrman v. City o1 Nt.w York, 49 N.Y.2d 557,562 [ 19&0]). Mere conclusory mxrtioiis, clcvoid of evidcritiary facts, ;ire iiisul licicn~ this purposc, as is reliance upon surmise, for ct)ri.jccture. o r speculation" ( Morpaii v. New York Telcplmie, 220 A.11.2~1 728, 72 1 [ 2d Ilcpt. 1905]; %iiclccruiian v. C ity of Ncw Y , & at 562 ). 11 is wcll settlcd that stipulations of settlciiient arc judicially Favor-cd aiid will not easily bc set asidc ( S C C H:dlock v . Statc ofNew York, 04 N.Y.2d 224 119x41; Mailer of Frutinver, 29 N.Y.2d I43 I 1 971 I ). Stipulations ol scttlemcnt arc essentially contracts and will bc construed in accordance with contmct priiiciplcs ( s c c Serna v. t crgnmciit llistributors, Inc., I82 A.D.2d 985, 986 [3d Dept. 1992], hi r/ismis,scd81~ N.Y.2d 893 [ 19921. I hus, 1 oliily wherc there is cause sufficient to invalidate a contr:icl, such as fraud, collusion, inistalcc o r accidcnt, will a party bc rclicved from tlic co~~scqi~c~ict s 01 a stipulation made diu-jiig litigation ( I lallock v. Statc of New York, 64N.Y.2c3 at 230 ). It sho~ild noted that appended in TFC s moving papcrs, are tlircc stipulations ofsettlcmcnl. bc ,- I hc oiic desigii:ited as 1;xhibit I, is tlic only oiic which bcars thc rcspcctivc signaturcs 6 of tlic [* 8] pal-tics. I lius,tliis appears t o bc the liiw1, ollkial version, and will be 1110 only onc which the COUI-l wi I I :IC li 110 w 1ccl ge ;ind add res s . l hcrearc two pertincnt paragraphs containcd in tlic stipulntion. Paragraph 6 states [ o j ~oir b e h c 3:OO p.111. 011 thc Surrcnder Ilate, Kcspondcnt shall vacate niid surrendcr the Promises Ihc and r c t ~ - n s;inic to Pctitioncr vacant and frec of all occupants. 111 the everit that Kcspondcnt is unahle to rcniove ;uiy property or dcbris by 3 :00 p.m. 011 the Surrender, licspondeiit agrccs to make prompt nrrangciiieiits through Pctitioncr and/or 111coverlandlord to gain ; ~ c c s s o thc Prcriiiscs and t removc any rcinaining propcrty or debris aiid leavc the Premises in broom clcan condition, except fix dchris caused hy Icalts alicl for propcrty lcf by prior tcnant. Paragraph 9 statcs in pci-tinent part [hat [plrovidcd that Iicspoiidcrit tiiiicly vacatcs and surrcnders possession ofthc Prciiiises to I etitioncr, in accordance with this stipulation on or beforc 3:OO jmi. on thc Sun-cnclerDatc, I IM1113EING O F I HE ESSENCE, I etitioiier waivcs all monetary claims pursuant to thc Sublcase against Respondent ... It also states that Petitjoiier will waivc the guaranty and discoiitiiiirc tlic I&I procecding. Ikl ore tlic C O L Ican detel-mined thc meaning or the tcrins vacant and broom clean, it ~I nccds to addrcss what a p p r s to be contradictory, inislcading and c~ucstio~iablc language contained in tlic stipulntioii. While lxmgrapli 7 clearly permits 1 FC an additioiial opportunity to nialte prompt arrnrigcments to rctuni to the prciiiises after thc Surrender datc to clcaii up, paragraph 9 mandates that IIT comply with thc surrctidel- datc and t h c , T I M E HEING 0 1 ; THE ESSENC E, before il can be rcleascd from its outstanding dcbt. Moreover, thc Courl is niiridliil ofMr. Lloycl s deposition tcslimony, whcrein lic concedes that 1ic overheard eilher Mr. Tai or his attorney, Mr. big, I - C L ~ U C S ~ pelmission lion1 Mr. Suttoii to return the following day to clean up the promiscs. 7 [* 9] I heC OLIIILIISO notcs that tlie wording of said stipulation clearly contcmplated thc possibility that some itcms iiiiglit be leli behind in the preiiiiscs alter tlic surrcnder date and time. I he slipillation stated vcry clcarly that I FC sliould makc arrangciiients through Petitioiier and/or overlord to gain iicccss to the X rciiiiscs and rcmovc any rcmaining property or debris and leavc tlie preiiiiscs iii broom clcaii condition ... I his wording sceiiis to indicate that at thc surrender date and timc, thc prciiii~cs wcrc not rcquircd to he broom clean. 1 lowevcr, tlie stipulation rcmains silent as to what would h q x n i t thc landlord prcvented ? I T lrom pcrforming its designated duties under its stipulation with VOA, Moreovcr, would this prevention o l WC from pcrlbrining its duties be co 11si tl ercd a 1 1at cr i ;i 1 1 br-cacli of t Ii c slip id at i o n ! , * 1 he C ourt I lirthcr notes that both sides obviously had a pcrsoiid interest in lormulaling tlic stipulation. T I T buncfitted bccausc VOA surrcndered its right to collect all back rent due and owing ;is wcll as attorncy s l ecs. Additionally, Sun s personal Guaranty would be waived. TE C , in agrccing to vacate by the stipiilatcd datc and timc, relieved VOA li oni paying liquidated damagcs lo tlic Iandlol-(1,at the rate of- 1 .S titlics the prcvious rent for every month, until T I T vacated or was cvictcd. VOC d s o prcvnils in that I FC agrecs to rcliiquish any security dirc under t l x Sub-lcase. Tlicl-cforc, 1wsc.d on the fact that thc tcrrns ofthe stipulation arc not rcasonably ccrtain, ( A C P C obhlc Hill Nrirsinc Home v. 1 lenry & Warren cor^., 74 N.Y.2d 475 [ I 9801; Slcrling Fifth Assoc. v. C arpciitillc Col-p., lnc., 10 A.D.3cl 282 11 1)cpt. 20041 ), suniiiiary Judgment must be denied, as thc partics intent now bccomcs an issue o l fact [or ii jury to decidc. I n accordmcc with the alhrcmcntioncd, it is hereby O I I L ~ J ~ I Z Gtliat plaintiff I E C sand third party dcf cndant Sun s iiiotion seeking an Order D granting summary judgmcnt and the dismissal o l V O h s counterclaims is dcnied and it is further 8 [* 10] OltDEKED that I FCand Sun s motion lor an Order dismissing VOA s third party complaint is hei-chy clcnicd and it is further Ol~DLXEl) that V(IjA s cross-motion sccking an Order granting siiiiitnary judgincnt on its counterclaims nncl third-party claims is hcrcby denied and it is further OKI3I71I1;l) that VOA s cross motion seeking an Ordcr striking Sun s aflirmative deknses and granting it a hearing to accc ss attorney s fees aid cxpciises as agaiiisl TFC arid Sun, is also deiiicd and it is further DA 1 1:13: 1)cccmbel- 17, 201 2 Hen. Kathryn E. Freed S.S.C. FILED 9 I

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