T & F Fast Foods Corp. v Kessanidis Twins Realty, LLC
Decided on April 13, 2012
Supreme Court, Queens County
T & F Fast Foods Corp., Plaintiff,
Kessanidis Twins Realty, LLC, HELEN BOGDANOS, ASHRAF CORPORATION, and JLS DESIGNS, ARCHITECTURE & PLANNING PC, Defendants.
Charles J. Markey, J.
The motion by plaintiff, by order to show cause, to transfer an action entitled Kessanidis Twins Realty, LLC v Leonard DiBari & T & F Fast Food Corp. d/b/a Tony & Frankie's Fast Foods, pending in the Civil Court of the City of New York, Commercial Part, under Index Number 86483/2011 of that Court and to consolidate it with this action is denied in all respects. See the opposing affirmations by Mr. Wingertzahn and Mr. Berinato.
The aforementioned order to show cause appeared on the undersigned's motion calendar for April 12, 2012, together with a motion to dismiss the complaint by defendant Helen Bogdanos and a cross motion for similar relief by defendant Ashraf Corporation. The motion and cross motion to dismiss were adjourned to May 17, 2012, and a briefing schedule was set. Counsel for all of the several parties in the present Supreme Court action appeared in Court on April 12, 2011.
The present order to show cause was marked "Fully Submitted," and the Court, after reflection, declined to extend the stay signed by Justice Allan B. Weiss, pending the hearing of the order to show cause. This decision was expedited in order to facilitate any remedy that plaintiff's counsel may wish to pursue.
The action in Civil Court is by the landlord for holdover. According to the landlord's counsel, the trial before Judge Terrence O'Connor has been adjourned several times and is scheduled to be held on Wednesday, April 18, 2012. The landlord has not been paid rent for the past nine months, and Stephen Holihan, Esq., of Holihan & Associates, P.C., the tenant's counsel, does not deny that fact. [*2]
In support of extending and continuing the stay, Mr. Holihan argued that, under the commercial lease, his law firm's client, the tenant - - who is the plaintiff in this Supreme Court action - - is barred from maintaining any counterclaims, thereby mandating the relief urged of consolidation of the Civil Court action with the present action and extension of the stay contained in the order to show cause.
The tenant's complaint maintains only two causes of action - - both seeking only money damages - - and is presented in barebones form, with no specifics, and is presented against multiple parties, including the designer, architect, and engineer of the space that the tenant has been occupying and continues to occupy, while not paying rent. This present action by the plaintiff, the commercial tenant, will involve significant and "extensive discovery" - - a fact admitted by plaintiff's counsel in his supporting affirmation. Moving/supporting affirmation of Mr. Kauke, para. 5.
Under the aforementioned facts, for this Court to stay the trial of the Civil Court action, during the period of "extensive discovery" will involve significant prejudice to the landlord. In contradistinction to the prejudice to the landlord, the two causes of action by the tenant maintained in this action both seek only money damages. The plaintiff will thus not sustain any irreparable harm during the litigation.
The plaintiff's order to show cause for consolidation and other relief is thus denied in its entirety. All prior stays and restraints are vacated.
The foregoing constitutes the decision, order, and opinion of the Court.
______________________________Hon. Charles J. Markey
Justice, Supreme Court, Queens County
Dated: Long Island City, New York
April 13, 2012