T-Mobile Northeast LLC v Jomel Assoc., Inc.
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T-Mobile Northeast LLC v Jomel Assoc., Inc. 2016 NY Slip Op 30610(U) April 6, 2016 Supreme Court, New York County Docket Number: 653339/14 Judge: Joan M. Kenney Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PART: 8 ------------------------------------x T-MOBILE NORTHEAST LLC, Index # 653339/14 Plaintiff, -against- Decision & Order JOMEL ASSOCIATES, INC., Defendant. ------------------------------------x KENNEY, JOAN, M., J.S.C. For Plaintiff: Rapaport Law Firm, PLLC 350 Fifth Avenue, Suite 4400 Connell Foley LLP New York, New York, (212) For Defendants: 888 Seventh Avenue, New York 10118 382-1600 1212) gt.h Floor NY 10106 307-3700 Papers considered in review of this motion seeking a Yellowstone injunction: Papers· Numbered Order to Show Cause, Affirmation, Affidavits, Exhibits and Memorandum of Law 1-20 Affidavit in Opposition, Exhibits and Memorandum of Law 21-35 Notice of Motion, Affidavit in Support, Affirmation in Support, Exhibits and Memorandum of Law 36-47 Affirmation, Affidavit in Opposition to Cross Motion, Exhibits and Memorandum of Law Reply Affirmation and Memorandum of Law 48-53 54-55 Motion sequen~es Plaintiff Yellowstone 001-002 are consolidated for decision. moves, by injunction Order seeking To to Show toll Cause the (OSC), period for to a cure plaintiff's alleged violations of the commercial lease (the lease), attendant to part of the roof, York, NY (the premises). premises for the use equipment. The parties' located at 1589 Second Avenue, New Plaintiff rents space on the roof of the and maintenance of its telecommunications lease, has been amended three times since its original execution on January 24, 1997, expires by its own terms 2 of 12 [* 2] on January 31, 2027. The first amendment was signed by the parties on or about May 20, 2002. Plaintiff sought additional space to do so amendment weight the (from 80 sq. its equipment ft. and needed to 14 0 sq. ft.) inter alia, stated, of to upgrade that plaintiff affirmed equipment does not new exceed capacity of the rooftop of the building." the The that load "the bearing Attached and made a part of the amendment, are schematic drawings of the layout of the roof, indicating relation the location to the Additionally, the reimburse cause, Lessor which may and placement increased first for square amendment any and all occur or arise of the footage states or in acquired. plaintiff lessee the equipment, being that damages during new it's installation "shall agents of the [e]quipment." The second amendment, amount of rent which due at started dated November 30, "the commencement of February 1, 2007. 2006, the The changed the [r] enewal rent [t] erm increased to $3,800.00 per month. The third amendment, dated on or about November 30, 2011, gave plaintiff a right to extend the lease for "one (1) additional ten (10) year term (Second Renewal Term)." Plaintiff was also granted an option to extend the lease for five years thereafter, for a total of 15 years. This amendment also included a one time lump sum payment of $1,000.00, to defendant as consideration for the "necessary" work associated with the "upgrade of transmission lines, 2 3 of 12 " The work to [* 3] be done states "AC CUBE Swap-out. TMO to continue 2" Teleco conduit to be at minimum 20' above grade." 1 Paragraph 9 of the lease requires: "[plaintiff] to indemnify and hold [defendant], it's agents, employees and officers harmless from and against any and all claims, actions, losses, damages, costs and expenses including but not limited to reasonable attorneys' fees arising out of or in connection with ... directly relating to the installation,. operation, maintenance, and removal of [plaintiff's] equipment ... Paragraph 13 of the lease states in pertinent part as follows: "[If [plaintiff] fails to make its rental payment and any additional "Rents" when due and does not cure s~ch failure within ten (10) days of [defendant's] notice thereof either party shall have the right to terminate on written notice to take effect immediately if the other party (I) fails to perform any other covenant for a period of forty-five I 4 5) days after receipt of said notice Paragraph 15 of the lease is the Notice provision, and states in its entirety as follows: "Unless otherwise provided herein, any notice or demand required to be given herein shall be given by certified or registered mail, return receipt requested or reliable overnight courier to the address of Lessee and Lessor ~s set forth below." In pertinent part, Paragraph 13 of the lease provides that: 1 All three amendments incorporate, by reference, all of the terms and conditions of the original lease. 3 4 of 12 [* 4] "[Defendant] shall have the right to terminate this Agreement by written not~ce to take effect immediately if [plaintiff] f~ils to make its rental payment and any additional "Rents" when due and does not cure su''ch failure within ten (10) days of [defendant' sli notice thereof. On or about October 15, 2014, defendant sent a letter, plaintiff claims constitutes a "notice plaintiff's employee demanding that to "pla~ntiff cure," that addressed to repair and stabilize the parapet and roof" of the premises on br before October 31, 2014, or defendant would seek to terminate the lease." The Court is willing to accept the aforedescribed letter, as a notice to cure in ', accordance with the terms of the lease (:Paragraph 13). is clearly "threatening" plaintiff's The letter ten~ncy. It is undisputed that for nine months prior to the service of the alleged notice to cure, the parties were discussing the alleged !\ cause(s) of the deterioration of correspondence and electronic mail. parties, which include argues wall(s) in the parapet that the roof, via The ,:communications between the the exchange of plaintiff's essence, and paid expert det~rioration of the report parapet and roof was due to defendant's,failure to maintain these parts of the building. In response, def~ndant produced photographs of the equipment, parapet walls and the'roof of the building that indicate otherwise. motion, the Based upon the papeis before the Court on this it is unclear what the alleged cause of the problems with roof and the parapets, is as of this writing. Notably, plaintiff does not deny the ability or an:unwillingness to assist in correcting the troubles alleged in the potice to cure. 4 5 of 12 However, [* 5] defendant affirmatively states that it is not seeking to terminate plaintiff's lease based upon the letter ~his Court has determined to be a notice to cure. Defendant, the o0ner of the premises since 1972, contends that it is not seeking t:O end plaintiff's tenancy, and argues that "[i]n reality, parapets without [defendan~] [plaintiff's] is not able to repair the active participation and contributions ... Discussion Motion Seq. 001 "The purpose of a notice to cure is ~o specifically apprise the tenant of claimed defaults in its obligat~ons the forfeiture and termination of the le~se is not cured within a set period of time. under the lease and of if the claimed default 542 Holding Corp. v Prince Fashions, Inc., 46 AD3d 309 (l" Dept 2007). First Nat. Stores, Inc. v Yellowsto~e Shopping Ctr., Inc., 21 NY2d 630 (1968), and its progeny establi~hed a four prong test for ,, determining whether a "Yellowstone" inj~nction should be granted. The requirements for obtaining Yellowstone relief are as follows: ( 1) plaintiff holds a commercial lease, a notice to cure, (3) (.2) the landlord has served the referenced cure period has not expired, and (4) plaintiff has to demonstrate an ability and willingness to "cure." ERS Enterprises, Inc. v Empire Holdings, LLC, 286 AD2d l" Dept 2001); (2°d 206 Purdue Pharma LP v Ardsley Partners, LP, 5 AD3d 654 Dept 2004). 5 6 of 12 [* 6] A Yellowstone injunction maintains the status quo so that a commercial tenant, when confronted by a tchreat of termination of its lease, .may protect its investment in th~ leasehold by obtaining a stay tolling the cure period so that up~n an adverse determination on the merits the tenant may cure the default and avoid a forfeiture of the lease (Post v 120 E. End Av. Corp'., 62 NY 2d 19, 26 [1988]). Addi tiona·lly, the very nature of this kind of injunction is designed to "forestall the cancellatiod of a lease to afford the tenant an opportunity to obtain a breach, judi,cial determination of its the measures necessary to cure it, and those required to bring the tenant in future compliance w~th the terms of the lease (see, Waldbaum, Inc. v Fifth Ave. Realty Assocs., 85 Prince Fashions, Inc., 46 of Long Is. NY2d 600, 606 [1995]; 542 Holding Corp. v AD3d 309 [l't Dept 2007]). To obtain likelihood Imperial of Yellowstone success Ferry Corp., on relief the a :tenant merits 307 AD2d 234, need [;(WPA/Partners 237 [l't not show LLC v Dept 2003]). a Port It can simply deny the alleged breach of its lease (see Boi To Go, Inc. v Second 800 No. v 2 LLC, 58 AD3d 482 [l't Dept 2009]; Artcorp Inc. Citirich Realty Corp., 124 AD3d 545, 546: [l" Dept 2015]). Yellowstone relief is available to ~rotect against leasehold forfeiture, provided that the tenant ha's the ability to cure by means short of vacatur in the event the, tenant is found to be in default of its obligations under a leas~ 6 7 of 12 (Post v 120 E. End Ave. [* 7] 62 NY2d 19, 25 [1984)). Corp., This rationale is in line with this State's public policy against the forfeiture of leases (see Sharp v Norwood, 223 AD2d 6, 11 [1996), affd. 13 89 NY2d 1068 [1997)). This disinclination against leasehold forfeitures serves to promote the economy and business in our City. In addition, it promotes beneficial services in circumstances such as those presented here, where tenant is a telecommunications company that provides among other things, basic telephone service and emergency service ( 911 calls) for its customers. This public policy concern tenant has asserted that it takes will on greater dilj;gently and weight in when good a faith attempt to cure the defect, but through no inaction of its own, can not do so without the cooperation of defendant Co. v. Oppenheim, Appel, Dixon & (see Oppenheimer & Co., 86 NY2d 685, 695 [1995) [equity may intervene to relieve ( ... ) against ... forfeitures of valuable lease terms when default in notice has not prejudiced the landlord), quoting Jones v Gianferante, 305 NY 135, 138 [1953); J.N.A. Realty Corp. v Cross Bay Chelsea, Adler, 187 AD2d 647, 42 NY2d 392, 648 [l" Dept 1992) 397 [1977); Weissman v ). The Court of Appeals has acknowledged that courts routinely grant Yellowstone relief to reflect this State's policy against forfeiture, and courts have done so by accepting "far less than the normal showing required for preliminary injunctive relief" (Post, 62 NY2d at 25). 7 8 of 12 [* 8] A Yellowstone injunction to stay proceedings in response to landlord's notice to cure is a provisio~al remedy, and the purpose 'I of interlocutory relief is not to determine the ultimate rights of the parties but to maintain the status quo until a full hearing on i the merits can be held. 297, 306 [4'h Dept (see Gambar Ente~s. v Kelly Servs., 69 AD2d ,, 1979]; 2914 ~portswear Third Realty Corp. v. Acadia 2914 Third Ave., LLC, 93 AD3d 573, 573 [1" Dept 2012]; Vill. Ctr. for Care v Sligo Realty & Serv. Corp., 95 AD3d 219, 222 [1" Dept 2012]). Plaintiff has shown that it is and it has the ability prep~red to assist in curing the alleged defaults (Aegis Holding Lipstick LLC, v Metropolitan 885 Third Avenue Le~sehold LLC, and CB Richard Ellis, Inc., 95 AD3d 708 [l" Dept 2012]) .: .Consequently, and for the reasons set forth herein, the motion is granted. Motion Seq. 002 "On a motion to dismiss pursuant to.,CPLR 32ll(a) (7), the court accepts as true the facts as alleged in q1e complaint, affidavits in opposition to the therefrom, accords motion, the whatever plaintiff favorable inference, and then can the be benefit determine~ reasonably of every inferred possible only whether the facts as alleged, manifest any cognizable legal theory" (Elmaliach v Bank of ,., China Ltd., 110 AD3d 192 [l" Dept., 2013]l). The pleadings are to be afforded a "liberal construction," Leon :'v Martinez, (1994) . 8 9 of 12 84 NY2d 83, 87 [* 9] "The motion must be denied if from the pleadings' four corners, factual allegations are discerned which taken together manifest any cause of action omitted] . " cognizable Richbell Info. at law [internal quotation marks Inc. 'i v Jupiter Partners, Servs., L. P., 309 AD2d 288, 289 (l'" Dept 2003), quoting 511 W. 232nd Owners Corp. 98 NY2d 144, 151-152 v Jennifer Realty Corp., 43 NY2d 268, v Ginzburg, whether a plaintiff 275 will [1977]). (2002); Guggenheimer •Thus, ultimately "[t] he issue is not prevail, but whether the claimant is entitled to offer evidence ttj support the claims." (Id.) In determining a motion to dismiss a complaint or counterclaim pursuant to CPLR 3211 (a) (7), the coµrts role is limited to determining whether the complaint statesia cause of action (Frank v DaimlerChrysler Corp., 292 AD2d 118, 120:_121 [1st Dept 2002]). court does not plaintiff's inquire allegations whether there 292 (Frank, is evidence AD2d at 121), to or The support weigh the plaintiff's chances of ultimate success (EEC I, Inc. v Goldman Sachs & Co., 5 NY3d 11, 19 [2005]). When motion, evidence evidence dismissal utterly is will submitted be refutes pursuant "granted to orily a where plaintiff's CPLR the factual 3211 (a) (1) documentary allegations, conclusively establishing a defense as a matter of law" Mutual Life Ins. Co. of N. Y., 3211 plaintiff's motion, pleaded a complaint and 98 NY2d 31:4, 326 [2002]). affidavit preserve a may claim 9 10 of 12 remedy from an (Goshen v On a CPLR inartfully dismissal, but a [* 10] defendant's affidavit will seldom defeat a claim (Rovella v Orofino Realty Co., 40 NY2d 633, 636 [1976]). "When the moving party [seeks dismissal and] offers evidentiary material, the court is required to determine whether the proponent of the [complaint] has a cause of action, not whether [he or] has stated one." Asgahar v Tringali Realty Inc., (2"d Dept 2005) (citation omitted). she 18 AD3d 408, 409 If the complaint's allegations consist of bare legal conclusions and "documentary evidence flatly contradicts the factual claims, the entitlement to the presumption of truth and the favorable inference is rebutted." Atlantic Corp., 282 AD2d 180, 183 (1 5 ' Dept 2001). Scott v Bell Plaintiff has not provided the Court with any documentary evidence that would dispose of the controversy. The only document the parties can rely upon is the lease for the premises. Most compelling is the indemnification provision of the lease (paragraph 9), which is recited in its entirety herein. This Court is taking notice of the fact that the lease pertinent to this matter is not a Real Estate Board of New York standard form lease and it is clearly prepared by plaintiff. Additionally, the usual Real Estate Board of New York standard form lease includes waivers of both jury trials and the interposition of any counterclaims. clauses. The instant lease is devoid of any of these The contract speaks for agreement are clear. itself, and the terms of the Discovery has not been completed and much more 10 11 of 12 [* 11] has to be determined through that process. Consequently, the motion to dismiss is denied. Either party make seek dispositive relief after the note of issue in this m9tter is filed. As a consequence of the indemnification provision contained in the lease, and the contradictory proofs submitted by the parties, it seems that problems ~n both each violations have caused and/or the complicated the the roof and parapets. For the shall sides reasons, bear and half set of forth the deterioration herein, costs of the plaintiff and defendant necessary leased to correct premises (roof the and parapets). Accordingly it is, ORDERED that the Yellowstone injunction is granted; and it is further ORDERED that the motion to dismiss is denied; and it is further ORDERED that plaintiff and defendant shall each bear half of the costs necessary to correct the violations and deterioration of the leased premises (roof and parapets) . Dated: April 6, 2016 E N T E R: Hon. Joan M. Kenney J.S.C. 11 12 of 12
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