Community Resources & Servs. for Children, Inc. v NRP LLC II

Annotate this Case

Download PDF

Community Resources & Servs. for Children, Inc. v NRP LLC II 2017 NY Slip Op 32520(U) November 21, 2017 Supreme Court, New York County Docket Number: 650993/2017 Judge: David B. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 11/30/2017 09:15 AM 1] NYSCEF DOC. NO. 50 INDEX NO. 650993/2017 RECEIVED NYSCEF: 11/30/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DAVID BENJAMIN COHEN PART Justice 58 --- ------7----------------------------------------------------------------------~-----X COMMUNITY RESOURCES AND SERVICES FOR CHILDREN, INC;, I INDEX NO. Plaintiff, MOTION DATE MOTION SEQ. NO. -v- 650993/2017 4/24/2017 001 NRP LLC II, HAMILTON PARK ASSETS LLC DECISION AND ORDER Defendant. ------~----------------------------------------------------------------------'------X I I 'I Theifollowing e-filed documents, listed by NYSCEF document number 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 44, 45,46,47,48,49 were read on this application to/for . DISMISSAL Upon the foregoing documents, it is . Defendant Hamilton Park's motion to dismiss is granted. The cross-motion brought by defendant I NRP. is also granted and the matter is dismissed. The Complaint alleges that plaintiff and NRP entered into a five-year lease in 2008. That the lease expired pursuant to its terms in 2014 and I ' plaintiff had a month-to-month tenancy. That in April 2016, after learning that pursuant to the I ' Certificate of Occupancy that the leased premise was supposed to remain vacant, plaintiff ended the tenancy and vacated the leased premise. However, plaintiff has still been billed for several months rent following April 2016. The Complaint seeks a declaratory judgment that due to the i impossibility of performance under the lease by landlord, the lease was terminated on April 1, 2016 and it does not owe any rent for any months after April 2016; a preliminary injunction 650993/2017 COMMUNITY RESOURCES AND vs. NRP LLC II Motion No. 001 1 of 4 Page 1of5 [*FILED: NEW YORK COUNTY CLERK 11/30/2017 09:15 AM 2] NYSCEF DOC. NO. 50 INDEX NO. 650993/2017 RECEIVED NYSCEF: 11/30/2017 prohibiting defendant Hamilton from seeking to enforce its right to collect the rent; and damages from each defendant for breach of contract and for br~ach of the implied warranty of good faith and fair dealing; 1 and for legal fees in connection with this action. Plaintiff's first cause of action seeks a declaration that the lease ended on April 1, 2016 after learning that pursuant to the Certificate of Occupancy that the leased premise was supposed to reinain vacant and seeks a declaration that it owes no rent. In Section 40(a), the lease defines I the Permitted Use of the property "solely for a day center for mentally retarded, developmentally disabled persons over the age of eighteen." In Section 41 (b ), plaintiff agreed "that tenant shall, throughout the Term of this Lease, apply for, secure, maintain and comply with all municipal or ,1 government approvals, consents, licenses or permits which may be required for the conduct by 1: l ' . ' I Tenant of the Permitted Use and pay, if, as and when 'due, all license and permit fees and charges 11 . J of a similar nature in connection therewith and provide Landlord with copies thereof upon " . request." Similarly, the lease provided in Section 44 that plaintiff would obtain any licenses and ;] I permits and its own expense to conduct plaintiff's business in the location. The lease also contained many alteration provisions that plaintiff wa~ to perform that all required actions by plaintiff, including filing with the appropriate governh1ental agencies. In other words, by the plain language of the lease, it was up to tenant to ens1;lre that municipal or governmental requirements were met. Applied to the instant cause of action, the Complaint seeks a declaration that the lease was terminated as of the time plaintiff 16arned of the alleged unlawful use of the property and that it was entitled to cancel the lease at ,that time and stop paying rent. However, that is contradicted by the plain language of the lease; Therefore, the first cause of action is dismissed. 1 ~ I Plaintiff has withdrawn its cause of action for breach of warranty as to defendant NRP. 650993/2017 COMMUNITY RESOURCES AND vs. NRP LLC II Motion No. 001 2 of 4 Page 2 of 5 [*FILED: NEW YORK COUNTY CLERK 11/30/2017 09:15 AM 3] NYSCEF DOC. NO. 50 INDEX NO. 650993/2017 RECEIVED NYSCEF: 11/30/2017 i ij The motions seeking dismissal of the request for a preliminary injunction is granted. ' 1 Plaintiff's argued that this cause of action was pled tb prevent defendant Hamilton from ' II :1 collecting rent. As the collection ofrent is not an irr~parable injury, plaintiff cannot maintain this cause of action. Further, plaintiff has not demon~,trated a likelihood of success on the merits I of its complaint. In a commercial lease context, a ten~nt's alleged inability to use the leased prernises for its intended use due to the Certificate ofbccupancy does not relieve tenant's ,, ! r ;i ,, obligation to pay rent for the period of time during which the premises were occupied (Casilia v , :! Web,~ter v LLC, 140 AD3d 530 [1st Dept 2016]; Silver Moe's Pizza, Inc., 121 AD2d 376, 378 [2d :1 '• Dept 1986]). Further, "a commercial lease is not void:lfor illegality merely because the premises is not covered by a certificate of occupancy. The lease will be considered a valid contract if the bar tO legal use of the premises is readily correctible and the language used in the lease indicates ii that the parties intended that the defect be corrected ahd the premises legally occupied" (Kosher . 'i , :r Konvenience, Inc. v Ferguson Realty Corp., 171 ADi~ 650 [2d Dept 1991 ]). This case is unlike a case where a landlord made specific representation that the intended use would comply with the certificate of occupancy or there was a statement that fraudulently induced a tenant to ., execute the lease (see Phillips & Huyler Assoc. v Flynn, 225 AD2d 475 [1st Dept 1996]), here, ther~ is no allegation that such statement was made, ahd in any case, plaintiffs allegation of ·' :I ' ! activ,e concealment is undone by the plain language of the lease. For these reasons, plaintiff's cause of action seeking a preliminary injunction enjoining Hamilton from seeking rent is disn~issed. The basis of plaintiff's breach of contract acti~n is that defendants breached the lease in ;! that defendants failed to provide a space to plaintiff W,hich could be legally used and occupied, which plaintiff could have quietly enjoyed. This caus'e of action is dismissed as plaintiff took 650993/2017 COMMUNITY RESOURCES AND vs. NRP LLC II Motion No. 001 3 of 4 Page 3 of 5 [*FILED: NEW YORK COUNTY CLERK 11/30/2017 09:15 AM 4] NYSCEF DOC. NO. 50 INDEX NO. 650993/2017 RECEIVED NYSCEF: 11/30/2017 possession of the premise and used the premise for the duration of the lease without any issues. Plaintiff received the benefit of its bargain for the entirety of its lease and based upon the allegations of the Complaint, defendants fully performed its obligations to plaintiff during the pendency of the lease. To the extent that the Certificate of Occupancy did not permit plaintiffs intended use, when discovered, plaintiff was a month-to-month tenant and had already received the full benefit of its initial lease. Any funds expended at the beginning of the lease had already received this benefit and were expended beyond the statute of limitations for a breach of I contract. Further, a breach of contract action must be1dismissed when the lease does not require a lan,dlord to obtain a certificate of occupancy that wo.uld permit plaintiffs intended use of the I j ' I ' premises (Rivera v JRJ Land Prop. Corp., 27 AD3d 361 [1st Dept 2006]). For these reasons, the 'i breach of contract cause of action is dismissed. In any event, plaintiff took the leased premise in ii I; ,J "as is" condition and cannot complain now if it had not done its diligence in 2008. Similarly, as ' ·1 detailed above, the plain language of the lease contradicts this asse1iion. It was plaintiffs duty to " ensure that the Permitted Use of the facility compliedwith local rules and laws. For similar ' reasons, the remaining cause of action for breach of the implied warranty is dismissed as is the cause of action for legal fees. Accordingly, it is therefore ORDERED, that the motion and cross-motion.to dismiss this matter are granted and this action is dismissed. ,. This constitutes the decision and order of the Court. ~JAMIN 11/21/2017 DATE NON-FINAL DISPOSITION CHECK ONE: CASE DISPOSED APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: DO NOT POST FIDUCIARY APPOINTMENT GRANTED D DENIED GRANTED JN PART COHEN, J.S.C. D D OTHER REFERENCE HON_ DAVID B. COHEN 650993/2017 COMMUNITY RESOURCES AND vs. NRP LLC II Motion No. 001 4 of 4 ht - .. Ja&jQ,,t 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.