Bon LLC v Fook Luk Realty Inc.

Bon LLC v Fook Luk Realty Inc. 2015 NY Slip Op 04222 Decided on May 14, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 14, 2015
Friedman, J.P., Saxe, Richter, Manzanet-Daniels, JJ.
15127N 159575/14

[*1] Bon LLC, Plaintiff-Appellant,

v

Fook Luk Realty Inc., Defendant-Respondent.

Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for appellant.

Barry J. Yellen, New York, for respondent.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered November 6, 2014, which denied plaintiff tenant's motion for a preliminary injunction seeking to compel defendant landlord to remove obstacles to obtaining a certificate of occupancy by constructing a second means of egress for the building's upper floors, and to consolidate the Civil Court non-payment proceeding with this action, unanimously affirmed, without costs.

Although the lease does not require defendant to obtain a certificate of occupancy or create a second means of egress, it states that the premises are to be used by plaintiff as a "[r]estaurant/bar with right to have a cabaret when cabaret license[] is issued." Plaintiff, seeking to compel defendant to cure these deficiencies so as to enable the lawful operation of a cabaret, relies on the principle that, " when premises are leased for an expressed purpose, everything necessary to the use and enjoyment of the demised premises for such expressed purpose must be implied where it is not expressed in the lease'" (Second on Second Café, Inc. v Hing Sing Trading, Inc., 66 AD3d 255, 256 [1st Dept 2009], quoting Gans v Hughes, 14 NYS 930, 931 [Brooklyn City Ct 1891]). While that is accurate as a general statement of the law, we agree with the motion court that, under the particular circumstances of this case, and as the record now stands, defendant is apparently "unable to create a second means of egress for the upper floors." Therefore plaintiff has not shown a likelihood of success on the merits at this stage.

Finally, in a commercial lease such as this, where the tenant has contractually agreed not to interpose counterclaims in a summary proceeding, this provision of the lease may not be circumvented by consolidating the summary proceeding with a Supreme Court action for damages (see 107-48 Queens Blvd. Holding Corp. v ABC Brokerage Inc., 238 AD2d 557, 557 [2d Dept 1997]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 14, 2015

CLERK