Greece Park Realty, LLC v ABC, LLC

[*1] Greece Park Realty, LLC v ABC, LLC 2004 NY Slip Op 51586(U) Decided on December 7, 2004 Supreme Court, Monroe County Siracuse, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 7, 2004
Supreme Court, Monroe County

Greece Park Realty, LLC, Plaintiffs,

against

ABC, LLC, China Buffet of Greece, Inc., and Peter Sun, Defendants.



2004/6959



APPEARANCES:Knauf Shaw LLP (Alan Knauf, of counsel), attorneys for plaintiff

975 Crossroads Building

2 State Street

Rochester, New York 14614

Fix Spindelman Brovitz & Goldman (Norman Spindelman, of counsel), attorneys for defendants

295 Woodcliff Drive

Suite 200

Fairport, New York 14450

Andrew V. Siracuse, J.

This is the third motion to come before the court concerning a proposed Chinese buffet restaurant in a plaza where Greece Park Realty leases space. The court has previously reviewed the zoning and environmental determinations made by the Town of Greece upon the restaurant owner's application. In the second of two decisions on this Article 78 proceeding the court dismissed the claims against the Town. The petitioner's papers also stated a contract claim against ABC, LLC, however, and the court therefore severed those issues and allowed Greece Park to proceed as a plaintiff in a plenary action. Defendant ABC has now moved to dismiss the action based on [*2]documentary evidence, and in the alternative has moved for summary judgment. Greece Park has cross-moved for summary judgment. The court finds for the defendant; the right claimed by the plaintiff cannot be shown to exist in any of the documents that created the relationship between the two parties.The entire thrust of the plaintiff's argument is that the leasing of space to China Buffet results in a demand for parking that exceeds the number of spaces available in the plaza. The complexity of the case arises from the fact that the plaza in question has three different owners. Each owner has title to a number of potential storefronts and to a section of the parking area, and by an agreement among the three owners (referred to in the papers as the "Easement with Covenants, Conditions and Restrictions" or "ECCR") each one's storefronts must be "self-sustaining"—in other words, they must have sufficient parking spaces available in their own section of the lot for the tenants they lease to.The lease that Greece Park signed with ABC assigns to Greece Park all the rights and obligations of the ECCR. Greece Park relies on this assignment to support its action. It claims that ABC is violating the ECCR by leasing to China Buffet, whose parking needs will be significantly in excess of what remains available on ABC's part of the lot.The defendants argue that because the separate parking areas are not delineated in the plaza itself the ECCR is unenforceable; there is no way to stop cars from parking in the "wrong" part of the plaza. This argument has at least two flaws. The first is that it misconstrues the way the ECCR functions. The covenant addresses the parking problem by limiting the expected demand for parking. Recognizing the impossibility of checking where the passengers of cars parked in this or that area are shopping, it attempts to control the aggregate number of cars that are competing for parking spaces by limiting the businesses in the plaza to those whose parking needs can be met with the available space. Because the three owners can be responsible only for their own tenants and their own parking spaces, this restriction must necessarily be framed in terms of each parcel's being self-supporting.The other error in the defendants' argument reflects the same confusion that plagues the plaintiff's. It assumes that the ECCR grants rights which should be enforceable against non-parties—in this case, the visitors to the plaza. An agreement among the three plaza owners cannot, however, affect the conduct of others. The power to remove improperly parked cars, one rarely if ever exercised, arises from the cars' being parked on the owner's land and the owner's virtually unlimited power under common law to control who may occupy that land. It does not derive from an agreement with other owners.The plaintiff, in turn, argues that ABC's assignment gave Greece Park the power to compel its own landlord to adhere to the ECCR. The fundamental error in this argument—and it is very fundamental indeed—is [*3]that it takes a limited power, names it a right, and claims that it can be enforced against all the world. This is essentially what the defendants do when they assume that the rights established by the ECCR must be enforceable against shoppers or be altogether useless.It is an error to treat the notion of "right" as if it were a sort of metaphysical entity with its own power to command. We are concerned with rights under law, and these must be created by statute, custom or contract. From this point of view a "right" is nothing other than a concession of authority—an enforceable limitation of someone else's power. The civil rights protected by the fourteenth amendment, for example, are limitations on others' power to make renting and commerce decisions—among others—on the basis of race, and they are living rights because our courts will let me enforce them against those who try. The fourth amendment's protection against unreasonable search and seizure is enforced in a different way: the exclusionary rule negates the effects of state action that is deemed to violate it. The attempted exercise of power that exceeds the bounds of the permissible is thus nullified; it is not allowed to affect the outcome of a trial.The reason that there is no right without a remedy is that the remedy is the right. Law, like nature, abhors a vacuum, and thus whatever powers are surrendered by the grantee delineate the exact space which the "right" rushes in to fill. Rights are thus as various as powers, but the scope of different rights is not found out by analyzing the concept of right or through some classification of "species" of rights within a "genus." Instead, we define the boundary of a given right by looking at the grant or successful assumption of power out of which the right arises.Put this way the question raised by this case can be easily resolved. The plaintiff's argument fails for two reasons. The first is that ABC does not have the power to compel itself, and could not therefore assign such authority to Greece Park. More to the point, the mere assignment of contractual rights with respect to third parties cannot be interpreted as giving Greece Park any right to sue its lessor. Leases are contracts, and contracts set out each parties' authority to compel the others. In return for rent and other obligations the lessor concedes certain powers to the lessee, beginning with the power to bar the lessor's interference with the lessee's occupancy except on specified conditions. (The ancient writ of ejectment was an early embodiment of this particular right.)Nowhere in the lease at issue does the lessor grant the lessee the power to control ABC's conduct with respect to the parking requirements of other lessees. Similar grants exist in other leases and are most frequently concerned with types of business. For example, a shoe store in a mall may be able to secure a clause limiting the landlord's power to lease to other shoe stores, and a children's clothing store may wish to keep the owner from renting an adjacent space to a bar.[*4]In these cases the limitations are bargained for and expressed openly. Alternatively, a statute may confer certain powers on parties. Today's law of corporations permits shareholders to maintain derivative actions against the corporation of which they are part owners. No such statutory grant exists here, of course; nor can simple assignment of an easement be construed as a concession of power over the lessor's conduct.The only cognizable claim the plaintiff could make is in the manner of an estoppel. In such a case the plaintiff would have to show that it had entered into the lease based on assurances that the ECCR would be complied with in subsequent leasing decisions, and that it was harmed by its reliance on these assurances. Quite aside from the evidentiary problems that such an argument would present, it is clear that the plaintiff would not be able to show detrimental reliance; its own papers show that at the time Greece Park entered the lease the other ABC lessees had parking needs that exceeded the available spaces by 282.There is no authority in the lease or elsewhere for the plaintiff's action. The plaintiff does not have the power under the lease to control the lessor's compliance with the ECCR. The action must therefore be dismissed for failure to state a claim, and the defendants' attorneys may prepare an order to that effect, with a single bill of costs. DATED: Rochester, New York____________________ December 7, 2004Andrew V. Siracuse, J.S.C.