Gristede's Operating Corp./Namdor Inc. v Centre Fin. LLC

[*1] Gristede's Operating Corp./Namdor Inc. v Centre Fin. LLC 2007 NY Slip Op 52444(U) [18 Misc 3d 1107(A)] Decided on December 13, 2007 Supreme Court, Nassau County Austin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2007
Supreme Court, Nassau County

Gristede's Operating Corp./Namdor Inc., Plaintiff,

against

Centre Financial LLC, Defendant.



9371-07



Counsel for Plaintiff

Finkel, Goldstein, Rosenbloom & Nash, LLP

26 Broadway - Suite 711

New York, New York 10004

Counsel for Defendant

Lazer, Aptheker, Rosella & Yedid, P.C.

Melville Law Center

225 Old Country Road

Melville, New York 11747

Leonard B. Austin, J.

Plaintiff Gristede's Operating Corp./Namdor Inc. ("Gristede's") moves pursuant to CPLR 2221(d) for leave to reargue its prior motion for a Yellowstone injunction and

Defendant's prior motion to stay the pending arbitration pursuant to CPLR 2221(e) as decided in this Court's order dated August 16, 2007.

BACKGROUND[*2]

Pursuant to the order of this Court dated August 16, 2007, Gristede's motion for a Yellowstone injunction was denied and Defendant's motion to stay arbitration in the matter between the parties bearing American Arbitration Association No. 13115E0070307 was granted. The subject arbitration was stayed pending further order of this Court.

Notwithstanding Plaintiff's failure to include copies of the papers submitted on its motion for which reargument and renewal are sought, the Court has considered the arguments advanced and, in the interest of judicial economy, reached the following decision.

Gristede's contends, in support of reargument, that (1) the Yellowstone application was timely brought on May 30, 2007; (2) the Court overlooked its continuing rights to cure after the May 25, 2007 notice of termination; and (3) the Court failed to properly analyze the ramifications of the subject notice which, according to Plaintiff, constituted the first time the Defendant landlord indicated an intention to terminate the lease. Specifically, Plaintiff claims it had a continuing right to cure its noticed defaults up until at least June 11, 2007.

DISCUSSION

A.Reargument

A motion to reargue is addressed to the discretion of the court and is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied a controlling principle of law. CPLR 2221(d)(2). It is not designed as a vehicle to afford the unsuccessful party an opportunity to argue once again the very questions previously decided. Gellert & Rodner v Gem Community Mgt., Inc., 20 AD3d 388 (2nd Dept. 2005). Nor is it designed to provide an opportunity for a party to advance arguments different from those originally tendered (Amato v Lord & Taylor, Inc., 10 AD3d 374, 375 [2nd Dept. 2004]) or argue a new theory of law or raise new questions not previously advanced. Levi v Utica First Ins. Co., 12 AD3d 256, 258 (1st Dept. 2004); and Frisenda v X Large Enterprises, Inc., 280 AD2d 514, 515 (2nd Dept. 2001).

Here, the same arguments advanced in support of reargument were made by Plaintiff in support of its original motion, considered by the Court and rejected in a detailed decision. Plaintiff has failed to demonstrate facts which the Court overlooked or law it misapplied. Plaintiff's request to reargue must, therefore, be denied.

B.Yellowstone Injunction

It is undisputed that Plaintiff was advised by letter dated May 3, 2007 (Notice of Defaults) of its defaults with regard to specific lease provisions. As pointed out by Defendant, this notice was not a rent demand in anticipation of a statutory non-payment proceeding but a notice of default pursuant to the negotiated terms of the lease ( § 16.01) as a predicate to the accrual of a defined "Event of Default." With respect to the defined events of default, as outlined in Defendant's May 3, 2007 Notice of Defaults, the relevant cure periods provided in the lease expired prior to May 25, 2007. Plaintiff was informed by letter dated May 25, 2007 that Defendant was availing itself of its right to terminate the lease (§ 16.03). Any claim that Plaintiff was unaware of the landlord's [*3]intention to enforce its Notice of Default flies in the face of Defendant's faxed May 16, 2007 response to Plaintiff's May 10, 2007 letter wherein Defendant rejected Plaintiff's claimed non-default, reiterated its intention to terminate the lease and deemed the defaults continuing.

There is no basis for a Yellowstone injunction where it is sought after the expiration of the cure period or after service of the notice of termination. Goldstein v Kohl's,16 AD3d 622, 623 (2nd Dept. 2005); Gihan, LLC v 501 Second Street, LLC, 306 AD2d 376 (2nd Dept. 2003); Waver v Essex Owners Corp., 235 AD2d 369, 370 (1st Dept. 1997), lv. app. dism. in part, den. in part, 89 NY2d 1073 (1997); R.P.S.P. Pasta Corp. v Tor Valley Inc., 229 AD2d 783, 784 (3rd Dept. 1996); and Rappa v Palmieri, 203 AD2d 270 (2nd Dept. 1994). As was held in First National Stores v. Yellowstone Shopping Center, 21 NY2d 630 (1968), a commercial tenant is entitled to injunctive relief restraining a landlord from terminating a lease upon a showing that such relief is sought prior to expiration of the tenant's cure period and prior to the issuance of a notice of termination from the landlord. Here, it is undisputed that Gristede's failed to seek Yellowstone relief prior to the specified cure periods set forth in the lease and delineated in Defendant's Notice of Defaults. Plaintiff has offered no authority to support the proposition that the absence of a conditional limitation in a lease makes a termination notice the triggering event for Yellowstone relief.

Under Yellowstone, the tenant must also convince the court of its desire and ability to cure. Here, the parties' stipulation of August 1, 2007, executed without prejudice to their respective rights, which permitted Plaintiff to make, and Defendant to accept, rent payments during the pendency of this action, cannot serve to satisfy the willingness to cure component of the Yellowstone criteria which Plaintiff failed to address in its original submissions. Under these circumstances, Plaintiff's contentions that it had a continuing right to cure its defaults until at least June 11, 2007, and its Yellowstone application was timely brought on May 30, 2007, are untenable. Nor is there any basis to reimpose the temporary restraining order extending and tolling its time to cure its defaults as Plaintiff requests. The tenant in this case has failed to fulfill any of the prerequisites for obtaining the requested injunctive relief or to show any manner in which this Court misapprehended the relevant facts or misapplied the controlling principles of law in reaching its original decision. Thus, reargument must be denied.

C.Renewal

In general, a motion for leave to renew must be based upon new or additional facts which, although in existence at the time of the original motion, were not made known to the party seeking renewal and, therefore, were not known to the court. CPLR 2221(e)(2), (3); and Shapiro v. State, 259 AD2d 753 (2nd Dept. 1999). Leave to renew is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion. Orange and Rockland Utilities, Inc. v. Assessor of Town of Haverstraw, 304 AD2d 668, 669 (2nd Dept. 2003). Although leave to renew may be granted at the trial court's discretion, even where the additional facts were known to the party seeking renewal at the time of the original motion (Daniel Perla Assoc. v. Ginsberg, 256 AD2d 303 [2nd Dept. 1998]), leave to renew should be denied unless the moving party offers a reasonable excuse as to why the additional facts were not submitted on the original application. Governmental Employees Ins. Co. v. Woney, 293 AD2d 539 (2nd Dept. 2002).

Gristede's request for renewal is predicated on evolving events relative to the status of the case; to wit: that a second day of hearings was conducted by the arbitrator on August 13, 2007, [*4]four days before the proceedings were stayed by order of this Court, and prior to submission of post-hearing briefs and issuance of an award, is not a sufficient basis to warrant renewal of Defendant's successful motion to stay the pending arbitration. Nothing in Plaintiff's motion papers, however, changes the fundamental fact that, pursuant to lease § 11.01(e), the absence of defaults, both at the time a request for approval of an assignment is sought and at the time the assignment is executed, is a precondition to the right of assignment.[FN1] Until the issue of Plaintiff's purported default under the lease is resolved, arbitration on the issue of the reasonableness of Defendant's refusal to approve the proposed assignment of the lease is best held in abeyance.

Accordingly, it is,

ORDERED, that Plaintiff's motion for reargument and renewal of this Court's order of August 16, 2007 is denied.

Dated: Mineola, NY_____________________________

December 13, 2007Hon. Leonard B. Austin, J.S.C. Footnotes

Footnote 1:§ 11.01(e) of the lease states that: "[a]t the time of any assignment or subletting, and at a time when Tenant requests Landlord's written consent thereto, this Lease must be in full force and effect, without any breach or default thereunder on the part of Tenant."