Mini Mint, Inc. v Citigroup, Inc.

[*1] Mini Mint, Inc. v Citigroup, Inc. 2010 NY Slip Op 51565(U) [28 Misc 3d 1231(A)] Decided on August 31, 2010 Supreme Court, New York County Gische, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2010
Supreme Court, New York County

Mini Mint, Inc., Plaintiff,

against

Citigroup, Inc., Defendant.



104944



Appearances of Counsel:

ATTORNEY FOR THE PLAINTIFF :

Firm: JEFFERY S. GOLDBERG, ESQ.

Address : 145 EAST 57TH ST., 5TH FLOOR

NEW YORK, NY

10022

Phone : 212 974-1900

ATTORNEY FOR THE DEFENDANT :

Firm: BORAH GOLDSTEIN ALTSCHULER/ANO by Myron Altschuler

Address : 377 BROADWAY - 6TH FLOOR

NEW YORK, NEW YORK

10013

Phone : 212 431-1300

Judith J. Gische, J.

Defendant moves for discovery sanctions (mot. seq. # 001). Plaintiff has separately moved for summary judgment in its favor (mot. seq. # 002). Defendant then cross-moved for summary judgment dismissing plaintiff's third cause of action for trespass.Since the motions are partially interrelated, the court has consolidated the motions for consideration and determination in a single decision. Issue has been joined and no note of issue has been filed. The motion and cross-motion for summary judgment are, therefore, properly before the court and will be considered on their relative merits. CPLR §3212; Brill v. City of New York, 2 NY3d 648 [2004].

The plaintiff and defendant are respectively the subleasee and subleasor under a written agreement, dated July 11, 2003. ("sublease") for commercial space located on a portion of the first floor in the building located at 399 Park Avenue, New York, New York ( "premises "). The term of the sublease expires September 29, 2022. It is subordinate to and incorporates the terms of an overlease ("lease"). Plaintiff operates a [*2]restaurant known as "Dishes" in the premises.

The parties' dispute centers around a pipe leak that occurred in or about June 2008. Sometime in July 2008, defendant fixed the leak. Defendant then sought to charge plaintiff approximately $13,000 for the cost of that repair. Plaintiff denies that it has responsibility to pay for such pipe repair under the sublease. In addition, it claims that repairs done by defendant were shoddy and, as a consequence, a bathroom in the premises has become unusable. Plaintiff also claims that in making the repairs, defendant entered into the premises without its permission. In its complaint, plaintiff has asserted three causes of action respectively for: [1] a mandatory permanent injunction requiring defendant to repair the bathroom; [2] a declaration that it is/was not obligated to repair and/or pay for the repair of the leak and that the inadequate repairs done by defendant have actually partially evicted plaintiff from the premises and [3] $500,000 in monetary damages for trespass.

Defendant interposed an answer, denying the material allegations of the complaint, asserting nine affirmative defenses and two counterclaims respectively for: [1]the cost of the leak repairs and [2] attorneys fees.

To date, there has been no preliminary conference and, despite service of both a notice and cross-notice for depositions, no discovery. On or about August 20, 2009 defendant served a Demand for a Bill of Particulars. To date, no Bill of Particulars has been served by plaintiff. After defendant made efforts to obtain the Bill of Particulars without success, in December 2009, it made a motion to either compel the Bill of Particulars and/or for more severe discovery sanctions, based upon plaintiff's non-compliance. In January 2010, plaintiff moved for summary judgment. Plaintiff argues that because it is entitled to summary judgment, the motion to compel it to respond to a Bill of Particulars is (or will become moot). Alternatively, it argues that if it is denied summary judgment, the court should direct the parties to appear for a preliminary conference to resolve the outstanding issue of the Bill of Particulars. Plaintiff argues that the Demand for a Bill of Particulars is really seeking discovery and other matter, beyond that which is permissible.

The sublease is subordinate to and incorporates the terms of lease, with Citigroup Inc. substituted for landlord and Mini Mint, Inc. substituted for tenant, at least insofar as the rights and obligations implicated in this case are invovled. The lease provides in pertinent part:

"Tenant, at its expense, shall be responsible for all repairs, maintenance and replacement of wall and floor coverings and doors in and to the Premises and for all the repair, maintenance and replacement of all horizontal portions of the systems and facilities of the Unit and Building within or exclusively serving the premises...to the point at which they connect to the vertical portions of the Building systems, including without limitation the sanitary and electrical fixtures and equipment therein...."Section 13.01

"Tenant shall give Landlord reasonably prompt notice of any defective condition in plumbing...located in, servicing or passing through the Premises of which it has actual knowledge. Following such notice (or following the such earlier time as Landlord obtains actual knowledge of any such defective condition), Landlord shall remedy...the conditions, but at the reasonable expense of Tenant, if Tenant is responsible for same [*3]under the provisions of this Article 13..." Section 13.02.

"Landlord shall give Tenant, not less than thirty (30) (sic) days' prior notice (except in an emergency, in which case Landlord shall give such advance notice, if any, as is reasonable under the circumstances) of any work which the Landlord....proposes to perform in or about the Unit of the Building which would result in the stoppage, interruption or reduction of services to the Premises (except for de minimus stoppages, interruptions or reductions during times other than Business hours) or otherwise reasonably be expected to have an adverse affect on Tenant's use and enjoyment of the Premises." Section 13.04

"If Tenant shall default in the performance of any of Tenant's obligations under this lease, Landlord....without thereby waiving such default, may (but shall not be obligated to ) perform the same for the account and at the expense of Tenant (provided such expense is commercially reasonable), without notice in the case of an emergency and in any other case only if such default continues after written notice and the expiration of the applicable grace period." Section 27.01.

The location of the leak is not really disputed, notwithstanding the parties' dispute about how the location is legally defined. There is a room that is identified as the employee's bathroom in kitchen portion of the premises. There is a floor, below which is a space, and below that is a concrete slab. In the space between the floor and the concrete slab, there is a waste pipe. There is no dispute that the waste pipe was the source of the leak. The waste pipe enters the space from a concrete wall and then proceeds in the space several feet horizontally before it turns down vertically, through the concrete slab. While defendant refers to this "turn" as a connection to the vertical waste system in the building, the photographs provided (which are not disputed) show that it is a continuous pipe that turns downward. After the pipe enters the space through a concrete wall but before it turns downward and exits the space, only fixtures located within the premises are attached to the waste pipe. Once the pipe turns downward and exits the space through the concrete slab, the parties do not dispute that the pipe serves other plumbing fixtures in building that are located below the premises.

Although plaintiff is located on the first floor, there is other occupied space below it. There is also no dispute that the leak manifested itself in the Medical Center located on the floor below plaintiff's restaurant. The parties give somewhat differing accounts of the extent of the leak, but suffice it to say the obvious, that waste pipe drainage leaking into a public location required serious attention.

It took some time and investigation for the parties to discover the source of the leak. They worked cooperatively during this investigation period. Once the source of the leak was discovered, plaintiff made it clear that it did not consider itself responsible to fix the condition. Defendant neither conceded nor refuted plaintiff's position at that time. No formal notices for access were ever sent by the defendant to the plaintiff. There were, however, numerous e-mail communications between the Tony Agazzi, employed by defendant's managing agent, and Mike Ezekail, Plaintiff's manager, which made it clear that defendant was making arrangements for its own plumbers make the [*4]necessary repairs. These e-mails also show that defendant was requesting access and plaintiff was voluntarily providing access for inspection and to "fix the leak."

Defendant's plumber did the repairs sometime between July 17 and 21, 2008. The workers did the work after business hours. Tony Agazzi asserts that defendants had no keys to the premises and could not gain entry without plaintiff providing access to them. Plaintiff does not dispute that defendant could not gain entry to the premises without it.

Discussion

Legal Standard Applicable to Motion and

Cross-motion for Summary Judgment (motion seq # 002)

A movant seeking summary judgment in its favor must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The evidentiary proof tendered, however, must be in admissible form (Friends of Animals v. Assoc. Fur Manufacturers, 46 NY2d 1065 [1979]). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]); Zuckerman v. City of New York, 49 NY2d 557 [1980]). In this case, each party bears the initial burden on their relative motion and cross-motion for summary judgment. Where the issues raised concern only issues of law, such as contract interpretation, the court can and should resolve them on a dispositive motion. (American Express Bank Ltd. v. Uniroyal, Inc. 154 AD2d 275 [1st dept. 1990]).

Mandatory Injunction (first cause of action)

Plaintiff's first cause of action seeks a permanent injunction "directing that Defendant full repair the bathroom and restore it to its original condition." (Complaint ¶27).In order to obtain a permanent injunction, the party seeking such relief must show irreparable injury and the absence of an adequate legal remedy. (Town of Liberty Volunteer Ambulance Corp. v. Catskill Regional Medical Center, 30 AD3d 739 [3rd dept. 2006]). Irreparable injury means injury for which money damages would be insufficient. (Ice Sculpture Designs, Inc. v. Icebreakers, 14 Misc 3d 1227(A) [Sup. Ct., Nass. Co. 2007, Austin, J.]).

Plaintiff's cause of action for a permanent injunction is based upon its claim that when defendant had workers come to repair the leak, they left the employee's bathroom in an unworkable and improper condition. In support of this claim plaintiff primarily relies on the affidavits of Moshe Mallul, president of plaintiff and Michael E. Ezekial, plaintiff's manager describing the offending condition. On this issue Mr. Mallul states: "The bathroom was left, after the repair, in shambles, with a large hole in the bathroom floor, a large hole in the bathroom wall behind the toilet and exposed pipes, each covered only by plywood boards. In addition, there was a substantial accumulation of construction dirt, dust, debris and other residue. Mini Mint's employees could not use the toilet without risk of falling into the hole in the bathroom floor." In a December 15, 2008 letter to defendant, Mr. Mallul described the condition of the bathroom as "unusable, unsanitary and dangerous.." Mr. Ezekial describes the condition of the bathroom as follows: workers acting under the direction of defendant "(i) demolished [*5]large portions of the Dishes' employee bathroom floor and wall(s), (ii)removed the toilet and vanity cabinet, (iii) repaired and/or replaced certain plumbing pipes and joints, and (iv) on a temporary basis, reattached the toilet, reinstalled the vanity mirror and covered the resultant openings with plywood sheeting."

In response to these claims defendant provided the affidavit of Hayde Campo, the plumber who actually performed the repair work in July 2008. He also inspected the premises in April 2010. He states; "..when we completed our repair work, we closed the openings in the wall and floor with wood boarding. The employee bathroom was fully operational when we left the job site...The wood boarding that we installed before we left the job site was nowhere to be found during my April 2, 2010 inspection of the employee bathroom. The wood must have been removed at some point after we completed the repair work. "

The court denies summary judgment on the cause of action for a mandatory injunction. Plaintiff failed to establish a prima facie case for a permanent injunction by, at a minimum, failing to establish that it does not have an adequate remedy at law. Not only do the moving papers fail to address this legal point, but otherwise in this complaint, based on the same conditions, plaintiff makes a claim for actual partial eviction, a claim that is redressed by monetary damages. Eastside Exhibition Corp. v. 210 East 86th Street Corp., 23 AD3d 100 (1st dept. 2005).

Even if the court found that the bare boned affidavits submitted by plaintiff were sufficient to support a prima facie case, summary judgment would be denied because defendant has raised issues of fact about the condition of the employee bathroom after the repairs were completed which can only be resolved at trial.

Declaratory Judgment (second cause of action)

Plaintiff's second cause of action seeks a declaratory judgment. CPLR § 3001 permits this court to render a declaratory judgment regarding the rights and legal relations of parties where there is an actual and otherwise justiciable controversy before it. ( Remsen Apartments, Inc. v. Nayman, 89 AD2d 1014 [2nd dept 1982] affd. 58 NY2d [1083 [1983]; Butler v. Goldberg, 40 AD3d 333 [1st dept. 2007]; 40-56 Tenth Avenue, LLC v. 450 West 14th St. Corp., 22 AD3d 416 [1st dept. 2005]. It is an important remedy to those who need to have their rights clarified, but have not traditional action to bring. (See: New York Foreign Trade Zone Operators v. State Liquor Authority, 285 NY 272 [1941]; Kalman v. Shubert, 270 NY 375 [1936]. CPLR 3001.12 Practice commentary).

The second cause of action seeks a declaration that: "(i) plaintiff had no obligation to repair the leak at it own cost or otherwise; (ii) ....[defendant's] failure to inform plaintiff as required by the sublease of a default and its intention to repair the leak for plaintiff's account relieved plaintiff of any liability for the payment therefor; [and] (iii) the actions of [defendant]...constitute an actual partial eviction of plaintiff, and that, as a result thereof, plaintiff is relieved of the obligation to pay rent under the sublease (Complaint ¶ 33).

Under section 13.01 of the lease the (sub)tenant is responsible for all portions of systems "within or exclusively serving the premises." The leaking waste pipe, located in the space below the floor and above the concrete slab is not "within" the premises. Although defendant claims that the commercially demised premises go from concrete [*6]slab to concrete slab, there no contractual definition of the premises in the lease or sublease which supports defendant's position. In the absence of a specific definition of premises that includes systems behind demising walls, ceilings and floors, the premises are limited to the space within the demising walls, ceilings and floors. See: Franklin Association, Inc. v. Westbrook Tenant's Corp., 43 AD3d 860 (2nd dept. 2007).

Nor is the offending pipe one that exclusively serves the demised premises. It is unclear where the pipe starts before it enters the space below the floor. It is undisputed that once the pipe turns downward, it services other, lower, units in the building. Defendant seeks to distinguish that part of the pipe which runs horizontally under the demised premises from that part of the pipe which turns vertically downward. While section 13.01 of the lease differentiates between responsibility for a horizontal pipe and a vertical pipe, in that the tenant is responsible for a horizontal pipe servicing the premises to the point where it "connect[s] to vertical portion of the building system", at bar, there is no connection to any vertical pipe servicing the building. There is only one continuous pipe that runs both vertically and horizontally. That one pipe services more than the demised premises, notwithstanding that it may twist and turn. There being no express provision in lease regarding continuous pipes such as these being the tenant's responsibility, it must be interpreted that they are the landlord's responsibility. (see: Jacobson v. Sassower 66 NY2d 991 [1985]).[FN1]

Therefore, plaintiff is entitled to summary judgment on the second cause of action declaring that plaintiff had no obligation to repair the leak at it own cost or otherwise.[FN2] In view of this court's interpretation of the sublease, the request for a declaration about the effect of prior notice is moot.

The final aspect of declaratory relief is with respect to plaintiff's claim that it was actually partially evicted from the premises after defendant undertook to repair the leak in July 2008. It claims that it is entitled to a suspension of all rent (and return of rent paid) as a result.

In the seminal case of Barash v. Pennsylvania Terminal Real Estate Corp., 26 NY 77 (18970), the Court of Appeals recognized that in the context of a commercial lease, a landlord is not entitled to recover the full amount of the rent if the tenant has been actually or constructively evicted from either the whole or part of the leasehold.An actual eviction takes place when the acts of the landlord cause a physical expulsion or exclusion from the premises. Manhattan Mansions v. Moe's Pizza, 149 Misc 2d 43 (NY Civ Ct. 1990). The right of a tenant to a complete rent abatement, as is sought here, is not automatic, even if an eviction is found. It depends upon the nature and circumstances of the taking. Eastside Exhibition Corp. v. 210 East 86th Street Corp., 23 AD3d 100 (1st dept. 2005). Moreover, the interplay of the landlord's right to do repairs in the lease bears upon the question of whether any eviction has even [*7]occurred. Cut Outs Inc v. Man Yun Real Estate, 286 AD2d 258 (1st dept. 200) lv. den. 100 NY2d 507 (2003).

Plaintiff claims that the repairs undertaken by defendant in July 2008 caused to employee bathroom toilet to become inoperable. It claims that this constituted an actual partial eviction from that part of the premises. No further facts are offered. The court cannot conclude, as a matter of law and without further facts regarding the condition of the bathroom and plaintiff's non-use of the premises, that an actual partial eviction has occurred. The facts presented are more in the way of conclusions. In any event, there are no facts from which the court determine that the remedy sought, a full rent abatement, is justified by the condition claimed.

Even were these general statements regarding the employee bathroom sufficient to prove a prima facie case of actual partial eviction, defendant has raised disputed issues of fact, because it denies that the toilet was inoperable following the repairs it made in July 2008.

The court, therefore, denies summary judgment on plaintiff's claim for actual partial eviction.

Trespass (third cause of action)

Trespass is an intentional tort. It is the intentional entry onto the land of another without justification or permission. (Phillips v. Sun Oil Co., 307 NY 328 [1954]; Long Island Gynecological Services, PC v. Murphy, 298 Ad2d 504 [2nd dept. 2002]). In general, a landlord's actions in entering the premises to make repairs is not a trespass, especially when theat right is reserved in the lease. (Garza v. 508 West 112th Street, Inc. 71 AD2d 567 [1st dept. 2009] affirming 22 Misc 3d 920 [NY Sup Ct. 12/01/08]). Wrongful eviction, is however, a trespass. (PWB Enterprises, Inc. V. Moklam Etnerprises, Inc., 221 AD2d 184 [1st dept. 1985]).

Plaintiff's claims of trespass are multifaceted. It relies on defendant's entry into the premises to make repairs in July 2008. It also relies on its claim that defendant made shoddy repairs, rendering the bathroom unusable. Both parties seek summary judgment on the trespass cause of action.

To the extent that the Trespass is predicated on unauthorized entry to do repairs, the claim is dismissed. The facts presented in these motions unequivocally establish that plaintiff gave defendant permission to enter the premises to make repairs in July 2008. The proof indisputably establishes that defendant could only gain entry to the premises if plaintiff provided access because defendant did not have the keys. Moreover, the e-mail exchanges between the parties show that in or about the time access was given, plaintiff was told that defendant would be sending in a plumber to inspect and possibly fix the leak.

Plaintiff argues that it never gave access for defendant to do work that would be charged back to them. This argument does not command a different result. There is no indication in any of the e-mail exchanges between the parties that plaintiff's grant of access was conditioned upon anything, let alone a commitment that defendant would pay for the work. Additionally plaintiff's arguments about lack of notice under the lease are a red herring, because plaintiff gave permission for defendant to enter the premises.

To the extent that the trespass claim is predicated on the alleged actual partial [*8]eviction resulting from the manner in which the defendant conducted repairs, neither side is entitled to summary judgment. In order for plaintiff to prevail on this claim, the conduct complained of must rise to the level of an actual partial eviction. As stated previously in this decision, plaintiff has not indisputably proven entitlement to judgment on its eviction claim. For the same reasons, it is not entitled to summary judgment on this aspect of its trespass claim.

Likewise for defendant, because there are disputed issues of fact concerning whether defendant actually partially evicted plaintiff in connection with the repairs done in July 2008, the cross-motion for summary judgment dismissing this aspect of the trespass cause of action is denied.

Bill of Particulars (motion seq. # 001)

The defendant's Demand for a Bill of Particulars is necessarily affected by the scope of this decision on the summary judgment motion and cross-motion, which has limited some claims and resolved others. There are still claims outstanding on which the parties are entitled to full disclosure. The scope of that disclosure would best be first addressed by the parties proceeding to a preliminary conference. The motion to compel a response to Demand for a bill of Particulars is, therefore, granted to the extent that the parties are directed to appear for a preliminary conference on October 7, 2010 at 9:30 am.

Conclusion

In accordance herewith it is hereby:

Ordered that defendant's motion (seq. # 001) to compel a response to its Demand for a Bill of Particulars is granted only to the extent that the parties are directed to appear for a preliminary conference before this court on October 7, 2010 at 9:30 am; No further notices will be sent, and it is further

Ordered that plaintiff's motion for summary judgment (seq. #002) is granted only to the extent that on the second cause of action the Court declares that plaintiff had no obligation to repair the leak at it own cost or otherwise , and it is further

Ordered that plaintiff's motion for summary judgment is otherwise denied, and it is further

Ordered that defendant's cross-motion (seq. #002) for summary judgment dismissing the third cause of action in the complaint is granted only to the extent that plaintiff's claim predicated upon wrongful entry to the premises to do the repairs is dismissed , and it is further

Ordered that defendant's cross-motion (seq. #002) for summary judgment dismissing the third cause of action in the complaint is denied to the extent plaintiff's claim is predicated on actual eviction, and it is further

Ordered that any requested relief not otherwise granted herein is denied and that this constitutes the decision and order of the Court.

Dated: New York, NY

August 31, 2010

SO ORDERED:

__________________

J.G. J.S.C. Footnotes

Footnote 1:Plaintiff argues that defendant drafted the lease; defendant does not deny this.

Footnote 2:This finding would similarly dispose of the counterclaim for the payment of repairs. Since no party requests specific relief regarding such counterclaim, however, the counterclaim continues at this point.