Wang v Dora Strauss Family Ltd. Partnership Assn.
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Wang v Dora Strauss Family Ltd. Partnership Assn. 2011 NY Slip Op 32877(U) October 4, 2011 Supreme Court, New York County Docket Number: 103351/11 Judge: Joan M. Kenney Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNEDON 1013112011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: I ZNNry PART g Justice INDEX NO. MOTION CAL. NO. E74L. The following papers, numbered 1 to /Q3354, were read on this motlon tolfor Notice of Motion/ Order to Show Cause - Affidavits - Exhlbits ... Answering Affldavita - Exhibits Rspiylng Affidavits Cross-Motion: 0 Yes No Upon the foregoing papers, It Is ordered that this motion UNFILED JUDGMENT This judgment has not been entered by the County Clerk and ndice of entry cannot be served based h e m . To obtain entry, counsel or authorired representative must appear in p e r s ~a the J~&jment Clerk's Desk ( R m t l 141B). Eheck one: FINAL DISPOSITION Check if appropriate: 0 NON-FINAL DISPOSITION 0 DO NOT POST , SUBMIT ORDER/ JUDG. I REFERENCE r] SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PART: 8 ..................................... -X XIANG XI WANG, Plaintiff, Index #103351/11 -against- DECISION 0RDER & UNFILED JUDGMENT DORA STRAUSS FAMILY LIMITED This judgment has not been entered b the County Clerk and n t c of entry cannot be served ased hereon. TO oie Defendanobtain entry, counsel or authorized representative m s ut - - - - - - - - - - - - - - - - - - - - - . - - - - - - - - - - - appac&~ person at the Judgment Clerk s Desk (Room , HON. JOAN M. KENNEY, J. : 1418). PARTNERSHIP ASSOCIATION, l Papers considered in review of this motion seeking a Yellowstone I n j unction : Numbered Pagers order To Show Cause, Affirmation, Affidavit and Exhibits Opposition Papers, Affirmation with Exhibits (914) 235-7234 Plaintiff moves, by injunction 8-14 Dafmndantls Counsrli Fred Seeman, Esq. By: P e t e r Kirwin, Esq. 170 Broadway, Suite 201 New York, NY 10038 (212) 608-5000 Plaintiffla Counsel: Todd Rothenberg, Esq. 271 North Avenue, Suite 115 New Rochelle, NY 10801 Yellowstone 1-7 Order To seeking to Show Cause toll the for a (OSC), period to cure plaintiff s alleged violations of the commercial lease (the lease) attendant to the commercial storefront premises located at 286 Grand Street, New York, NY 10002 (the premises). The lease expires by its own terms on December 31, 2011. The threshold issue to be decided is whether or not the instant motion is properly before the court. Defendant served a notice of cancellation and termination on or about March 21, 2011. The nature of the allegations precipitating the lease termination are that plaintiff s fish store has apparently been leaking for many years, due to improper drainage and water leakage. The [* 3] alleged result is that the premises has suffered from, among other things, extraordinary water damage, structural deterioration and massive mold infiltration that has been repeatedly covered with drywall. Plaintiff presented the OSC for signature on March 18, 2011. Pursuant to the decretal paragraph delineating the mode and method of service, plaintiff had until April 1, 2011, to serve defendant by "personal delivery.rr Also, defendant's counael was given notice of plaintiff's intention to proffer the OSC for signature on March 18, 2011 ( s e e , affidavit of James Patalano, who avers that he spoke to defendant's counsel on March 17, 2011, and informed him of the date and time of the presentation of the motion, and filing of the pleadings) . Clearly, counsel for both sides were in t h e middle of an ongoing proceas to either correct the problems at the premises, or defendant would choose to end the landlord/tenant relationship with plaintiff. Defendant's argument that there was some technical deficiency in the timing of the motion, and/or the service thereof, is unavailing. There was not any prejudice suffered, nor was there any question that defendant had notice of the return date of the motion. Moreover, defendant was granted an adjournment of this 'The court takes note of the following: there is a pending eviction proceeding pending in Civil Court, New York County, and as a result, the parties counsel were in contact with each other for sometime before the instant litigation was commenced. 2 [* 4] motion, so as to provide defendant with ample opportunity to submit written opposition to the Court. Now to the merits of the motion. FACTUAL B A C K G R O W Plaintiff operates a retail fish and seafood store at the premises. The store is set up with large tanks of live fish, turtles and frogs, as well as fish that i s stored in both water and ice. Plaintiff has been the lessee of the premises since at least 2007. It is undisputed that inoperable drains and/or a lack of proper drainage, has caused or significantly contributed to the damage observed in the premises by non-party witnesses. Defendant has proffered two expert opinions, one from a structural engineer and one from and environmental assessment firm that among other things remediates mold. The conclusions reached by these firms are horrific and are undisputed. The structural engineer's report states in pertinent part as follows: "it is necessary to install immediately adequate temporary shoring below the first floor joists... . / I * . . [retention] of the services of an environmental specialist to test for the. . . presence of hazardous materials." The structural expert determined that because of conatant exposure to large amount of water the structural integrity of the building has been compromised. As per the recommendation of the structural engineer defendant hired Hazardous Elimination Corp. an additional environmental expert, Attached to the opposition papers as 3 [* 5] Exhibit "C" is the environmental expert's report, which atates in pertinent part as follows, as it relates to the basement of the premises : "The drywall is covered in spots by water stains from above and live mold from the front to the back of the space, some mold growths were found to be 'dripping off the joists and structure.' " Notably, both expects inspected the premises on different dates and plaintiff's store was actively leaking water into the basement. It is undisputed that the premises continues to leak, resulting in additional damage to the structural j o i s t s and causing the beams to rot. The inadequate waterproofing and insufficient support for severed floor joists has all occurred in violation of the terms of the lease. Furthermore, it appears from the papers, that plaintiff has completely failed to address any of the problems related to the saturation of the premises. As of this writing, plaintiff has not provided any indication that he intends to take any measures to cure the problems and/or renovate the damaged parts of the premises. DISCUSSION First N a t . Stores, Inc. v . Yellowstone Shopping Ctr., Inc. , 21 2The case was conferenced on at least two occasions and after the last conference the parties were to report back to the Court, what if any steps were going to be taken to repair the water damage and/or for plaintiff to vacate the premises. 4 [* 6] NY2d 630 (1968) and its progeny established a four prong test for , determining whether a Yel1owstone1linjunction should be granted. The requirements for obtaining Yellowstone relief are as follows: (1)plaintiff holds a commercial lease, ( 2 ) the landlord has served a notice to cure, (3) the referenced cure period has not expired, and ( 4 ) plaintiff has to demonstrate an ability and willingness to Cure. ERS Enterprises, Inc. v E m p i r e Holdings, LLC, 286 Ad2d 206 (lEt Dept 2001); Purdue Pharma LP v A r d s l e y P a r t n e r s , LP, 5 AD3d 654 (2d Dept 2 0 0 4 ) . A Yellowstone injunction maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in t h e leasehold by obtaining a stay tolling the cure period so that upon an adverse defemination on the merits the tenant may cure the default and avoid a forfeiture of the lease (Post v 120 E . End A v . C o r p . , 62 NY 2d 19, 26 [19881). The very nature of this kind of injunction is designed to forestall the cancellation of a lease to afford the tenant an opportunity to obtain a judicial determination of its breach, the measures necessary to cure it, and those required to bring the tenant in future compliance with the terms of the lease (see, Waldbaum, Inc. v. Fifth A v e . of Long Is. R e a l t y A s s o c s . , 8 5 NY2d 600, 606 [ 1 9 9 5 1 ) . 5 [* 7] Furthermore, [tlhe purpose specifically apprise the a of tenant of notice to cure claimed defaults is to in its obligations under the lease and of the forfeiture and termination of the lease if the claimed default is not cured within a set period of time. 5 4 2 Holding Corp. AD3d 309 ( l a Dept t 2007). v. Prince Fashions, Inc., 46 It is clear from the prior communications that occurred between these parties, and the inspections of the premises, that the notice to cure and notice of termination both served in connection with the current application, occurred in order to give plaintiff ample opportunity to address the conditions discovered. By failing to indicate in his motion papers that he has the financial wherewithal to repair the conditions at the premises, plaintiff is unable to satisfy his burden of establishing that he has both the desire and the ability to cure the alleged default by any means short of vacating the premises ( s e e 225 East 36th S t r e e t Garage Corp. v 221 E. 36th O w n e r s C o r p . , 211 AD2d 420 [ l m t Dept 20041). Additionally, plaintiff has not provided proof of any efforts he has made in addressing the structural and environmental conditions described in the opposition papers prior to the commencement of this action. The Court has considered all of the additional arguments raised in the parties motion papers and find them unavailing. 6 [* 8] Consequently, plaintiff's motion is denied and all previous stays a r e vacated. Accordingly, it is dismissed. E N T E R : Dated: October 4, 2011 W Hon. Joan M. Kenney UNFILED JUDGMENT This judgment hhs not been entered by the County Clerk and notice of entry cannot b served based hereon. To e obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Room 1418). 7
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