Asanda Park Ave., Inc. v 120 E. 56th St., L.L.C.

Annotate this Case

Download PDF

Asanda Park Ave., Inc. v 120 E. 56th St., L.L.C. 2016 NY Slip Op 32585(U) December 23, 2016 Supreme Court, New York County Docket Number: 653623/2016 Judge: Lucy Billings Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46. ---------------~-----~------------------x ASANDA PARK AVENUE, INC. GENE FRISCO, I and 653623/~016 Index No. Plaintiffs DECISION AND ORDER· - against 120 EAST 56TH STREET, L.L.C., Defendant ----------------------------------------x APPEARANCES: For Plaintiffs Matthew J. Walters Esq. Law Offices of Walters & Walters 20 Vesey Street, New York, NY 10007 For Defendant David S. Conklin Esq. Ahmuty, Demers & McManus 200 I~U. Willets Road, Albertson, NY 11507 LUCY BILLINGS, J.S.C.: I. ISSUES PRESENTED Plaintiffs are a corporat'e tenant that sells spa services and products in defendant's building at 120 East ~6th Street, New York County, anp the individual guarantor of plaintiff tenant's obligations under its lease with defendant. Plaintiffs move for partial summary judgment on their eighth claim, that defendant has actually evicted plaintiff tenant from part of the second floor terrace within the .leased premises, C.P.L.R. § 3212(b) and (e), and for removal to this court and consolidation with this action defendant's summary proceeding for nonpayment of rent against plaintiff tenant in the New York City Civil Court in New asandapk.178 1 2 of 16 [* 2] York County. · C.P:L.R. §§ 325(b), 602. P.laintiffs' witnesses attest that defendant has permitted the owner of the adjacent building at 425 Park Avenue to erect a sidewalk shed and scaffolding as overhead protection against falling debris from demolition, excavation, and construction at the adjacent building. This sidewalk shed and sc~ffolding have blocked qff part of the second floor terrace, preventing plaintiffs from constructing an enclosure over the terrace and a barrier around the air conditioning unit to create a sunlit quiet space for clients. The shed and scaffolding have also damaged the heating, ventilation, and air conditioning (HVAC) compressor and restricted access to the compressor for its maintenance and repair. Claiming an actual partjal eviction that suspends the obligation to pay rent, plaintiff tenant has withheld approximately $38,000 per month in rent payments during the last nine months, which defendant seeks in its nonpayment proceeding. Although not sought ~y plaintiffs' notice o~ their motion, nor supported by their affidavits, plaintiffs also claim defendant has permitted the adjacent building owner to extend an overhead protective sidewalk shed and scaffolding in front of defendant's facade on 56th Street. This structure has moved part of plaintiff tenant's signage in the form of a flag, blocked visibility of a second installed flag, and prevented installation of signage in the form of awnings. The areas of signage installation are not part of the leasehold, but the lease permits plaintiff tenant to install its signage in those areas. asandapk.178 2 3 of 16 [* 3] .... l Defendant's .witnesses attest that the overhead protection ,, covers only a non-materi~l, de minimis part of the second floor terrace limited to the air conditioning units. Regarding the claimed obstruction of signage, defendant concedes that it has not permitted plaintiff tenant to install and maintain all the signage permitted under the lease, Defendant's witnesses nonetheless point out that the adjacent building owner's additional sidewalk bridge and netting to which def·endant did not agree, as the bridge and netting do not encroach on defendant's premises, alrea?y obscures plaintiff tenant's flags, regardless of the sidewalk shed and scaffolding over defendant's premises that defendant did agree to. II. ACTUAL PARTIAL EVICTION To have actually evicted pla{ntif f tenant from part of the leased premises, defendant must have (1) wrongfully ousted and (2) physically expelled or excluded plaintiff tenant from possession of part bf the leasehold. Barash v. Pennsylvania Terminal Real Estate Corp., .26 N.Y.2d 77, 82-83 (1970); Marchese v. Great Neck Terrace Assoc., L.P., 138 A.D.3d 698, 699-700 (2d Dep't 2oi6); Whaling Willie's Roadhouse Grill, Inc. Partners, Inc., 17 A.D.3d 453, 453 (2d Dep't 2005). V; Sea Gulls The second .element distinguishes actual eviction from constructive eviction, which still requires the landlord's wrongful action, a material deprivation of the leasehold's beneficial use, and the tenant's abandonment of at least part cf the leasehold, but riot a physical expulsion or exclusion. asandapk.178 Barash v .. Pennsylvania Term. Real Estate 3 4 of 16 [* 4] I Corp., 26 N.Y.2d at 83, 86; Schwartz v. Hotel Carlyle Owners Corp., 132 A.D.3d 541, 542 (1st Dep't 2015); Pacific Coast Silks, LLC V. 247 Realty, LLC, 76 A.D.3d 167, 172 (1st Dep't 2010); Jackson v. Westminster House Owners Inc., 24 A.D.3d 249, 250 (1st Dep't 2005). Causing the leased premises to become unusable "is insufficient, as a matter of law, to make out ari actual eviction," Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d at 82, which entails both a deliberate disturbance of plaintiff tenant's possession well as a material deprivation ~s of its beneficial use of the premises. Eastside Exhibition Corp. v. 210 E. 86th St. Corp., 18 N.Y."Jd 617, 623 (2012); Bostarty v. Trump Org. LLC, 88 A.D.3d 553, 554-55 (1st Dep't 2011) ;_ Pacific Coast Silks, LLC v. 247 Realty, LLC, 76 A.D.3d at 172; Marchese v. Great Neck Terrace Assoc., L.P., 138 A.D.3d at 699-700. . . An actual eviction, even if from only part of the leasehold, and even though plaintiff tenant remains in possession _of the remainder cif the leasehold, suspends the entire rent, because defendant, having caused the actual partial eviction through wrongful action, may not apportion defendant's own wrong .. Eastside Exhibition Corp. v. 210 E. 8~th St. Corp., 18 N.Y.3d at 622; Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d at 83-84. See Joylaine Realty Co., LLC v. Samuel, 100 A.D.3d 706, 706-107 (2d Dep't 2012); Whaling Willie's Roadhouse drill, Inc. v. Sea Gulls Partners, Inc., 17 A.ti.3d at 453; 487 Elmwood v. ' Hassett, 107 A.D.2d 285, 288 (4th Dep't 1985). Nevertheless, not every intrusion into the leased premises justifies a total · asandapk. 178 4 5 of 16 [* 5] suspension or abatement of rent. Eastside.Exhibition Corp. v. 210 E .. 86th St. Corp., 18 N.Y.3d at 622; Cut-buts, Inc. v .. Man Yun Real.Estate Corp., 286 A.D.2d 258, 260-61 (1st Dep!t 2001). An intrusion that does not materially interfere with plaintiff tenant IS use of th.e premi9e~ may warra,nt damages compensating for the intrusion or injunctive relief prohibiting the int:rusion, rather than a suspension oL rent. Eastside Exhibition Corp. v. 210 E. 86th-St. Corp.·, 18' N.Y.3d at 622.__23; Goldstone v. Gracie Terrace Apt. Corp., 110 ..A.D.3d 101, 106 (1st Dep't 2013). See id. at 624; Carlyle, LLC v. Beekman ·Garage LLC, 133 A.D.3d 510; 511 (1st Dep't 2015); camatron sewing Mach.· v. RingAssocs., 179 A.D.2d 165, 167 (1st be~'t 1992); 487 Elmwood v. Hassett, 107 A.D.2dat 288. A. Defendant's .Wrongful Action The parties stipulate that the court may consider the lease attached as Exhibit H to plaintiifs' motion authentidated and admissible for purposes of determining their entitlement to partial summary judgment._ Paragraph 34. of the lease provides: If an .excavatio.n shall be made upon land adjacent to the demised premises, · Tenant· shall-afford to the person causing . . such excavation, a license to enter upon the demised premises : . ~ to pr~s~rve the wall or the building of which the demised premises form a part from injury or damages, · without any· claim for damages or indemnity against Owner, or diminution o:iabatement of.rent. Aff. ~f.Gene Frisco Ex. H ~ 34 (emphasis added). The parties agree that the'adjacent buildi'ng owner has excavated its land c;idjacent t_o the demised premises,. claim the asandapk.178 adjacent~owner's .Plaintiffs· sidewalk shed and scaffolding are to 5 6 of 16 [* 6] protect p~destrians from falliµg debris overhead. Defendants' witnesses, on the other hand, attest that the sidewalk shed and scaffolding blocking off part of- the second floor-terrace are to preserve the terrace and other part~ of defendant's building from damage due to the falling debris and adjacent construction activity. No New York City Building Code provision or other law that defendant relies on required .its or plaintiff tenant's cooperation in providing the overhead protection, however, as The code required the adjacent building 1 owner defendant urges. to provide that protectio~, which defendant made a business _( decision to allow, to avoid litigation by the· adjacent owner under R.P.A.P.L. § 881, and to play a role in devising the means to preserve defendant's building, and which plaintiffs did not impede. Nevertheless,· under~ 34 of the lease, defendant at minimum raises a factual issue whether defendant's collaboration in any physical exclusion of plaintiff tenant from the secorid floor terrace was not wrongful, but . instead - was entirely - permissible to preserve defendant's building from damage. Carlyle, LLC v. Beekman Garage LLC, _133 A.D.3d at 510; Jackson v. Westminster House Owners-Inc.; 24 A.D.3d at 250; Cut~Outs, Inc. v. Man Yun Real Estate Corp., 286 A.D.2d at 260-61. Defendants' witnesses do not attest to a similar purpose of the overhead protective sidewalk shed and scaffolding in front of defendant's facade on 56th Street that plaintiffs claim has ~oved or blocked visibility of plaintiff tenant 1 s installed signage and asandapk.178 6 7 of 16 [* 7] prevented installation of further signage. Defendant's very concession that this shed and scaffolding are in front of the building .;facade, over the sidewalk, indicates that this structure is in fact solely to protect pedestrians from falling debris overhead. While defendant insists that the lease does not require that plaintiff tenant's signage be visible, the lease does require ·that plainti£f tenant be permitted to install and maintain its signage in specified areas.and be free to select within those areas sites of maximum visibility. The adjacent \ building owner's construction of the. overhead protective sidewalk. ~efendant's shed and scaffolding in front of facade on 56th Street, with which defendant has collaborated, has undisputedly blocked plaintiff tenant from installing and maintaining its signage at'its .selected sites within the lease's parameters. Contrary to defend~nt's suggestion, again, no law requires plaintiff tenant to accede to the blockage of permitted signage. Nor is the signage a building service, governed by., 91(C) and (D) of the lease, which permit the interruption or suspension of· such a service when required by law or the landlord f's I not the adjacent building owner's, alterations, improvements, or. similar activity. As set forth below, , 90 0£ the lease governs signage, distinct frbm building services. Neverthel~ss, because the installation of the sign~ge is in an area that is not part of the leasehold, any physical expulsion or exclusion from this area is hot an . act~al partial eviction unless plaintiff tenant's entitlement to use that area amounts to asandapk.178 7 8 of 16 [* 8] an easement appurtenant to the leasehold. Second on Second Cafe v. Hing Sing Trading, Inc., 66· A.D.3d 255, 267-68 (1st Dep't 2009) ;. Badding v. Ing·lis, 112 A.D.3d 1329, 1330-31 (4th Dep't 2013); 487 Elmwood v. Hassett, 107 A.D.2d at 286. Again, the interference must entail a physical ouster, not just a diminution of use. Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d at 85-86; 127 Rest; Corp v. Rose Realty Group, LLC, 19 A.D.3d 172, 173-74 (1st Dep't 2005); 487 Elmwood v. Hassett, 107 A.D.2d at 287. Even if plaintiffs'_ motion might be construed as seeking a declaration that defendant has actually evicted plaintiff tenant from the area of the signage, plaintiffs have not established that the tenant was granted an easement on that area. easement is a p~rmanent An interest in real property created by a grant or conveyance, as by a deed. Willow Tex v. Dimacopoulos, 68 N.y.2d 963, 965 (1986)'; Kampfer v. DaCorsi, 126 A.D.3d 1067, 1068 (3d Dep't 2015); Millbrook Hunt v. Smith, 249 A.D.2d 281, 282-83 (2d Dep't 1998); Clements v. Schultz, 200 A.D.2d 11, 13 (4th Dep't 1994). Any ambiguity as to the permanence of the right of use dictates that it be construed as a license to use the· real property, rather than an easement. Dimacopoulos, 68 N.Y.2d at 965. Willow Tex v. When the right of .use did not predate the lease, the right must be necessary to the premises' use expressed in the lease. Trading, Inc., 66 A.D.3d at Second on Second Cafe v. Hing· sing 269~70. Paragraph 90(H) of the lease,provides that "Landlord hereby asandapk.178 8 9 of 16 [* 9] consents to . .'Tenant's installation of two (2) exterior white flags and new white awnings above each window Aff. Ex. H ~ 90(H). " Frisco Signage, as important as it may be to plaintiff tenant'.s business, is a dispensable· accessory to its sale of spa services and products. ~ More significantly, paragraph 90(H) lacks any grant or conveyance of a permanen!: or enduring interest in the areas where install signage. prov~sion, plainti~f tenant is authorized to The absence of such terms from this lease as well as the inessential connection between the signage and.plaintiff tenant's business, at minimum raises an issue whether this provision is simply a license to enter those areas to install and maintain the ·signage, personal to this tenant, and limited to the lease's duration, rather than an easement. Willow Tex v. Dimacopoulos, 68 N.Y.2d at 965; Kampfer v. DaCorsi, 126 A.D.3d at 1068; State of New York v. Johnson, 45 A.D.3d 1016, 1019 (3d Dep't 2007). Hing Sing Trading, Inc., 66 A~D.3d See Second on Second Cafe v. at 269-10; Millbrook Hunt v. Smith, 249 A.D.2d at 28~. B. Exclusion or Expulsion Plaintiffs demonstrate that the sidewalk shed and scaffolding have prevented plaintiff tenant's intended use of the entire second floor terrace as an enclosed area in which to provide its services to clients and have damaged and restricted access to thE;= HVAC compressor. Plaintiffs do not demonstrate that the shed and scaffolding have barred access to or possession of any part of the terrace other than the air conditioning units asandapk.178 9 10 of 16 [* 10] or any other part of the leasehold. Cut-Outs, Inc. v. Man Yun Real Estate Corp., 286 A.D.2d at 261. See Bostany v. Trump Org. LLC, 88 A.D.3d at 555; Pacific Coast Silks, LLC v. 247 Realty, LLC, 76 A.D.3d at 173. Plaintiffs present no measurement of the percentage of- leasehold space ocdupied by the air conditioning units. Goldstone v. Gracie Terrace Apt. Corp., 110 A.D.3d at 106; Cut-Outs, Inc. v. Man Yun Real Estate Corp., 286 A.D.2d at 261. See 487 Elmwood v. Hassett, 107 A.D.2d at 288. The lease and defendant's witnesses demonstrate that the leasehold consist~ of the entire second floor of the building, plus the terrace, plus portions bf the b~ilding's basement, all of which plaintiff tenant continues to_ occupy, except the air conditioning units' immediate surroundings. This evidence suggests not only that the air ccinditioning units may be an insignificant' portion of the terrace, but also that the entire terrace, of which the units are a small part, is in turn a small part of the entire second floor, and that the entire leasehold expands well beyond the entire floor. See Eastside Exhibition Corp. v. 210 E. 86th St. Corp., 18 N.Y.3d at 624; Goldstbne v. Gracie Terrace Apt. Corp., 110 A.D.3d at 105-106; Cut-Outs, Inc. v. Man Yun Real Estate Corp., 286 A.D.2d at 261. The location of the sidewalk shed and scaffolding, covering only the air conditioning units, also may minimize the structure's me~surable leasehold's use. effect on space essential to the Eastside Exhibition Corp. v. 210 E. 86th St. Corp., 18 N.Y.3d at 624; asandapk.178 Cut-Out~; Inc. v. Man Yun Real Estate 10 11 of 16 [* 11] Corp., 286 A.D.2d at 261. Plaintiffs present· no evidence of how essential their proposed enclosure was 'to plaintiff tenant's operations, or even when plaintiffs intended to complete the enclosure for use in the busines~, or losses in. expected sales, revenue, or customers because the intrusion on the air conditioning units prevented plainti{f tenant from proceeding with its operations. Pacific Coast Silks, LLC v. 247 Realty, LLC, 76 A.D.3d at 172-73; 4.87 .Elmwood v. Hassett, 107 A.D.2d at 290. Defendant's evidence at minimum raises a factual 'issue whether the sidewalk ·shed and scaffolding bar only a nonmaterial, de minimis part of the entire leasehold and thus do not constitute an actual eviction that suspends the entire obligation to pay rent. Eastside Exhibition Corp. v. 210 E. 86th St. Corp., 18 N.Y.3d at 622-23; Pacific Coast Silks, LLC v. 247 Realty, LLC, 76 A.D.3d at 173; Cut-Outs, Inc. v. Man Yun Real Estate Corp., 286 A.D.2d at 260-61; Whaling Willie's Roadhouse Grillr Inc. v. Sea Gulls Partners, Inc., 17 A.0.3d at 454. III. CONSOLIDATION Since this court has found material factual issues that preclude summary judgment on plaintiffs' claim.of an actual partial eviction, the parties may proceed in the Civil Court to a trial of those issues, as well as the tenant's partial constructive eviction defense and any other defenses to the nonpayment of rent that overlap with its claims here. Those defenses are central to the Civil Court's determination of the tenant's .rent obligation, if any. asandapk.178 The Civil Court may not 11 12 of 16 [* 12] determine the landlord's rent claim without determining those defenses. 2013). Simens v. Daiwish, 105 A:D.3d 686, 686 (1st Dep't The tenant may obtain complete relief on the merits of those claims in defense of the nonpayment proceeding, Brecker v . •295 Cent. Park W., Inc., 71 A.D.3d 564, 565 (1st Dep't 2010), and, insofar as plaintiffs have not elected their remedies, may obtain damages here for any contractual breaches that deprived the tenant of ·its use of the leased premises and interfered with its business operations. See. Schwartz v. · Hotel Carlyle Owners Corp., 132 A.D.3d at.542-43; Bostany v. Trump Org. LLC, 88 A.D.3d at 554; 487 Elmwood v. Hassett, 107 A.D.2d at 288-89.' The Civil Court proceeding is set for trial January 3, 2017. Plaintiffs acknowledg~ that this action, in contrait, is far from ready for trial, and both side's need "disclosure before proceeding to trial. The tenant has not sought disclosure in the nonpaym~nt proceeding, C.P.L.R. § 408, and, by moving ·for summary judgment, demonstrates the absence of any need for disclosure relating to the actual partial eviction claim. W., Inc., 71 A.D.3d at 565. See Brecker v. 295 Cent. Park Consolidation of the nonpayment proceeding with this action would only delay, dramatically, the ~ nonpayment proceeding's immediate trial. Wachovia Bank, N.A. v. Silverman, 84 A.D.3d 611, 612 (1st· Dep't 2011); Ahmed v. C.D. Kobsons, Inc., 73 A.D.3d 440, 441 (1st Dep't 2010); Cronin v. Sordoni Skanska Constr. Coip., 36 A.D.3d 448, 449 (1st Dep't 2007); Goldman v. Rosen, 15 A.D.3d 321:, 321 (1st Dep't 2005). see Simens v. Darwish, 105 A.D.3d at 687. asandapk.178 12 13 of 16 [* 13] ) ·Keeping this action separate need not pose a risk of inconsistent dispositions, See Murphy v. 317--319 Secorid Realty LLC, .95 A.D.3d 443, 445 (1st Dep't 2012); Badillo v. 400 E. 51st - - St. Realty LLC, 74 A.D.3d 619, 620 (1st Dep't 2010); Amcah Holdings,_ Inc. v. - Torys LI:.P, 32 A.D·.3d 337, 340 (1st Dep't 200.6); - Matter of Progressive Ins . .Co., 10 200~). - A~D.3d ~18, 519 (1st Dep't - The issues in the nonpayment proceeding overlap with the issues here, but they are not so inextricably·intertwiried that d_ual litigation is unfeasible or inefficient. Insofar as this action.- involves issues in common with the Civil Court p"roceeding, r - the determination of those issues. upon the trial of that proceeding, involving two of the three parties here, may determine the same issues here under principles of preclusion. Matter of Hunter, 4 N.Y.3d 260, 269 (2005); Gellmanv. Henkel, 112 A.D.3d 463; 464 (1st Dep't 2013); PJA Assoc. Inc. v. India House, Inc., 99 A.D.3d 623, 624 (1st Dep't 2~12); Highland Capital Mgt., L.P., 86 A.D.3d.469, 474 UBS Sec. LLC v. (1st Dep't 2011). In any event; - this action may proceed t9 determine plaintiffs' - - contractual and negligence claims for personal property. lo~t business and damage to - See Mt. McKinley Ins. Co. v. -Corning Inc., 33 A.D.3d 51, 58-59 (1st Dep't 200.6). - Since this court has determined the single claim that plaintiffs have presented for ·immediate disposition here, no reason of judicia-1 efficiency or avoidance of inconsistent di~pbsitions remains to dictate a stay of the nonpayment proceeding's determination of the issues before the Civil court. asandapk.178 C.P.L;R. § 2201. ~, 13 14 of 16 Wachovia Bank, N:A. v. [* 14] Silverman, 84 A.D.3d at 612; Handwerker v. Ensley, 261 A.D.2d 190, 191 (1st Dep' t 1999) ; Dun-:- Donnelly Publ. Corp. v. Kenvic Assoc., 225 A.D.2d 373, 374 (1st Dep't 1996). See Fewer v. GFI Inc., 59 A.D.3d 271, 271-72 (1st Dep't 2009); Somoza ·v. Pechnik, 3 A.D.3d 394, 394 (1st Dep't 2004); Lessard v~ Architectural , Group, P.c. v. X & Y Dev. Group, LLC, 88 A .. D.3d 768, 770 (2d Dep't;. 2011). IV. CONCLUSION Because material factual issues remain bearing on plaintiffs' claim of actual partial eviction, the court denies their motion for partial summary judgment on that claim. C.P.L.R. § 3212(b) and (e). These issues include whether: (1) the sidewalk shed and scaffolding blocking off part of the second floor terrace are to preserve defendant's building from damage and thus permissible under ~ 34 of the parties' lease, rather than wrongful; (2) physical expulsion or exclusion from the area for installation of the signage is the denial of a license, rather than an eviction from an easement appurtenant to the leasehold; and (3) the sidewalk shed and scaffolding bar only a non- material, de minimis part of the ·entire leasehold and thus do not suspend the entire obligation to pay rent .. For the further reasons explained above, .the court. also denies plaintiffs' motion for removal to this court and consolidation with this action of defendant's nonpayment proceeding against asandapk.178 14 15 of 16 [* 15] plaintiff tenant in the Civil Court or for a stay of that proceeding. DATED: C.P.L.R. §§ 325(b), 602, 2201. December 23, 2016 LUCY BILLINGS, J.S.C. LUCY· BH...L1NG'$ · J.s.c. I . '' asandapk.178 15 16 of 16

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.