Bed-Ross Grocery, LLC. v Bedford Gardens Co. L.P.

Annotate this Case

Download PDF

Bed-Ross Grocery, LLC. v Bedford Gardens Co. L.P. 2018 NY Slip Op 33076(U) October 23, 2018 Supreme Court, Kings County Docket Number: 514714/17 Judge: Johnny Lee Baynes Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 11/21/2018 INDEX NO. 514714/2017 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 12/03/2018 At an IAS Part 68 of the Supreme Court of the State ofNew York, held in and for the County of Kings at the Courthouse thereof, at 360 Adams Street, Brooklyn, NY 11201, on the 23rd day of October, 2018. PRESENT: HON. JOHNNY L. BAYNES, JSC. ------------------------------------------------------------------------x Index No. 514714/17 BED-ROSS GROCERY, LLC., d/b/a BEDFORD GARDENS SUPERMARKET, Plaintiff, DECISION AND ORDER -againstBEDFORD GAR.PENS COMPANY L.P., Defendant, --------------------------------------------------------------------~---x Defendant, Bedford Gardens Company, L.P., (hereinafter "Defendant"), moves by Notice of Motion dated February 1, 2018, for an Order pursuant to CPLR § 212l(b) granting Summary Judgment in favor of Defendant and against Plaintiff, Bed-Ross Grocery, LLC, d/b/a Bedford Gardens Supermarket (hereinafter "Plaintiff') . . Defendant is owner of a building located at 104 Ross Street, Brooklyn, NY 11211 (hereinafter the "premises"), Plaintiff is a commercial tenant within the premises, operating a supermarket on the first floor of the premises and utilizing the basement for storage. A lease exists between the parties setting forth their rights and responsibilities, and plaintiff has operated at said premises since 1990. The lease has been periodically renewed and in full force and effect 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 11/21/2018 NYSCEF DOC. NO. 23 INDEX NO. 514714/2017 RECEIVED NYSCEF: 12/03/2018 on April 20, 2014. On that date, sewage and water backed up into the plaintiffs portion of the premises. Plaintiff alleges in its complaint that the backup of sewage into the leased portion of the premises violated plaintiffs right to quiet enjoyment of the premises and resulted in a partial constructive eviction from the leased premises. Defendant claims that plaintiff cannot sue for breach of contract but only for negligence, for which the three year statute of limitations has expired. Defendant further contends that "even if plaintiffs claim is one sounding in contract, the claim is barred by the lease agreement" and relies on Paragraph 4 of the lease in which defendant states that "plaintiff agreed to waive liability for defendant making or failing to make repairs." Affirmation of Michael S. Goldenberg in support of the motion for summary judgment dated February 1, 2018, ii 5. The affirmation goes on to opine that "if the Court accepts the plaintiffs argument that this is not a negligence claim, the claim is barred by the hold harmless language in the lease. Defendant here relies on Paragraph 8 of the Lease which purportedly "exculpates the defendant from liability for property damage unless caused by the defendant's negligence". Plaintiff responds by asserting Article 9 of the Lease which states "[i]fthe demised premises are partially damaged or rendered partially unusable by fire or other casualty, the damages thereto shall be repaired by and at the expense of Owner and the rent and other items of additional rent, up.til such repair shall be substantially completed, shall be apportioned from the day following the casualty according to the part of the premises which are Unusable". Memorandum of Law in Opposition, p.3, ii 3. Article 9 is fairly specific in excluding tenant's "furniture and furnishings or fixtures or equipment, improvements or appurtenances removable by [Plaintiff] anp agrees that [Defendant] will not be obligated to repair any damage thereto or replace the same". What the clause does not do is say that the Defendant is not responsible to 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 11/21/2018 NYSCEF DOC. NO. 23 INDEX NO. 514714/2017 RECEIVED NYSCEF: 12/03/2018 repair the demised premises. Summary judgment, while a drastic remedy, is warranted when there are no factual disputes to be resolved by the trier of fact. Mallard Construction Corp v County Fed Savings, 32 NY2d 285 [1973], whether all issues to be resolved are strictly issues oflaw, Long Island RR Co v Northport Industrial Corp., 42 NY2d 455 [1977], or when the uncontroverted facts can only be determined in one fashion as a matter oflaw. Alvord and Swift v Stewart and Miller Constr. Co., Inc., 46 NY2d 276 [1978]. "It is well settled that 'the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact'." Olan v Ursino, 235 AD2d 406 [AD2d 1997]. Once this showing is made, the burden shifts to the party opposing the motion for Summary Judgment. Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]. In considering a motion for summary judgment, the Court must view all facts in a light most favorable to the nonmoving party. See, Zuckerman v City ofNew York, 49 NY2d 557 [1980]. In this instance, there is no factual information about how the sewage overflowed into plaintiff's premises. There have been no depositions. There is simply no admissible evidence placed before the Court which would makes a prima facie showing of entitlement to judgment as a matter of law. There is no means of determining if plaintiff was, at a bare minimum, constructively evicted from the premises. There is only the affirmation of defendant's counsel which is not made based on personal knowledge. Whether the lease will ultimately result in liability cannot be ascertained absent the application of the facts of the occurrence. Those material facts must be ~etermined by a trier of fact at trial. WHEREFORE, it is hereby 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 11/21/2018 INDEX NO. 514714/2017 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 12/03/2018 ., ORDERED AND ADJUDGED that the motion of Defendant Bedford Gardens Company, L.P., for an Order pursuant to CPLR § 212l(b) granting Summary Judgment in favor of Defendant and against Plaintiff, Bed-Ross Grocery, LLC, d/b/a Bedford Gardens Supermarket is denied in all respects. The foregoing constitutes the Decision and Order of the Court. ENTER l /" L. BAYNES, JSC .., JOHNN'< LEE eA'fNES HQ,.... 4 of 4

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.