Romcargio LLC. v 653 Ninth LLC

[*1] Romcargio LLC. v 653 Ninth LLC 2018 NY Slip Op 51029(U) Decided on June 27, 2018 Supreme Court, New York County Borrok, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 27, 2018
Supreme Court, New York County

Romcargio LLC., Plaintiff(s),

against

653 Ninth LLC, Defendant(s).



651312/2018



Plaintiff's Attorney: Gil Auslander, Esq. Sokoloff Stern LLP 179 Westbury Ave, Carle Place, NY 11514

Defendant's Attorney: Dean Dreiblatt, Esq. C/O Rose & Rose 291 Broadway, 13th Floor, New York, NY 10007 (212)-349-3366.
Andrew Borrok, J.

Recitation, as required by CPLR § 2219(a), of the papers considered on the review of this motion to dismiss the action based on documentary evidence

PAPERS NUMBERED

Notice of Motion and Affidavits and Exhibits Annexed 1

Answering Affidavits and Exhibits Annexed 2

Replying Affidavits and Exhibits Annexed 3

Upon the foregoing cited papers, the Decision/Order on this motion is as follows:

653 Ninth LLC (the Defendant)'s motion to dismiss pursuant to CPLR § 3211 is denied in its entirety.

Pursuant to an Agreement of Lease (the Lease), dated April 17, 2012, between Romcargio LLC (the Plaintiff), as tenant, and the Defendant, as landlord, Plaintiff leased the North Store (as such term is defined in the Lease) for a ten year term. Pursuant to Section 31 of the Lease, the Plaintiff deposited with the Defendant a security deposit.

The Plaintiff commenced this action against the Defendant for return of its security deposit and the Defendant moved to dismiss pursuant to CPLR § 3211 arguing that the Plaintiff failed to terminate the Lease properly in accordance with Section 72.9 of the Lease. Terms used but not otherwise defined shall have the meaning ascribed thereto in the Lease.

A dismissal pursuant to CPLR § 3211(a)(1) based on documentary evidence may only be granted when the evidence utterly refutes the allegations of the claim and conclusively establishes the movant's right to relief as a matter of law. Goshen v. Mutual Life Insurance Company of New York, 98 NY2d 314, 774 N.E.2d 1190, 746 N.Y.S.2d 858, 2002 NY Slip Op. 05518 (2002)

The Defendant argues that the Plaintiff did not comply with Section 72.9 of the lease when it sent the Vacate Notice because the Plaintiff did not move out by the date set forth in the Vacate Note. The argument however is unavailing. Section 72.9 of the Lease provides:

Tenant shall have the option to terminate this Lease at any time, upon six (6) months' prior written notice (the "Vacate Notice"). If Tenant vacates the premises on or before the date specified in the Vacate Notice and pays all rent and additional rent up to and including the date in the Vacate Notice, Tenant shall have no further liability pursuant to Articles 17, 18, 19, 45 or elsewhere in this Lease. If the Tenant serves the Vacate Notice on less than six (6) months notice, the Tenant shall owe rent and additional up to and including the date in the Vacate Notice plus an additional three (3) month's rent as penalty for short notice.

In other words, the Plaintiff, as tenant, had the right to terminate the Lease on six months notice and was obligated to pay all rent and additional rent up to and including the date in the Vacate Notice. However, if the Plaintiff served the Vacate Notice on less than six months notice, the tenant would owe rent and additional rent up to the date in the Vacate Notice plus an additional three months rent as penalty for such short notice. To wit, if the tenant moves out on six months notice, the tenant would pay all rent and additional rent up to the date the tenant vacates and if the tenant moves out on less than six months notice, the tenant would still be obligated to pay all rent and additional rent up to the date that the tenant vacated the premises plus an "additional three (three) month's rent as penalty."

Pursuant to a letter, dated May 26, 2017 (the May 26, 2017 Letter), from Tartina and signed by Carlo Di Giulio, Owner, to Liz-Serrano-Rodriguez on behalf of the Defendant, the Plaintiff sent the Defendant a letter indicating that Plaintiff was exercising its option to terminate the Lease on six months notice. The May 26, 2017 Letter provided:

Reference is made to that certain Agreement of Lease ("Lease Agreement), made as of April 17th, 2012 between 653 Ninth LLC as landlord and Romcargio LLC as tenant ("Romcargio"), for the lease of the premises [*2]located at 653 Ninth Avenue, New York, New York 10036. Terms not otherwise defined herein shall have the respective meaning(s) ascribed to them in the Lease Agreement or any other document entered into in connection with the Lease Agreement.Pursuant to paragraph 72.9 of the Lease Agreement, you are hereby notified that Romcargio is hereby electing to terminate the Lease Agreement effective on June 01st, 2017, that being more than 6 months after the date of this Vacate Notice.

The Defendant argues that the Vacate Notice is defective and should be disregarded. That is, inasmuch as the Vacate Notice said it was "effective on June 1, 2017", the Defendant asks the court to interpret this language to mean that the Plaintiff intended to surrender the premises in six days.

It is undisputed that at no time did Defendant indicate that it was rejecting the Vacate Notice as defective when the Plaintiff did not move out by June 1, 2017. In addition, it also undisputed that Plaintiff did move out within six months following sending the Vacate Notice. Moreover, the Lease provides that if the Tenant serves the Vacate Notice on less than six (6) months notice, as the Defendant points out, the Tenant shall owe rent and additional up to and including the date in the Vacate Notice plus an additional three (3) month's rent as penalty for short notice. Significantly, the Lease does not say that if the Tenant fails to surrender the premises on the date set forth in the Vacate Notice, the Vacate Notice shall be deemed ineffective. Moreover, accepting the Defendant's interpretation of the Section 72.9 of the Lease, the Plaintiff would only be responsible for 3 months of rent as a penalty for the short notice. That said, the more credible interpretation of the Vacate Notice and the one consistent with what actually occurred is that the Plaintiff sent the Vacate Notice effective the 1st day of the next month intending to vacate and the surrender the premises within 6 months thereafter.

Accordingly, the motion to dismiss pursuant to CPLR § 3211 is denied in its entirety.

Dated: June 27, 2018

______________________________

Hon. Andrew Borrok

J.S.C.