Franpo Realty LLC v Power Furniture, Inc.
Annotate this CaseDecided on May 14, 2018
Civil Court of the City of New York, Kings County
Franpo Realty LLC, Petitioner,
against
Power Furniture, Inc., Respondent.
52472/18
Petitioner's Attorney:
Eric N. Pitter, Esq.
Kossoff PLLC
217 Broadway, Suite 401
New York, NY 10007
Respondent's Attorney:
Regina Felton, Esq.
Felton & Associates
1371 Fulton Street
Brooklyn, NY 11216
Odessa Kennedy, J.
Petitioner, as the landlord and respondent, as the tenant, entered a ten-year lease on July 22, 2015, agreeing that respondent would occupy the subject premises for "sale of furniture and related items provided such use is in accordance with the Certificate of Occupancy for the building." The parties signed the lease and initialized all pages. The lease replaced a ten-year lease which expired in September of 2015.
On August 17, 2017, the NYC Building Department issued numerous Building Code Violations regarding the subject premises. The Building Code Violations include lack of system of automatic sprinkler, "maintaining the building in complete disrepair", "pieces of ceilings and walls are falling down", "multiple cracks throughout the building", failure to provide adequate exits—two exits on each floor, occupying the premises contrary to the certificate of occupancy, the installation of "steel structure installed at rear of building" and "steel plates" at the second floor.
On September 18, 2017, the parties met to discuss the violations. On that date, they rescinded the lease by signing a "lease cancellation." Respondent claims that he signed the lease cancellation because the petitioner informed him that the respondent could not afford the [*2]hundreds of thousands of dollars that would be required to cure the above violations including the installation of a sprinkler system on all floors. Petitioner contends that it was the respondent who advised of lacking the funds to cure the above violations.
In a September 28, 2017 letter to the petitioner, respondent's attorney claimed that the lease remained in full force and effect; that the 'lease cancellation' was void as there had been no mutual consent to cancel the lease. Counsel contended that the 'lease cancellation' was signed when petitioner was present with counsel, which petitioner denied, while respondent was pro se. Subsequently, respondent resumed payment of rent which the petitioner accepted.
On December 13, 2017, petitioner served upon respondent a Five-Day Notice of Default which enumerated alleged violations of the lease with reference to the lease provisions, required respondent to cure the violations by December 27, 2017, and placed respondent on notice that the failure to cure will result in termination of the tenancy. The Court finds the Notice to Cure valid. The notice was sent by certified mail evidenced by the certificate of mailing and an affidavit of service.
On December 29, 2017, petitioner served respondent a three-day Termination Notice stating that respondent's tenancy is effectively terminated on January 12, 2018 as respondent did not comply with the Notice of Default. The notice was sent by certified mail evidenced by the certificate of mailing and an affidavit of service.
Respondent testified that he did not take any steps to cure any of the afore-described violations prior to December 27, 2017 expiration of the cure period or even prior to the termination of the lease.
The respondent also contended that he did not have the "thousands" of dollars that may take to cure the violations, and notably, that as he did not cause the conditions resulting in the above violations, he had no responsibility to cure the condition.
It is well settled that if a tenant disputes the basis for the default after a notice of default has been served, it must obtain a Yellowstone injunction prior to the termination of the cure period. A Yellowstone injunction enables a tenant to toll the expiration of the default notice until a determination is made as to whether a default exists and whether it is the tenant's responsibility to cure.
In the case at bar, respondent never sought a Yellowstone injunction. The expiration of the default notice was not tolled and the tenancy effectively terminated on January 12, 2018.
Even had respondent obtained the Yellowstone injunction which it never sought, respondent's position that he is not responsible to cure various conditions, because he did not cause a condition is misguided. Respondent's responsibilities to repair or cure are defined by the terms of the lease and not by whether respondent caused the conditions.
Paragraph 30 of the lease provides that if the City or State department or official require the installation of a sprinkler system, "Tenant shall at tenant's expense, promptly make such sprinkler system installations whether the work involved shall be structural or non-structural in nature."
Paragraph 51 of the lease states that the tenant shall at its own cost obtain proper "certificates of whatsoever kind or nature from all authorities necessary or required for the occupation and use of the premise." Moreover, tenant shall make "any and all repairs to the premises necessary to keep premises in good repair."
Not only did the respondent not seek a Yellowstone injunction, but he failed to demonstrate any diligent effort to install the sprinkler system, or cure any of the alleged [*3]violations or defaults prior to the expiration of the cure period or prior to the termination of the lease on January 12, 2018.
Based on the above, and notably that respondent never sought a Yellowstone injunction to stay the cure period, the tenancy was effectively terminated on January 12, 2018.
While the tenancy was terminated by operation of law on January 12, 2018 as respondent never sought a Yellowstone injunction to stay the cure period, the notion that petitioner waived the lease provisions requiring the respondent to occupy the premises pursuant to the ceritificate of occupancy, lacks merit, even had the respondent obtained the prerequisite Yellowstone injunction to prevent the January 12, 2018 termination of the lease. While the occupation of the premise as a furniture store is not consistent with the certificate of occupancy, Paragraph 25 of the lease clearly states that "no provision of this lease shall be deemed to have been waived by the owner unless such waiver be in writing signed by owner." Similarly, Paragraph 2 of the lease explicitly states that the premises shall be used for sale of furniture "provided such use is in accordance with the certificate of occupancy of the building." Respondent failed to submit any evidence that the "owner" signed any waivers, or any evidence that respondent took steps to amend the certificate of occupancy. While the Court does not deem respondent's argument regarding waiver as meritorious for the foregoing reasons, the issue of waiver is not before the court as the tenancy was terminated on January 12, 2018 absent a Yellowstone injunction tolling the cure period.
The Court notes that the trial of this summary proceeding, which by its nature is a statutorily expedited proceeding, commenced on April 11, 2018 and ended on May 4, 2018. The Court initially granted the parties leave to submit post-trial memos in anticipation that the submissions would be made expeditiously as time is as a matter of law of the essence. However, the Court learned that the submissions would delay the matter for several months as the Court reporter informed that the transcripts would not be available for two months while one of the parties requested that the submissions await its receipt of the transcripts.
The Court is hereby vacating any prior orders which permitted the parties to furnish post-trial Memorandum of Law. The Court does not need nor will accept any post-trial submissions.
The summary proceeding is an expedited proceeding governed by statute which recognizes that time is of the essence by the virtue of the nature of the proceeding and that delay would impose hardship on the parties.
More significantly, Court does not have the authority to further prolong the matter as it lacks jurisdiction over the case. The tenancy was as a matter of law terminated on January 12, 2018 as respondent failed to seek a Yellowstone injunction to toll the cure period. As the tenancy has been terminated, the Court does not have the power to adjourn the matter or reinstate the tenancy.
Based on the foregoing, petitioner is awarded final judgment of possession. Warrant of eviction is issued forthwith. Execution of the warrant is stayed until May 29, 2018.
Dated: May 14, 2018
ODESSA KENNEDY
Judge of the Civil Court
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