255 Butler Assoc. LLC v 255 Butler LLC

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255 Butler Assoc. LLC v 255 Butler LLC 2019 NY Slip Op 33173(U) October 9, 2019 Supreme Court, Kings County Docket Number: 511560/15 Judge: Sylvia G. Ash 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 10/24/2019 09:17 AM INDEX NO. 511560/2015 NYSCEF DOC. NO. 917 RECEIVED NYSCEF: 10/24/2019 At an IAS Court of the of State of Kings, County New at the New Brooklyn, Comm Part Term, of the held York, in Supreme and at Civic Courthouse, on the York, 11 . day for the Center, offOctobeat, 2019. N P R E S E T: . HON. SYLVIA G. . 7 ASH, Justice. - - - - - - - - - - - - - - - - - - - ----- _____ 255 BUTLER ASSOCIATES - - - - - - -X LLC, O-< Plaintiff, - against 255 BUTLER Index AKKAD ARIEL LLC, NATHAN ACCAD, - AKKAD a/k/a ARIEL NATHAN a/k/a SOLOMON AKKAD a/k/a SOLOMON BENJAMIN AKKAD a/k/a BENJAMIN 511560/15- No. ACCAD, ACCAD and --t ACCAD, co ..,cy -52 Defendants. - - - - - - ---------------The followine Notice oaners Affidavits Motion to Show Affidavits Affidavits Upon granting Butler, commercial it LLC 14 read - --- ---- -X Papers herein: Annexed partial foregoing (Tenant) lease, papers moves as alleged in this (in for commercial motion judgment: summary (Landlord) 1-5 6-10 7-10 I1-13 11-13 (Affirmations) the Numbered Cause/ (Affirmations) LLC Associates -- and (Affirmations) Opposing 1 to numbered of Motion/Order Petition/Cross Reply --- a judgment in Landlord's landlord/tenant sequence (1) on its declaring July 27, 1 of 13 20) first that 2015 for cause no notice 14 dispute, an of event order, action of to cure . plaintiff255 pursuant to against default Butler CPLR 3212, defendant exists or Landlord's under September 255 the [*FILED: 2] KINGS COUNTY CLERK 10/24/2019 09:17 AM INDEX NO. 511560/2015 NYSCEF DOC. NO. 917 1 1, 2015 RECEIVED NYSCEF: 10/24/2019 notice of termination, and Landlord cross-moves summary judgment Defendant 3212, it granting that declaring cure and its Tenant in was September (in on motion notice cause lease the of sequence first the under first Landlord's dismissing default 2015 11, (2) an order, and action, it affirmative third for 21) of when and defenses. it granting served.its to CPLR pursuant notice 2015 27, July a judgment to termination. Background The Lease On March with and Tenant 224 Nevins 1 1 of Guidelines[,]" into Tenant's election, involved unit into 1 I of 2 The See initial definition the certificates plans, term of the of "Design also Street, retail, and was approvals lease known as 484 provides that (Lease) Baltic Street Tenant "shall the Design may required "[a]s required to with in Article 2 2 of 13 include two or soon additional 1 of Lease. located a hotel, any as commence and with accordance warehouse hotel applications is 49 years Guidelines" of the which in Project residential, specifications, Lease the conversion property, Tenant Building," of Delays) Tenant's commercial Lease, commercial triple-net, Butler "Conversion Unavoidable commercial, the development ¹ to 49-year,I a (Property). entitled Lease, into at 255 property Brooklyn (subject consents, design the a multi Article permits, in which "initially entered Landlord's Street, pursue diligently Landlord 2013, regarding Article Under 22, other and legal practicable" the final 10-year Project" construction options. on the Property subsequently use" to and at (Project).2 obtain submit plans "all the and [*FILED: 3] KINGS COUNTY CLERK 10/24/2019 09:17 AM INDEX NO. 511560/2015 NYSCEF DOC. NO. 917 RECEIVED NYSCEF: 10/24/2019 specifications Lease "for totheLandlord contains construction no Article 10 of Property. the Completion" of the (I) consent Building: the (1) subleases (2) Completion of Leasehold Notice to to Cure), planned a number conversion ofthe the . . Building Landlord," the In or before would ." theNotice September of a direct or course or . . (3) Tenant's Project. the Lease prior in relevant without Landlord's interest indirect anticipation the collateral "Substantial part: Completion in in to the or subletting], on transfers Substantial of Mortgages, provides, interest (emphasis the permitted to Building served Tenant . . . Substantial assignment subleases the of in of to a for as security added). defaults, Tenant . Tenant Property into at the to alleged that: Companies July has failed 1, 2015 Cure, 1, 2015, Inc, Landlord and to pay in the amount York demanded advised that that if theLease. 3 3 of 13 is City the Tenant defaults pursue" commercial first seeking for taxes (emphmis cure all were the complex. a sublet contemplating property (Notice "diligently a multi-unit $149,571.66" of to "without (WeWork) New failed "Tenant (1) Default" to CureLease that located Cure witha"Notice including building "Tenant to 2015, of WeWork (2) beginning terminate Notice to and period 27, alleging Additionally, loan be prior of ." the Notably, Cure on July Landlord, the in Lease therefor normal Mortgagee a construction Landlord's the the shall transfer in for Subletting, [restrictions foregoing required being only." purposes timetables interests of (a) transfers following or "Assignment, of 10.1 the "Notwithstanding informational Etc." the transfers Section Project, for deadlines addresses Tenant's the and milestones, Lease Regarding review its the the of consent the of Premises for the on added). violations of not by cured that Lease date, it [*FILED: 4] KINGS COUNTY CLERK 10/24/2019 09:17 AM INDEX NO. 511560/2015 NYSCEF DOC. NO. 917 RECEIVED NYSCEF: 10/24/2019 Landlord's Notice Landlord, Tenañcy" that the first not The and for spent (id. at ¶¶ its vacate By default AD3d the York that upon Lease." "Notice a Landlord failure the property taxes commenced this of cure the of Termination the Premises of to terminate to timely Notice for Termination elects "hereby Tenant's Importantly, City over 37 649 in under the and the was [2019]). Yellowstone The Akkad amended th.e defaults expressly ." . . with complaint granted appeal (see order, a September 12, 255 2018 order, 4 4 of 13 times that this since of of to show verified its cause, complaint. that declaring pursuing the entering into Landlord for LLC denied and conversion Lease" the the converting the executing motion court and 162-168). "[a]fter Associates, order a judgment pursuit "member[s] Tenant's the diligently its diligent Butler injunction. at ¶¶ at all by amend seeks been alleges court 2016 has property this 20, to complaint allegedly 13-16). leave Landlord against moved, complaint are at ¶¶ on granted "Tenant in connection (id By later (amended that action simultaneously verified commercial defendants affirmed was Lease alleges million 1). and amended a multi-unit $13 Tenant Tenant complaint an April which injunction, . . . based with Tenant advised defendants,3 Akkad action 3 The individual management" 4 173 of into Building 20 15, 22, amended "has ." New Injunction.4 cause did the 2015 to Cure paid individual a Yellowstone Tenant . . has served 2015, which 30, Notice September principals, The 11, Action On of Termination), "Tenant Instant for of in Landlord's admits The September September effective forth set on (Notice Lease Termination of building lease responsible a Yellowstone v 255 Butler, Landlord's LLC, motion to with [*FILED: 5] KINGS COUNTY CLERK 10/24/2019 09:17 AM INDEX NO. 511560/2015 NYSCEF DOC. NO. 917 RECEIVED NYSCEF: 10/24/2019 & Landlord, Tenant as a hotel but of the entire further then at ¶ 3 [emphasis affirmative are Tenant's not 28, that in (answer its advised a to to a potential added]). Landlord purported as a pretext Landlord about notice take ñrst to and over the the third breaches to cure Tenant's amended complaint individual the term The amended the potential . . . first building, long sublease complaint WeWork three containing WeWork lucrative Akkad material deal. of obligations the Project, 50 and asserted under the as required are Net under and after 2019, for partial summary event of default exists that Tenant's Lease" the and Net 52). document judgment under and discovery on the its first and Lease, depositions party cause of action for a judgment Landlord's dismissing completed,5 were declaring first and Landlord Tenant's 2017, opposed prior the súmmary Tenant motion moved based judgment for on motion the judgnient summary need was for discovery, denied with discovery. 5 5 of 13 on the first pursuant leave to renew cause third . defenses. In April that Lease, . 5 ." asserted Motion moved affirmative . collectively therein defenses its at ¶¶ defendants allegations affirmative pursue diligently Judgment 14, and denied material failing to Summary no pursuant at ¶ 2 [emphasis (id served Landlord's On February Tenant ." Tenant complaint, by "default Tenant's after 2018, amended barred curable" . . concept of its redevelopment pursuing added]). defenses. "claims space default' of February the office Landlord 'events answered diligently "[s]hortly transaction, On began WeWork with that manufactured (id as a shared building alleges sublease immediately of and action, to CPLR 3212 after completion (f). of is [*FILED: 6] KINGS COUNTY CLERK 10/24/2019 09:17 AM INDEX NO. 511560/2015 NYSCEF DOC. NO. 917 As motion RECEIVED NYSCEF: 10/24/2019 a preliminary is its abandoned purported In this the taxes Tenant were Facts in the opposed Project." 2016, that Tenant was served. had only motion Tenant posed and Tenant through officer asserts that more "produc[ing] the and submits than Boymelgreen's he provides the a detailed terms it and only one affirmation addition in support how of the of question: Rule '[w]hether Akkad's at the facie right to [its] ofits "Tenant has Lease." 6 6 of 13 partial been he pursuit summary and continues of Cure by Project" the Tenant's sole transcript, Tenant motion, in which judgment to be to judgment summary deposition admitted Notice (Boymelgreen), Boymelgreen's pursued diligently at which diligent pursuit' of Material Statement partial in Notices" 'diligent Landlord's that motion Predicate plaintiff Boymelgreen to 19-a that admits judgment deposition, time WeWork. with Tenant's this Tenant's Landlord Pretextual on "waived, regarding sublease addressing to [its] response Shmuel Cure summary the at issue previously in which in demonstrating of In explanation extent prima to partial default Ariel its Notice contemplated 2017 WeWork with the Landlord Termination, April references documents member. of the "[i]n testimony in alleged to established 16,000 conditions each since Project, Default" of "Event only Tenant's its that sublease deposition managing notes Landlord adraft and references the the defaults Notice of only the taxes sufficiency Additionally, pursue Landlord's also Project.'" that alleged property Tenant Further, June other 2015 Tenant asserts diligently produces paid. "Landlord ofthe to the to pay it "addressed and with failure withdrew" failure regard, which the alleged or Tenant matter, in full compliance [*FILED: 7] KINGS COUNTY CLERK 10/24/2019 09:17 AM INDEX NO. 511560/2015 NYSCEF DOC. NO. 917 RECEIVED NYSCEF: 10/24/2019 to According use and occupancy, and consultants, details into the market other the including studies and an submitted to expenses to commission application an hand DOB to .and of the for [a] the on the of 16, the retention 2013, of "[w]ith that determination[,]" resolution Property a hospitality affirms August [of] Boymelgreen and Boymelgreen about myriad [a] converting studies massing or of retention the rent, including Lease..." of Property, report. million, fees the feasibility the zoning $18 under to perform works, of Insurance, the feasibility in excess its rights a survey architect or in determine a structural in reports of of generate spent to enforce Tenant by retention the consultant these and taken steps consultant, another costs has Impositions costs, carrying various a hotel, "Tenant Boymelgreen, Tenant . . . which was approved. to Boymelgreen, According financing for detailed narrative structural market 2014, Design affirms that, a copies in May of 2013, the 2014, of which "Tenant "to are and Project, Tenant filed included many other that a comprehensive to of Job retain which #320812377 7 7 of 13 the for included an and with architect DOB the a hotel and record. "seeking designer, needed Tenant a and to work Boymelgreen approval to hired operator" designer a affirms engineers 2013, and study a hotel architect[,] for to secure Boymelgreen December in impact record. consultants in broker economic search a primary are mortgage an in a search affirms agreements copies perform to began conduct an exclusive retained consultants Boymelgreen executed of then engineer, hotel." consultant Tenant Phase retained mechanical for plans hospitality March fall the engineer, develop and Project, appraisal, throughout that, the the Tenant in on also to perform [*FILED: 8] KINGS COUNTY CLERK 10/24/2019 09:17 AM INDEX NO. 511560/2015 NYSCEF DOC. NO. 917 RECEIVED NYSCEF: 10/24/2019 demolition, approval for permit removal including work structural October on 3, 2014. Boymelgreen diligently to Boymelgreen senior and affirms the seeing with a timely stall in much of worked interested Landlord's Five days the with July from March that Project a draft 27, 2015, Gowanus Tenant's "WeWork's original hotel conversion WeWork and developed." use was interest avoid in would Tenant a potential "repurpos[ing] how described location by Brooklyn, provided and interested Boymelgreen as a WeWork in ." . . approached a facility plan was Brooklyn was opening was lender no of area employ.ee in interest that concept be a sound Tenant approach Project." contacted Ariel a shared into copy broker that been the he an the a hotel a 2014. throughout of mortgage explained the primary in 2015, financing" of Boymelgreen a sublease. on for hotel expressed already modify affirms counsel later, a lack had to changed in to that quickly had who its by end about to change Boymelgreen Tenant or a conversion that a high pursuit as issued subsequently submissions well as fixtures, DOB that Tenant's informed Boymelgreen due design "determined [and] Building." Project the of "[i]n opportunity the was at WeWork representatives in Tenant that "[w]hile that mechanical DOB additional details affirms construction finance and existing Boymelgreen forward, and plumbing. partitions, structures[,]" on further moving willing of also of Landlord the Akkad office affirms proposed responded 8 8 of 13 in early space that on WeWork by serving July and concept, July 2015 22, sublease Tenant 2015, to inform that WeWork Tenant at Landlord's with the him Notice that was provided request. to Cure. [*FILED: 9] KINGS COUNTY CLERK 10/24/2019 09:17 AM INDEX NO. 511560/2015 NYSCEF DOC. NO. 917 RECEIVED NYSCEF: 10/24/2019 Led!crd's Landlord a number of and 2015; Termination and the Cure, after the the . . . elected Akkad admits Hotel single a idea nail without Hotel[,]" into the doing any deadlines, . . he ." asserts While that actual an to that or Akkad "where, have is expressly as here, of 11, "during and the Cure the 'Project' two which years, Tenant partial of action. in default was served when the on July Notice of two approximately of ." .. any for was transmittal approximately under cause "Tenant 2015, that of hired the and Notice to "[i]nstead, sometime in 2015 sublease would financing" and not argues the 'diligent would certainly concedes there is no 9 9 of 13 that specific consultants many appears Akkad construction Lease first that Notice September plan "Tenant Essentially, construction the cross-moves Tenant's confirms construction for and the added). appears investors time on alternative (emphasis record the Project complains Property." actual ." "Tenant attract diligently served . . yet pursued,' ' Tenant to on favor explains of signing of a Hotel 'pivot' that could Akkad in any its exist affidavit, the motion, at the to engaged WeWork to about to Lease Motion judgment the Akkad, the between not in continued his development Property studies was had the Tenant entire period Tenant pursuing defaults In summary Ariel under served." Cross a declaration mañager, those year half it obligations that was one partial granting its Judgment Summary Tenant's to Landlord's According 27, opposes judgment summary on and Opposition never to "Tenant that have the hav.e never "merely pursuit' of begun Lease time and hammered actually Project" before for the the and Notice no a studies commissioning the many whether considered contained set obtained "had the to Cure construction performance of an [*FILED: 10] KINGS COUNTY CLERK 10/24/2019 09:17 AM INDEX NO. 511560/2015 NYSCEF DOC. NO. 917 act RECEIVED NYSCEF: 10/24/2019 this (in case reasonable the time Tenant, for such are there least, very completion the the material of issues the development under performance whether including of of all fact of preclude the 'diligently law Landlord will imply asserts that judgment summary pursued' Tenant the Project) circumstances." the which the in favor development of "at of the Project the a . . ." . Tenant's Reply in Tenant, . asserts reply, "Landlord that has admitted Tenant everything did to diligently . pursue the and "[t]he this entire record the the furtherance asserts papers moving nature of that the Project notes to not argues the Landlord has a hotel the "May by failed to Tenant's to the by and "any a multi-use . . office 10 10 of 13 "Rule July a hotel developing ." of the Tenant building Project is not defined 27, the Lease is time in the of the clear for and Tenant therefore decline interpretation." 19-a Statement 2015 Tenant and then specific an of Disputed was argues not working building." office documents further was during definition should of judicial through activities Court in its the a reasonable "[t]he guise challenge that imposing admitted first argues 2015" 27, July dictionary ordinary Tenant the 2013 6, pursued energetically use Plans" Landlord through 6, 2013, "diligently Lease under May pursue" phrase nature." Lease that and should Final Project corroborating from and in have from that the "rewrite the modify of can on steadily that temporal or Facts" Undisputed Tenant not may Tenant addition, in is Commencement Tenant Court "this court invitation steadily that Construction Landlord's and to Lease Tenant which Commence In ." that asserts unambiguous, to . . 'diligent,' word prior is undisputed period and Lease, from Project attached that a breach shifting of the to the Lease [*FILED: 11] KINGS COUNTY CLERK 10/24/2019 09:17 AM INDEX NO. 511560/2015 NYSCEF DOC. NO. 917 RECEIVED NYSCEF: 10/24/2019 because "[t]he property it Lease desires Tenant permits expressly choose to type any of multi-unit commercial build." to Discussion judgment Summary and should, material 361, thus, fact 364 papers (Kolivas proof v Federallns. proof in the in admissible v Prospect Hosp., "The entitlement Alvarez, quoting form Univ. Med. Ctr., prima facie showing party to produce 64 of 967 320, issues NY2d at 324; NY2d of evidentiary of 851, entitlement proof action or defense 324 for [1986], for the fact" law, see 853 also to in sufficient v City If it judgment, admissible form 11 of 13 fails NY2d "the sufficient of at 562). NY2d a prima 75 AD3d burden 535, establish warrant Corp. 562 evidentiary fact (Alvarez of showing 537 the [2010], v New movant shifts the demonstrate Winegrad the all 557, facie to at 562; that upon NY2d issues of NY2d 35 Frank 49 court issues Gilbert evidence to if, to produce material make triable to York, York, is determined summary 11 ofNew 49 Zuckerman, [1985]). must of in day sufficiently [b]; 49 Zuckerman, her granted ofNew of or v Pomeroy, be judgment judgment (Manicone Andre (CPLR3212 v City tendering absence will existence citing his is established law summary summary of of the also judgment Zuckerman establish to as to ; see [2005] of a litigant doubt summary motion a motion is no 493 [1988]; the deprives as a matter party as a matter material 68 any sufficient of for cause 966, NY2d 68 proponent any of opposing to judgment, of absence favor 70 NY2d party there AD3d 14 the submitted, Co., and [1980]), when a motion However, that remedy employed v Kirchoff judgment directing be only [1974]). and is a drastic to the has the York made a opposing existence of [*FILED: 12] KINGS COUNTY CLERK 10/24/2019 09:17 AM INDEX NO. 511560/2015 NYSCEF DOC. NO. 917 material RECEIVED NYSCEF: 10/24/2019 issues of fact v Oppeñheimer, genuine issue of of action are had paid AD2d fact, the for the Essentially, which 148 the and the only the issue raised breached building into a multi-unit Tenant produced retaining to (5) perform Project an retaining consultants to that it sublease by summary judgment Lease by to failing Tenant was to constitute motion on and pursue" two defaults, that cured. was an of motion the of Tenant WeWork event first Lease. admittedly cross "diligently its parties' the is no at 364). Termination of Brokers there NY2d alleged sublease cannot this testimonial market an consultant (4) with complied other among exclusive perform default under of Notice If judgment exists contemplated WEWork the its Estate 562). 35 summary categories in such to default three stated any uncontroverted studies; massing identified Tenant's on of at (Andre, right Real never default. is whether conversion of the complex. by, a hospitality determined event Han NY2d 49 Zuckerman, no therefore, & (Garnham facie explicitly draft 11 of Article demonstrating the that admitted.that thus, also prima to Cure and taxes, Tenant evidence its Landlord Landlord Therefore, pursue" Notice action" the summarily declaring Landlord's consummated, be demonstrated a judgment property Additionally, should of ; see [1989] case sustainable. not a trial require 493 has Tenant Here, cause which things: to evidence its (1) obligation search for a hotel mortgage broker economic impact to to secure study 12 12 of 13 and voluminous under the a survey commissioning a consultant retaining and operator; generate financing a detailed (3) a structural for the narrative documentary Lease of the to "diligently Property; an architect retaining feasibility Project; (2) (6) appraisal; report; retaining and (7) [*FILED: 13] KINGS COUNTY CLERK 10/24/2019 09:17 AM INDEX NO. 511560/2015 NYSCEF DOC. NO. 917 Project. In contains that substantial in Landlord, the first its cause of not of branch action for in of with genuine work the construction on DOB phase the Design of the issues of material fact Project. the Project, the "diligently which of Phase the regarding pursued" nevertheless Tenant's a declaratory Landlord's to record Project. a trial require it is Accordingly, the designer filings the Tenant any and many reach to raise Notice judgment to Cure or motion judgment summary is granted; AND DECLARED ADJUDGED as alleged its yet that action. that ORDERED, Lease, did failed opposition, cause first evidenced evidence ORDERED on Tenant architect a primary Tenant addition, it is true While on to retain agreements executing the RECEIVED NYSCEF: 10/24/2019 that no Landlord's and it event.of Notice seeking a judgment is further default of exists under and Termination; the it further ORDERED that Landlord's first affirmative defenses and ORDERED This the third gre that constitutes branch Tenant's affirmative hereby Landlord's the of decision defenses summary and is and dismissed; order judgment summary it is the E Landlord's seeking first to dismiss and further judgment of and granted, motion motion cross is deni court. N T E R, J. S. C. HON. 0 I :6 WV 03 2.L30 SYLVIA G.ASH, JSC 6192 13 13 of 13 SKINE third is

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