Progressive Cas. Ins. Co. v 809 Broadway Holding LLC

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Progressive Cas. Ins. Co. v 809 Broadway Holding LLC 2020 NY Slip Op 31946(U) June 17, 2020 Supreme Court, New York County Docket Number: 155886/2019 Judge: Debra A. James 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] NEW YORK COUNTY CLERK 06/22/2020 04:41 PM INDEX NO. 155886/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/22/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Justice X -------------------------------------------------------------------------B & E 813 BROADWAY lAS MOTION 59EFM PART HON. DEBRA A. JAMES LLC INDEX NO. 155886/2019 MOTION DATE Petitioner, 11/07/2019 MOTION SEQ. NO. 001 - v809 BROADWAY DECISION + ORDER ON MOTION HOLDING LLC, Respondent. ------------------------------------------------------------------------- X The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, 22, 23, 24, 26, 27, 28,29,30,31,32,33,34,35,36,38,39 MISC. SPECIAL PROCEEDINGS were read on this motion to/for ORDER Upon the foregoing ORDERED that the petition LLC, for a judgment &n Rules ~ 713(7) ORDERED November documents, that the License 25, 2017 of petitioner of possession is granted it is pursuant B&E 813 Broadway, to Real Property Laws in part; and it is further and Access Agreement (License) permitting respondent dated to enter the I premises at 809 Broadway, petitioner (Adjoining New York, New York, owned by Property); First Amendment dated May 31, 2016; Second Amendment January 2017; and Third Amendment License dated First Amendment, terms on January to the License to the License dated December the License having dated 2018 to the expired 31, 2019, and ended upon the expiration 155886/2019 B & E 813 BROADWAY LLC Motion No. 001 VB. 809 BROADWAY HOLDING LLC 1 of 7 by its of the Page 1 of 7 [*FILED: 2] NEW YORK COUNTY CLERK 06/22/2020 04:41 PM INDEX NO. 155886/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/22/2020 10-day period on May 27, 2019, by the Notice to Quit dated May 17, 2019; and is further ORDERED and ADJUDGED of possession against respondent, forthwith, and judgment the Court, with execution from service entered, shall have a judgment and a warrant accordingly, of such warrant by the Clerk of a copy of this order of notice to carry out, as expeditiously 1 of the re-opening shall be issued stayed > respondent phase that petitioner for thirty as possible paperwork by the New York City Department Property; during of New York City, with the cooperation including the removal days of entry to allow of the petitioner, required of of remaining its completion, roof protection as owner, of any of Buildings, from the Adjacent and it is fu~ther ORDERED that the first and second counterclaims and shall continue; ORDERED are severed and it is further that there are triable to such counterclaims, which is~ues of fact with respect shall be tried forthwith pursuant to CPLR ~ 410; and it is further ORD~RED that respondent/counterclaimant from entry of this order, of entry upon counsel the General serve and readiness Clerk's file with serve a copy of this order with 20 days notice for all parties hereto and upon the Clerk of Office (60 Centre said Clerk (with respect 155886/2019 B & E 813 BROADWAY Motion No. 001 shall, within Street, a note to the latter, LLC VS. 809BROADWA of issue neither Y HOLDING LLC 2 of 7 Room 119) and shall and statement party has of sought Page 2 of7 [*FILED: 3] NEW YORK COUNTY CLERK 06/22/2020 04:41 PM INDEX NO. 155886/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/22/2020 discovery pursuant and Clerk such calendar to CPLR ~ 408) and shall pay the fee therefor, shall cause the for such trial before ORDERED that shall.be made Protocol on Electronically the court's such upon the Filed (accessible placed, upon the and it is further General Clerk's Office set forth in the Clerk County and website be with the procedures Courthouse Cases to the undersigned; service in accordance matter Procedures at the "E-Filing" page for on at the address www.nycourts.gov/supctmanh) DECISION "A special proceeding to recover possession of property is available to obtain the removal of a licensee whose license has been revoked or has terminated; provided, as in other cases, the statutory 10 days' notice to quit is given. Under the statute, where one is a licensee of the person entitled to possession of the property at the time of the license, and: (1) his license has expired; or (2) his license had been revoked by the licensor; or (3) the licensor is no longer entitled to a possession of the property, the licensee and his tenants, assigns, or legal representatives can be removed by summary proceedings at the application of the person entitled to possession, provided the statutory 10 days' notice to quit is given. A person entitled to possession of property occupied by a licensee may bring an action to recover possession of the property and dispossess the licensee." 49 N.Y. Jur.2d Easements and Licenses in Real Property ~ 243 (May 2020 Update. Paragraph November Owner 1 of the License 25, 2017, as amended, (petitioner) 155886/2019 grants B & E 813 BROADWAY and Access Agreement (License), provides Project Owner LLC vs. 809 BROADWAY 3 of 7 "Adjacent (respondent) HOLDING LLC Motion No. 001 dated a revocable P~ge 3 of 7 [*FILED: 4] NEW YORK COUNTY CLERK 06/22/2020 04:41 PM INDEX NO. 155886/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/22/2020 Paragraph license". dated December 1 of the Third Amendment 2018, extended to the License the term of the License to January 31, 2019. The License Respondent revocable expired by its term on January does not dispute at will. Dept. 1977). scaffolding that the Agreement See Jossel v Filcori, However, respondent from the Adjacent could not remove the remaining permission License to access had expired. petitioner's Department Respondent cooperation of Builqings as of April property, also argues with respect paperwork (1st 205, 206 that it removed roof protection, the petitioner's was a license, 235 AD2d asserts Property 31, 2019. the 3, 2019, but as it needed since the that it needed to the New York City required to effectuate such ./ removal. This court disagrees with respondent's lacked the right to enter upon the Adjoining the roof protection because the License argument Property expired that it to remove by its terms. Until the expiration of the 10-day period under the Notice Quit that petitioner served on respondent on May 17, 2019, respondent However, respondent petitioner refused was free to remove the remaining prevented respondent's roof protection. has raised an issue of fact as to whether the removal request of the roof protection, to file the necessary with the New York City Building 155886/2019 B & E 813 BROADWAY Motion No. 001 to Department. LLC vs. 809 BROADWAY HOLDING 4 of 7 LLC as it paperwork In any event, by Page 4 of7 [*FILED: 5] NEW YORK COUNTY CLERK 06/22/2020 04:41 PM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/22/2020 this decision thirty INDEX NO. 155886/2019 and order, respondent (30) days to remove petitioner required must cooperate is afforded such remaining an additional roof protection and and submit any of the filings, from the owner, with the New York City Buildings Department, to enable same. The he.rein case is a special proceeding, respondent permitted has interposed in which Such counterclaim a counterclaim. under CPLR ~ 402, which states that there is shall be "a reply to a counterclaim". Respondent breached alleges as a first counterclaim that petitioner the license agreement, from March 17, 2017, by denying respondent access under the license, that it suffered to petitioner respondent damages during asserts protection Answer and in the amount of fees that it remitted that period. As a second counterclaim, that petitioner under the Third Amendment such removal 11, 2016 to January is entitled to no monthly after 2019, since petitioner of the roof protection, as well as required,under which is minimal fee prevented roof local law and rules. By (Reply), which was not verified by petitione~'s principal, petitioner denies such counterclaims. The court finds issues of fact as to both counterclaims, which can only be resolved The Verified the Verified Petition, Answer 155886/2019 B & E 813 BROADWAY Motion No. 001 at trial. See CPLR ~ 410. petitioner's and respondent's LLC vs. 809 BROADWAY supporting supporting HOLDING LLC 5 of 7 affidavit, affidavit, raise Page 5 of 7 [*FILED: 6] NEW YORK COUNTY CLERK 06/22/2020 04:41 PM INDEX NO. 155886/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/22/2020 issues of facts as both counterclaims, credibility. With respect petitioner breached respondent access to January 17, 2017, entitling As to the second did not remove the License to the Adjoining fees it remitted counterclaim, December 1, 2018 to April 2019. entitled to additional resolved entitling of the admits 2019, three months fees after April and prevented to the to additional However, that it whether fees from petitioner is 2019 rests on whether respondent Such issue must or from removing likewise be at trial. prevailed neither in this proceeding, at ,trial. responsible proceeding. Corp., petitioner roof protection. At this juncture, resolved 11, 2016 to the return respondent until April therefore the remaining from March date under the Thi~d Amendment impeded by denying for that period. License, not petitioner the issue Agreement Property respondent the scaffolding after the expiration implicate to the first counterclaim, is whether license which petitioner as the counterclaims Since there is no prevailing for their own attorneys' See Eastside 118 AD3d 474 155886/2019 B & E 813 BROADWAY Motion No. 001 nor respondent (lst Exhibition have must be party, fees incurred each are in this Corp. v 210 E. 86th St. Dept. 2014). LLC VS. 809 BROADWAY HOLDING 6 of 7 LLC Page 6 of 7 [*FILED: 7] NEW YORK COUNTY CLERK 06/22/2020 04:41 PM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/22/2020 The herein prejudice INDEX NO. 155886/2019 decision/order on attorneys' to either party moving, order awarding determination the recovery by order to show cause, of attorneys' of "the counterclaims for an fees upon at trial. ~.DEB«~~~A s;=-f's.t. 6/17/2020 DATE A CASE DISPOSED CHECK ONE: GRANTED D NON.FINAL X D1NIED ~ INCLUDES 155886/2019 B & E 813 BROADWAY Motion No. 001 GRANTED SUBMIT SETTLE ORDER APPLICATION: CHECK IF APPROPRIATE: fees, is without TRANSFER/REASSIGN LLC vs. 809 BROADWAY ~ HOLDING 7 of 7 IN PART ORDER FIDUCIARY LLC DISPOSITION APPOINTMENT D D OTHER REFERENCE Page 7 of 7

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