Gap, Inc. v 44-45 Broadway Leasing Co. LLC

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Gap, Inc. v 44-45 Broadway Leasing Co. LLC 2020 NY Slip Op 32403(U) July 21, 2020 Supreme Court, New York County Docket Number: 652549/2020 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 07/22/2020 01:53 PM NYSCEF DOC. NO. 32 INDEX NO. 652549/2020 RECEIVED NYSCEF: 07/22/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART HON. DEBRA A. JAMES PRESENT: lAS MOTION 59EFM Justice -------------------------------------------------------------------------- X 652549/2020 INDEX NO. THE GAP, INC. and OLD NAVY, LLC, 07121/2020 MOTION DATE Plaintiffs, 001 MOTION SEQ. NO. - v44-45 BROADWAY DECISION + ORDER ON MOTION LEASING CO. LLC, Defendant. ------------------------------------------------------------------------------ X The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 11, 14, 15, 16. 17, 18,19,20,21,22,23,24,25,26,27,28,29,30,31 INJ UNCTIONIYELLOWSTONE were read on this motion to/for ORDER Upon the foregoing ORDERED injunction whether that the plaintiffs' is GRANTED, cure periods documents, are hereby the plaintiffs it is motion retroactive for a Yellowstone to ~une 25, 2020, and the tolled pending are in default a determination of under the Lease dated 24, 2015 and the Lease dated June 24, 2015, respectively, pursuant to defendant's Notices of Default June and dated June 16, 2020; and it is further ORDERED preliminarily pending that defendant enjoined the outcome the rights, remedies is, effective from terminating June 25, 2020, plaintiffs' of this action and a declaration and liabilities of the parties; leases determining and it is further GAP, INC. vs. 44-45 BROADWAY Motion No. 001 652549/2020 LEASING CO. LLC 1 of 6 Page 1 of 6 [*FILED: 2] NEW YORK COUNTY CLERK 07/22/2020 01:53 PM NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 07/22/2020 ORDERED hereby that the Yellowstone conditioned plaintiffs' amount injunction upon an undertaking payment of $1,434,470, and defendant, monthly granted above is in the form of of use and occupancy for the premises based upon the monthly the Lease dated June 24, 2015-between in the fixed rent under plairitiff The Gap, and in the amount of $1,519,263, based Inc. upon the fixed rent under the Lease dated June 24, 2015 between Old Navy, LLC and the defendant, occupancy 2020, which that plaintiffs for July and it is further shall post a bond in the amount allegedly to secure owed by plaintiffs of the to for May and June 2020; and it is further ORDERED that counsel (59nyef@nycourts.gov) conference and at the time such rent with the Clerk of New York County of rent arrears defendant of use and except as to use and occupancy is due immediately; ORDERED $5,842,531 for a total amount in the sum of $2,953,733, due under each Lease, payment INDEX NO. 652549/2020 are directed the proposed discovery order no later than August shall also propose to file with lAS Part 59 18, 2020, which a date for a discovery 652549/2020 GAP, INC. vs. 44-45 BROADWAY Motion No. 001 LEASING CO. LLC 2 of 6 preliminary compliance order conference. Page 2 of 6 [*FILED: 3] NEW YORK COUNTY CLERK 07/22/2020 01:53 PM INDEX NO. 652549/2020 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 07/22/2020 DECISION In this declaratory adjudicating leases, judgment plaintiffs' plaintiffs First National action seeking an order rights under two certain seek a Yellowstone Stores v Yellowstone injunction Shopping commercial pursuant Center, to 21 NY2d 630 (1968) . Plaintiffs commercial to cure; have demonstrated lease; (2)~each received (3) each requested of the lease; and the ability to cure the alleged Shapiro the premises. (1) each holds a from the landlord injunction termination vacating that relief before (4) each is prepared default See Graubard v 600 Third Avenue Associates, Specifically, with respect the and maintains by any means Mollen a notice short of Horowitz Pomeranz 93 NY2d 508, 514 to the issue whether & (1999) each I commercial lease remains plaintiffs no longer hold a commercial action, extant, they seek a declaration is unpersuasive. Plaintiffs' has been no adjudication the alternative, defendant's lease because, that in this that each lease has terminated counsel is correct that as there of such claim and as they have pled, that they are entitled under each such lease, plaintiffs hold the two commercial argument to a rent abatement have demonstrated that they leases at this time .has been established. 652549/2020 GAP, INC. vs. 44-45 BROADWAY Motion No. 001 LEASING CO. LLC 3 of 6 Page 3 of 6 in [*FILED: 4] NEW YORK COUNTY CLERK 07/22/2020 01:53 PM INDEX NO. 652549/2020 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 07/22/2020 Defendant injunctive default next argues that plaintiffs relief before notice, termination did not request of each leasehold as the Order to Show Cause (OSC) dated under the June 25, 2020 never took effect as plaintiffs did not comply with the directives for service of such OSC. Such OSC required plaintiffs personally and supporting plaintiffs' establish Lorenzo, deliver papers service to defendant, such service. argues between to the Secretary 306 and service of State does not Eugene This court disagrees. this court's upon an agent designated Di entitlement of statutory Moreover, Company through Di Lorenzo, as argued by plaintiffs, defendant to designate to that agent met the OSC's directive. This court also concurs with plaintiffs' 652549/2020 GAP, INC. VS. 44-45 BROADWAY Motion No. 001 LEASING CO. LLC 4 of 6 service on Limited thus delivery personal supra, of service of State as its agent for service constitutes Law ~ so not controlling the Secretary servic~ delivery from a default to the method Law ~ 301(b) required the Corporation to relief construction, with respect (1980) under CPLR 318, for the Thus, the issue in Eugene intention under the OSC. examined service upon a corporation of determining was a question as that decision of State under the Business under CPLR 317. and mail" that Inc. v A.C. Dutton Lumber Co., Inc., '67 NY2d 138 distinction Liability and complaint, and defendant upon the Secretary is not to the contrary, purposes the OSC, summons that of process, counsel and that "nail under CPLR Page 4 of6 [*FILED: 5] NEW YORK COUNTY CLERK 07/22/2020 01:53 PM INDEX NO. 652549/2020 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 07/22/2020 308(4), and defendant the process searched raises no issue of fact with respect server's statements for but unable to find defendant's any person of suitable residence age and discretion Wholesale Corp., 466, 468 or to deliver adequately protected of an appropriate rent arrear1's security, and therefore Inc., 273 AD2d that "defendant or offer no evidence an undertaking of real estate, 5 of 6 [was] court for a bond to ultimately of any such of plaintiffs' the global pandemic LEASING CO. LLC 11, is warranted. impact on the retail industry, 652549/2020 GAP, INC. VS. 44-45 BROADWAY Motion No. 001 in improvements the appeals should defendant as set forth in the affidavit senior director of dwelling undertaking, finding of no necessity Here, plaintiffs devastating business at its own expenseu, prevail. However, to a person by the value of the building the trial court's pay the alleged to serve mailingu• tenant demonstrated by plaintiff 138 AD2d server did not Co., Inc. v Tsung Tsin Assn, where the plaintiff his Corp., the' papers at the party's to the question Kuo Po Trading upheld Turnpike that it was impossible age and discretion Turning or the court in Norlee (2d Dept. 1988), where the process abode with a follow-up installed at either member from those before "with due diligence, suitable managing Thus, the facts at Inc. v 4111 Hempstead [the] party personally having office building. or defendant's bar are distinguishable state, of due diligence, to arising has had a from the Page 5 of 6 [*FILED: 6] NEW YORK COUNTY CLERK 07/22/2020 01:53 PM INDEX NO. 652549/2020 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 07/22/2020 governmental closing with no date certain extraordinary of malls circumstances, June 2020 rent arrears (10%) Considering for reopening. court sets use and occupancy the Lease, in New York City, in the exercise 22 these of discretion, and the undertaking based upon the monthly from March the for May and fixed rent under as of June 2020, each reduced by about ten percent • 7/21/2020 DATE. '-11/ a zI, ,. DEBRA A. CASE DISPOSED CHECK ONE: X GRANTED APPLICATION: SEUlEORDER CHECK IF APPROPRIATE: INCLUDES ~ D NON.FINAl DISPOSITION IN PART SUBMIT ORDER TRANSFER/REASSIGN 652549/2020 GAP, INC. VS. 44-45 BROADWAY Motion No. 001 GRANTED DENIED LEASING CO. LLC 6 of 6 ~ FIDUCIARY L __ J.-M JA"MES,:fS:c. APPOINTMENT D D OTHER REFERENCE Page60f6

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