20 St. Marks, LLC v St. Marks NY LLC

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20 St. Marks, LLC v St. Marks NY LLC 2020 NY Slip Op 32512(U) July 28, 2020 Supreme Court, New York County Docket Number: 651521/2019 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 07/29/2020 09:04 AM INDEX NO. 651521/2019 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 07/28/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY . PRESENT: HON. DEBRA A. JAMES PART lAS MOTION 59EFM Justice ------------------------------------------------------------------------ X INDEX NO. 20 ST MARKS, LLC, 651521/2019 MOTION DATE 11/22/2019 Plaintiff, MOTION SEQ. NO. 001 - vST. MARKS NY LLC and ST MARKS B H LLC, DECISION + ORDER ON MOTION Defendants. --------------------------------------------------------------------------- X The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 15,16,18,19,20,21,22,23,24,25,26,27,28,29,30,31, 32, 33, 34, 35, 37 were read on this motion to/for JUDGMENT - SUMMARY ORDER Upon the foregoing ORDERED motion that the branch (sequence number complaint is denied; ORDERED 3212(b), 001) seeking 20 St. Marks, summary judgment that upon a search of the record pursuant on its for unjust to CPLR enrichment of the and it is further that the branch judgment LLC's and it is further is dismissed; ORDERED it is of plaintiff the second cause of action complaint summary documents, dismissing Marks B"H LLC's counterclaim of plaintiff's defendants' for breach motion seeking St. Marks NY LLC and St. of contract is denied; and it is further ORDERED preliminary that counsel discovery 651521/2019 20 ST MARKS, LLC Motion No. 001 VS. are directed conference to appear on August ST. MARKS NY LLC for a 7, 2020, 12:30 PM via Page 1 of7 1 of 7 [*FILED: 2] NEW YORK COUNTY CLERK 07/29/2020 09:04 AM INDEX NO. 651521/2019 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 07/28/2020 Skype for Business conference before upon filing of the standard (sfc-conference@nycourts.gov) form request for at least two days such date. DECISION In this commercial LLC, moves pursuant judgment breach plaintiff 20 St. Marks, to CPLR 3212, for an ~rder granting St. Marks NY LLC and St. Marks BUH against (together, lease dispute, defendants), as to the causes of action of lease and unjust summary judgment dismissing asserts that plaintiff enrichment. Plaintiff defendants' is in breach summary LLC sounding in also seeks counterclaim, which of the lease for failure to pay rent. Background Plaintiff, December a bar owner, entered 26, 2017 for the premises New York, New York (hereinafter into_a commercial located at 20 St Marks "the premisesU), (Precious aff, New York St Cts Electronic lease on Place, from defendants Filing System [NYSCEF] Doc No. 10 ~ 10). Upon signing sum of $154,000.00, advance security the lease; plaintiff representing (at $22,000 per month), deposit (totaling tendered defendants the first month's and six $132,000 651521/2019 20 ST MARKS, LLC VS. ST. MARKS NY LLC Motion No. 001 months' in security) the rent in rent as (id. ~ 11). Page 2 of 7 2 of 7 [*FILED: 3] NEW YORK COUNTY CLERK 07/29/2020 09:04 AM INDEX NO. 651521/2019 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 07/28/2020 Structural the public plaintiff defects as planned terminated prevented the premises by plaintiff. the lease The lease states, from opening On February to 20, 2019, (id. ~ 14). in pertinent part, "If for any reason Landlord shall be unable to deliver possession of the Premises to Tenant on. any date specified in this Lease for such delivery, Landlord shall have no liability to Tenant therefore and the validity of this Lease shall not be impaired, provided however, to the extent the Premises is delivered after the date provided for herein, the Term of the lease shall be similarly extended day for day. This Section 1.03 shall be an express provision to the contrary for purposes of Section 223-a of the New York Real Property Law and any other law of like import now or hereafter in effect. Notwithstanding the foregoing, if for any reason, Landlord is unable to give possession to Tenant by May 1, 2018, Tenant may, at Tenant's sole option, elect to terminate this Lease upon which, Landlord shall promptly refund any pre-paid rent together with Tenant's Security Deposit" (lease, NYSCEF Doc No.2 at Article 1.03). Further, states the lease contains in part, "[f]ailure a "no waiver" clause by either party to declare default immediately upon its occurrence action in connection with such default default but such party default at any time thereafter" or delay that any in taking shall not waive shall have the right to declare (id. at Article any such any such 6.09). Discussion It is well-established movant that to obtain must put forth "proof in admissible [a] cause of action court as a matter or defense VS. ST. MARKS NY LLC 3 of 7 judgment, the form" to "establish 'sufficiently of law in directing 651521/2019 20 ST MARKS, LLC Motion No. 001 summary to warrant judgment' the in the Page 3 of 7 [*FILED: 4] NEW YORK COUNTY CLERK 07/29/2020 09:04 AM INDEX NO. 651521/2019 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 07/28/2020 [movant's) favor" NY2d 1065, 1067 (Friends of Animals [1979), quoting v Associated CPLR 3212 [b)). Fur Mfrs., 46 If the movant I fails to meet this initial burden, denied "'regardless of the sufficiency (Vega v Restani Constr. quotation and citation marks this initial factual Cor~, issues (De Lourdes [2016); Zuckerman Corp., judgment The elements resulting 479 damages by producing must be denied evidence, a trial in of material of a triable of contract claim are: (2) performance Furia v Furia, contends to deliver 2018. According to the affidavit member of 20 St. Marks, VS. issue of Hous. (1) the of the contract (3) breqch by the other party; lease by failing 651521/2019 20 ST MARKS, LLC Motion No. 001 [1980)). (Gross v Amalgamated (Morris v 702 E. Fifth St. HDFC, Plaintiff to [1st Dept 2002)). [1st Dept 2007),. citing Dept 1986)). meets Torres v Jones, 26 NY3d 742, 763 of a breach party; [internal shi fts to the opposition to require of a valid contract; by the injured [2012) v City of New York, 49 NY2d 557, 562 298 AD2d 224, 226 existence papers'" Once the movant If there is any doubt as to the existence fact, summary must be of the opposing omitted)). facie showing, form, sufficient judgment 18 NY3d 499, 503 burden,' then the burden rebut that prima admissible summary LLC, 116 AD2d that defendants possession ST. MARKS NY LLC 4 of 7 (4) 46 AD3d 478, 694, 695 breached of the premises executed 14 months and the by May 1, by Bob Precious, after signing [2d a the lease, Page 4 of 7 [*FILED: 5] NEW YORK COUNTY CLERK 07/29/2020 09:04 AM INDEX NO. 651521/2019 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 07/28/2020 defendants had yet to deliver Doc No. 10 <J[ disagree. premises, Keith Holden, plaintiff immediately attests manager of the subject that keys were provided after signing <J[ <J[ probing to of. the lease, plaintiff. into the flooring Defendants 3,9,14). Silks, LLC v 247 Realty, LLC accepted, readying of the premises and the tenant the place Defendants rely heavily on that basis, preclude defendants breached "actively waived in the process of operations." that right until Defendants 10 argue that, issues of fact that In addition, counterclaim, and its right to terminate 2018 deadline. judgment. a had been given future business it failed to exercise interposed Coast [1st Dept 2010]), tenant cooperated they have raised triable summary Doc when the keys had been delivered for contemplated after the May 1, on Pacific (76 AD3d 167, 175 claim that plaintiff the lease because perform (Holden aff, NYSCEF the Court held that the commercial possession months The property the locks, and in March 2018, had its engineer wherein (NYSCEF '-~ exploratory No. 21 of the premises 14). Defendants changed possession in their answer, alleging that plaintiff the lease by failing to pay rent and abandoning the premises. In its reply memorandum, plaintiff claims that the keys were only provided 651521/2019 20 ST MARKS, LLC vs. ST. MARKS NY LLC Motion No. 001 5 of 7 Page 5 of 7 [*FILED: 6] NEW YORK COUNTY CLERK 07/29/2020 09:04 AM INDEX NO. 651521/2019 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 07/28/2020 "for the purpose of monitoring [d]efendants' progress and so that [p]laintiff could access the space with its own contractors and professionals so that [p]laintiff could begin its construction immediately after [d]efendants' work was completed. This was not possession but rather a mere accommodation that was later revoked by [d]efendants which clearly informed [p]laintiff that it was not to enter the Premises" (NYSCEF Doc No. 35 at 4). In contract cases involving where each party submits a "battle "conflicting of the breaches," affidavits and documentary evidence which cast the other party in the role of the primary contract offender," summary (Boston Concessions 545 contract judgment Where, offender, first may preclude is typically Group v Criterion [1st Dept 1994]). primary judgment Ctr. Corp., questions (id.). 341 ["the court is not to determine a factual Therefore, claims, barred plaintiff's of contract, Plaintiff's summary opposing v Globe Mfg. Corp., 34 NY2d 338, credibility, but issue exists"]). and for dismissal in breach could be the Here, due to the aforem~ntioned (S.J. Capelin Assoc. whether 543, as to which party breached affidavits [1974] 200 AD2d as here, either party summary disposition must be denied inappropriate motion for summary of defendants' counterclaim, on its sounding must be denied. second cause of action by the breach judgment of contract existence of a valid contract generally precludes recovery for unjust enrichment is claim under the rule that "the governing the subject in quasi contract 651521/2019 20 ST MARKS, LLC VS. ST. MARKS NY LLC Motion No. 001 6 of 7 matter for events Page 6 of 7 [*FILED: 7] NEW YORK COUNTY CLERK 07/29/2020 09:04 AM INDEX NO. 651521/2019 NYSCEF DOC. NO. 39 arising RECEIVED NYSCEF: 07/28/2020 out of the same subject matter" BKN Intl. AG, 38 AD3d 221, 225-226 quotation marks and citations claim is not available a conventional contract Inc., 18 NY3d 777, 790 summary judgment enrichment pursuant [1st Dept 2007] omitted]). or tort claim" [2012]). or replaces, As such, plaintiff's sounding N.Y., motion for in unjust and upon a search of the record the court summarily See Abramovitz Inc., 202 AD2d 206, 208 enrichment (Corsello v Verizon on the cause of action to CPLR 3212(b), Inc. v [internal "An unjust where it simply duplicates, must be denied, cause of action. (Adelaide Prods., v Paragon dismisses Sporting such Goods Co., (1St Dept. 1994). 7/28/2020 _--JI_eL., ~ ~, DATE e ct DEBRA A. JAMES, J.S.C. CHECK ONE: CASE DISPOSED APPLICATION: SETTLE ORDER GRANTED CHECK IF APPROPRIATE: ~ 651521/2019 20 ST MARKS, LLC Motion No. 001 INCLUDES 0 NON.FINAL DENIED GRANTED ' SUBMIT TRANSFER/REASSIGN ~ VS. ST. MARKS NY LLC DISPOSITION IN PART ORDER FIDUCIARY APPOINTMENT 0 0 OTHER REFERENCE Page 7 of 7 7 of 7

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