BKNY 1, Inc. v 132 Capulet Holdings, LLC

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BKNY 1, Inc. v 132 Capulet Holdings, LLC 2020 NY Slip Op 33143(U) September 25, 2020 Supreme Court, Kings County Docket Number: 508647/16 Judge: Lawrence S. Knipel 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 09/25/2020 02:57 PM NYSCEF DOC. NO. 570 INDEX NO. 508647/2016 RECEIVED NYSCEF: 09/25/2020 At an IAS 'fcm1, Part Comm 4 of the Supreme Court of the State of New York, held in and for the County of l(ings, at the Coltrthouse, at Civic Center, l3rooklyn, New York, on the 25 1h day of Septe1nber, 2020. PRESENT: HON. LA Wr:i.ENCE KNIPEL, Justice. - - -- - - - - - - -- - - - - - - - -- - - - - -- - - - - - - - - --X llKNY I. INC d/b/a 132 LOUNGE, Plaintiff, Action No. 1 Index No. 508647116 - against 132 CAPULET J-{C)LI)JNGS-, 1..1.C, Defendant. -- - - - - - - - -- - - - -- - - - - - - - - - - -- - -- - -- - --X BKT\lY 1, INC, Plaintifl', Action No. 2 Index No. 505532/16 - against lJNIC)N & C:ou1rr REALTY CORP., Defendant. ----.. ----------- --------- ----- --- -..x M1\8.C' R YBSTEJN, As Ad1ninistrator & sole ren1aining I-leir of the F:s·r,\TE ()F SYLVIA 13LJNC'!-l/K, Plaintiff~ Action No. 3 Index No. 515094/1 9 - against 132 CAPULET HOLDINGS, LLC, BKNY I, INC d/b/a 1321.0UNGE and lJNJON & CC>tjR'r IZEAL·rv CORP., Defendants. - - .. - .. - - - - - - - - .. - - - - -- - - - - -- - - - - - - - -X 1 of 16 [*FILED: 2] KINGS COUNTY CLERK 09/25/2020 02:57 PM NYSCEF DOC. NO. 570 INDEX NO. 508647/2016 RECEIVED NYSCEF: 09/25/2020 NYSCEF Doc. Nos. The follovving e-filed papers read herein: Action No. I Action No. 2 Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affinnatlons) Annexed _ _ _ _ _ __ 522-526 49-68 Opposing Affidavits (Affirn1ations) Annexed. _ _ __ 532-543 69-70 Upon the foregoing papers, plaintiff BKNY l, Inc. d/b/a 132 Lounge (BKNY) 1noves, in Actio11 No. 1 (in motion sequence [1not. seq.J I5), for an order, pursua11t to CPLR 602 (a). consolidating Action Nos. l, 2 and 3 (captioned above) for all purposes, ir1cluding discovery and trial. Defendant Unio11 & Court Realty Corp. (Unio11) 1noves_. in Action No. 2 (in 1not. seq. two), for ai1 order: ( l) granting it su111mary judgment dismissing tl1e a1nended C<)111plaint, pursuant to CPLR 3212, and (2) i1n1,osing sanctions arld attorne)''s fees upon BKNY, pursuant to Rules of the Chief Administrator of the Com1s (22 NYCRR) § 130I. I (Part 130), and scheduling a hearing to deter111ine tl1e a1nount of sanctio11s and attor11ey's fees to be awarded. Baclcgro11nd Action Nos. l and 2 arise fro1n Bl(NY's tenancy' at tl1c 1nixed-use, co1n1nercial properly at 132 Montague Street in Brooklyn (Property), where BKNY occupies the ground floor, base1nent and backyard of tl1e I)roperty (Leased Space), pursuant to a July 25, 2012 I 0-year lease with a term of November I, 2012 through October 31, 2022 (Lease). The Lease consists of a boilerplate for1n lease, a Rent Schedule and a Rider. 2 2 of 16 [*FILED: 3] KINGS COUNTY CLERK 09/25/2020 02:57 PM NYSCEF DOC. NO. 570 INDEX NO. 508647/2016 RECEIVED NYSCEF: 09/25/2020 Since 2012, BKNY operates a restaurant at the L.eased Space k.nown as "132 Lounge." BKNY originally rented tl1e Leased Space fro1n U11ion, l11e JJrior ovv11er o·f the Property. Union transferred the Property to 132 Capulet Holdings, LLC ( 132 Capulet), pursuant to an April 7, 2016 deed. 132 Capulet, following its purchase of the Property, served BKNY with a "Thirty (JO) Day Notice lo Cure Default," dated April 7, 2016, selling forth various violations of t11e f_,ease provisio11s (First Notice to Ct1re). Those violations inc]u(ied BKNY's construction of ai1 extensio11 in the rear of tl1e Propert)' without approval fro1n the Department of Buildings (DOB) and in violation of Administrative Code of the City of New Yori( § 28-302.1 since tl1e extensio11 block.e.d tl1e tire escape. Actio11 No. I On May 24, 2016, BKNY commenced Action No. l against 132 Capulet seeking a declaratory judg1nent that it is not in default under the Lease. -rhe co1nplainl alleges tl1at "[a]Ithough BKNY l1as bee11 a 1nodel tenant and invested substantial sun1s of rnoney i111proving the Prernises, the new Landlord is detennined tlJ ter1ninate the L,ease and select its O\Vn tenant" and "tl1e Landlord is alleging that BKNY breached various provisions of tl1e l.ease" (Action No. 1 CtJn1plaint at respectively: if 10). BKNY asserts two causes of actio11 for, (1) a Yellowstone injunctio11 to 111aintain the status quo pe11ding the detern1i11ation oftl1is actio11 on the 1nerits, and (2) breacl1 ofBKNY's right to the use and quiet enjoy1nent of the J_,eased Space. 3 3 of 16 [*FILED: 4] KINGS COUNTY CLERK 09/25/2020 02:57 PM NYSCEF DOC. NO. 570 INDEX NO. 508647/2016 RECEIVED NYSCEF: 09/25/2020 B)' an Attgust 5, 2016 order, the court granted BKNY's application for a Yello\vstone injunction. On Septernber 20, 2016, 132 Capttlet ans\vered the co1nplai11t. denied the 1naterlal allegations therein and asserted ten affirmative defenses, including that: (1) BKNY breached the Lease by perfor111ing alteration and renovation worl( at the Prope1ty, "inclttding the erection of an ex1e11sion/landing ... in tl1c rear of the Subject Pre1nises without ... prior written consent"; (2) BKNY breached the Lease by failing to submit plans to 132 Capulet before erecting the extension; (3) BKNY breached the Lease by failing to obtain per1nits f-i-0111 the DOB l:icfore erecth1g tl1e extension; (4) BKNY breached the Lease by failing to obtain insurance; (5) BKNY has failed to cure its breacl1es under the Lease: and (6) as a result of BK'NY's i1nproper construction of the cxtensio11, several violatio11s have bee11 issued against the Property. 132 Capulet also asserted 13 counterclaims against BKNY for. respectively: (!) an award of attor11ey·s fees, pursua11t to articles 18 and 19 of tl1e Lease; (2) an inju11ction e11joining BKNY fr()lll utilizing the extension u11til s11cl1 ti1ne as all Buildi11g Code violations l1ave been dis1nissed and all necessary permits and approvals are obtained tl·o1n the DOB; (3) an order requiring BI(NY to re1nove the extension and all electrical \Viri11g and plu1nbing; (4) a warrant of' eject1nent becatise I3I<NY continues to t1tilize the backyard despite 132 Capulet's revocation of BKNY's license to occupy the backyard; (5) a11 injunctio11 e11joining and restraining BI<NY fro111 perfor1ning a11).: alteratio11s a11d 4 4 of 16 [*FILED: 5] KINGS COUNTY CLERK 09/25/2020 02:57 PM NYSCEF DOC. NO. 570 INDEX NO. 508647/2016 RECEIVED NYSCEF: 09/25/2020 renovations to tl1e Property; (6) an order directi11g BKNY to cure any violations and to pay any penalties and/or fines assessed against the Property; (7) property damage based on BKNY's erection of the extension; (8) n1onetary damages related to the cost of curing the violations issued against the I)roperty; (9) an injunction authorizing 132 Capulet to install a water meter; (IO) monetary damages to reimburse 132 Capulet for BKNY's water lisage; (11) an injunction reql1iring BKNY t<.) cease and desist fro1n lltilizing the Leased Space as anytl1it1g but a 'l'apas restaurant vvitl1 light cool(i11g on!)', as set forth in the Lease; ( 12) an injunctio11 requiring BI<NY to stop havi11g live entertain111ent at the Leased Space, in accordance with the Lease; and (13) a11 injunction reql1irir1g BKNY to stop having live ei1tertain1nent in the absence of a place of asse1nbly certificate of operation. On November 9, 2016, BKNY replied to 132 Capulet's counterclaims and asserted six affir1native defenses, incllrding tl1at BI<NY has a leasehold right to use the backyard and BI<NY received co11sent to 1nak_e renovations to tl1e Leased Space. While the Yellowstone injunction re1nained in effect, 132 Capulet served BI(NY with an "Amended Thirty (30) Day Notice to Cure Default," dated May 19, 2017 (Second Notice to Cure). The Second Notice to Cure added to the list of the alleged violations set forth in the First Notice to Cure. The Second Notice to Cure alleged that BKNY had (I) "placr edJ ,chairs and tables in the Jlath of the tire escape td the public vvay in violation of Administrative Code§§ 1002 and 1027.6,'' and (2) failed to use "a proper 'type one' hood 5 5 of 16 [*FILED: 6] KINGS COUNTY CLERK 09/25/2020 02:57 PM NYSCEF DOC. NO. 570 INDEX NO. 508647/2016 RECEIVED NYSCEF: 09/25/2020 and/or other ve11tilatio11 that [was] capable- (lf handling the grease and other air born particulates associated with the cooking of foods listed [in BKNY's) current menu." Consequently, by a May 19, 2017 order, the court granted BKNY a second Yellowstone injunction. On May 17, 2019, 132 Capulet moved for partial summary judgment on its affirn1ative defenses and counterclaims and/or for an order vacating tl1e Yellov\ stone 1 injunction and/or scl1eduling a hearing on its counterclai1n for attorney's fees. By a March 2, 2020 order, this court granted 132 Capulet's 1notion to tl1e extent of ordering that: (I) BKNY shall arrange for one or more inspections or the Leased Space (i.e., the basement, ground floor and backyard) by the Fire Marshall, the DOB and the Department of llealtl1, and (2) if one or n1ore violations are issued vvhich correlate to BI<NY's claimed defaults under 132 Capulet's First and/or Second Notices to Cure, then BKNY '·sI1all be reqtlired to forthwith diligently cure sucl1 lease violations, subject to defe11da11t·s cooperation and co11sent if necessary." This order is the subject of a pending tnotion for reargtunent in Actio11 No. 2 (mot. seq. 16). Actio11 1Vo. 2 On April JO, 2016, BKNY commenced Action No. 2 against Union, its pnor landlord, alleging that the Lease provides that BKNY would have "exclusive use" of the Leased Space, including the backyard, that BKNY "would make all cosmetic repairs, alterations, additio11s, i111pro\re111ents and decoratio11s ' ... necessary or desirable to tnal(c 6 6 of 16 [*FILED: 7] KINGS COUNTY CLERK 09/25/2020 02:57 PM NYSCEF DOC. NO. 570 INDEX NO. 508647/2016 RECEIVED NYSCEF: 09/25/2020 the de1niscd prc111ises suitable for Tenant's 11se- and occupancy ... '" and that Union was res_ponsible Lo repair and 1naintain the Property's roof and to rnal<e structural repairs (Action No. 2 complaint at 11~ IO, 18, 19 and 26). The complaint alleges that Union "failed and refused to abide by its obligations in the Lease to 1nal<e roof and structural repairs,'' "ref11sed to clean up the back. yard or n1ake repairs and/or i1nprove1nenls in tl1e back yard" and "refused to compensate [BKNY] for the significant sums [it] spent in cleanup, repairs and renovations of the back yard" (id. at~~ 22, 31 and 32). -On Nove1nber 8, 2016, BICNY a1nended its co1nplaint. 'J'he a1nended co1nplai11t asserts fottr causes of action against Union for: (I) breach of tl1e Lease because the backyard of the Jlroperty is allegedly en-cu1nbered by an ease1nent which restricts BKNY's use of the backyard; (2) breach of the Lease based on Union's failure to make roof and struct11ral repairs and co1npensate Bl(NY for tl1e structural repairs it rnade to the Leased Space; (3) fraud based on Union's allegedly false representation that BKNY would have exclusive use of the backyard for its restaurant bttsines·s and Unio11's alleged concealment of the fact that BKNY may not have the legal right to lease the backyard space due to an ease1nent; and (4) constr11ctive eviction by denying BKNY exclusiv_e use of the backyard. On March 29, 2019, Unio11 ans\.vered the a1ne11ded co1nplaint, denied the rnaterial allegations t11crei11 and asserted affir1native defenses, including that the recorded ease111ent is a 1natter of pt1blic record, it had no duty to disclose the existence of the 7 7 of 16 [*FILED: 8] KINGS COUNTY CLERK 09/25/2020 02:57 PM NYSCEF DOC. NO. 570 INDEX NO. 508647/2016 RECEIVED NYSCEF: 09/25/2020 ease1nent, it gra11ted BKNY a re\1ocable license to ltse the backyard in the Lease Rider and tl1a_t BKNY defaulted under the L,ease by failing to obtain per1nits and approvals f'ro1u tl1e DOB before perfor1ni11g renovations to the I. . eased Space, resulting i11 violations. U11ion also asserted a cou11terclai1n agai11st BI<NY for costs and attorney's fees, pursuant to articles 18 and 19 of the Lease. Notably, l-3KNY failed to repl)1 to U11ion's counterclai1n. Actio11 No. 3 On July 11, 2019, Marc Rybstein (Rybstein), as Administrator and sole remaining heir of the Estate of Sylvia Blinchik (Estate), commenced Action No. 3 against 132 Capulet, BKNY a11d Union allegi11g that the Estate ''owned an easen1ent dated June l2, 1986 and filed with the Clerk of the County of Kings on February 13, 198[7] ... over the back yard of the Premises" (Action No. 3 complaint at ~ 2). The complaint farther alleges that: ''The ease1ncnt grants plaintiff tl1e 'perpetual use and occ111)a11cy' of the back.yard area for the purpose of establishing and 1naintaining a me1norial garden t() plaintiff's f8tl1cr Marl( Allen Blinchil< and restricts the Defendants' use of the bacl< yard to such p11rposes * * '·Defendants, in violatio11 of the easement have rented the backyard area for a co1n1nercial purpose and have re1noved the ine1norial garden and per111itted the property to fall into disrepair" (id. at 11~ 3 and 7). R)-'bstei11 asserted four causes of action agai11sl 132 CapLilet, BKNY and lJnil)ll, for: (1) a 8 8 of 16 [*FILED: 9] KINGS COUNTY CLERK 09/25/2020 02:57 PM NYSCEF DOC. NO. 570 INDEX NO. 508647/2016 RECEIVED NYSCEF: 09/25/2020 declaratory judg1nent "setting fortl1 his rights to enter the premises and take sucl1 steps as are necessary to restore and 111aintain tl1e 1nen1orial garden . , :· and a per1nanent injunction "barring defe11dants fro1n interfering \Vitl1 plaintitT"'s exercise of his rigl1ts ·under the ease1ne11t ... ''; (2) 111oneta1y da111ages necessary t{rrestore the n1e1norial garden in the backyard; (3) an accounting of the rents collected for BKNY's co1nmercial use of the backyard; and (4) inflictio11 of extren1e e1notio11al distress. On August 20, 2019, BKNY ans\vered tl1e co1nplaii1t, denied the 1naferial allegations therein and asserted affir1native defe11ses, inclt1ding that BKNY, a tenant, "\vas not give11 k110\Vledge or tnade aware of ai1 ease1nent and is in possession of the property' for co1n111ercial purposes due to the license granted by prior O\vner, defe11dant Union ... and the rental agree111ent." BI<.NY also asserted a counterclaiin for attorney's fees because the action is "fi:ivolo11s and wholly without 1nerit." 011 September 23_, 2019, lJnion answered the con1plaint. Thereafter, 011 November 15, 2019, the Estate di::>c<>ntinued Action No. 3, with prejudice, as against Union. BKNY's Nlotio11 to Co11so/idate BKNY now moves, in Action No. 1, for an order, pursuant to CPLR 602 {a), consolidating Action Nos. l, 2 and 3 on the grounds that ·'the allegations of the con1plaints in tl1c three pending actions are essentially identical"; "f_t]l1e law to be applied is the sa1nc" and "[t]he three subject tnatters are pre111ised on tl1e sa1ne or closely related legal tl1eories" concerning t11e backyard ease111ent at the }lroperty. BKNY asserts tl1at "all 9 9 of 16 [*FILED: 10] KINGS COUNTY CLERK 09/25/2020 02:57 PM NYSCEF DOC. NO. 570 INDEX NO. 508647/2016 RECEIVED NYSCEF: 09/25/2020 of the factors V.'eigh in favor of consolidation" and "[aJ failttre to consolidate ... risk[sJ inconsistent adjudicatio11s on con1mo11 legal issues a11d \Vould burden tl1e parties a11d witnesses with tu1necessar)' and largely duplicative discover)'." BI<.NY notes that consolidatio11 "'viii facilitate witness convenience, 1ni11imize tl1e cost of litigation, and elin1inate any potential confusion and possible inconsistencies ... " U11ion, i11 Oj)position, argues t11at consolidation is not \Vari:anted because the three actio11s "involve different parties a11d share no 1naterial con1rnon issues of la\v or ract." lJnion co11tends tl1at ;'[t.Jhe causes of action, affirmative defenses and counterclaiins in tl1e three cases are largely unrelated ru1d require dill'erent proof' and that Unio11 is no longer a party to Action No. 3. Union argues that "[t]he discontinuance of [Action No. 3] as to U11i·on elirninated an)' alleged co1n1non iss11e of law and fact." Union notes that "[c]vcn though two of the t11ree cases involve the same Lease, wl1ose existence is 11(lt disputed, tl1ey inv.olve the applicati<ln of different provisions of tl1e Lease and toucl1 upon 110 co1n111011 questio11s of fact," Union furtl1er argues that ''[d]iscovery is con1pleted in [Action No. l] and is almost concluded in [Action No. 2], so duplicative discovery would 11ot be avoided." ln C<lntrast, Union notes that Action No. 3 is "in tl1e beginning stages, one {)f tl1e remainit1g Defenda11ts 11as not yet ans\vered the co1nplaint, and no discovery has taken place." Union contends that "[i]t would greatly prejudice [it] to have its simple case tried together with the co1nplicated and n1uch lengtl1ier [Action Nos. I a11d 3]." 10 10 of 16 [*FILED: 11] KINGS COUNTY CLERK 09/25/2020 02:57 PM NYSCEF DOC. NO. 570 INDEX NO. 508647/2016 RECEIVED NYSCEF: 09/25/2020 U11io11's Motio11 for Sun1111ary J111lgme11t and lite I111positio11 of St111ctio11s i11 Actio11 No. 2 Union inoves in Action No. 2 for su1nmary judg1nent dis1nissing BI(NY's an1ended con1plaint based on the· terms of the Lease, the adn1issio11s of BKNY''s presidGnt, Nasser Gl1orchia11 (Ghorcl1ian) and the 1uoving affidavit c>f Union's president, I<.i f-Iyo Parl( (I)ark). Union also seel(s the i1npositio11 of' Part 130 sanctions against Bl(NY "for lcnowingly filing a frivolous and perjurious co1nplaint ... " a11d a11 order scl1eduling a hearing to deter1nine the a1nount of sanctions and attorney's f'ees to be awarded to Union. Union argtrcs that the first cause of action, \Vhich alleges that Union breached the I,ease by not giving BI<NY exclusive possession of the baclcyard, and the third cause of actio11 for fi·aud based on Union's alleged concealment of the ease111e11t in tl1e back.yard should both be disn1issed because the allegations supporting those cat1ses of action are demonstrably and admittedly false. Park attests that he negotiated the Lease with BKNY's representative, Bob Cruz, at \vhich tin1e he advised Cruz that the backyard l1as a11 easc1nent. According to Park, "[bjeca11se Cruz insisted t11at he \vanted to be able to use t11e bacl( yard as 111uch as the easement would allow, my attorney added the clause entitled "BACK YARD AREA" to tl1e botto1n of page 9 of the [LeaseJ Rider" \Vhich provides that "l,andlord gra11ts a l,icense to 1~enant for the use oftl1e back yard in conj1u1ctio11 \Vitl1 its resta1tra11t business.'' II 11 of 16 [*FILED: 12] KINGS COUNTY CLERK 09/25/2020 02:57 PM NYSCEF DOC. NO. 570 INDEX NO. 508647/2016 RECEIVED NYSCEF: 09/25/2020 Park further testified that "[w]hen l sold the Real Property in April, 2016, [BKNYJ was still in business and \Vas trsing the back yard as part of its restaurant." lJnion notes that Ghorcl1ian, at his deposition, specifically ad1nitted t11at BKNY 11ad exclusive tlse of,thc bacl(yard with Park:'s k:nowledge and co11sent, and without U11ion's interference, d11ring the entire time that Union ow11e_d the Property. U11ion conte11ds that the second ca11se of action for brcacl1 of the I~ease based on Union's a-!leged failure to 1nal(e roof and structural repairs and co1npensate BKNY for the structural repairs it 1nade to the Leased Space sho1dd be disn1issed. Union asse1is tl1at the Rider to tl1e I,.,ease explicitl;1 provides that it \Vas BI<NY's responsibility to 111ake all repairs, alterations and in11)roven1e11ts or otl1er work to the Leased Space for its use as a restaura11t "at its sole cost and expense." Unio11 notes that the Lease contains no provisio11 req1Jiring it to do "str11ctural" \Vorl( 011 the Leased Space, and tl1at the Lease explicitly provides that BKNY accepts the Leased Space in "as is" condition. In addition, Union asserts that Gl1orchian ad1nitted at 11is depositio11 that l1e never de1nanded tl1at lJnion clea11 up the baclcyard or reilnburse BI<NY for any structural repairs. U11ion co11tends tl1at the fourth cause of action, which alleges that lJ11ion constructively evicted BKNY by denying it exclusive use of the bacl(yard, should alS<) be dis1nissed. Union argues that BICNY has failed to allege any facts shO\\ting that it interfered \vith BI<MY's enjoy111ent and tu1disturbed possession of the Leased Space, or deprived BKNY from using, or forced BKNY to abandon, any pmt of the Leased Space. 12 12 of 16 [*FILED: 13] KINGS COUNTY CLERK 09/25/2020 02:57 PM NYSCEF DOC. NO. 570 INDEX NO. 508647/2016 RECEIVED NYSCEF: 09/25/2020 When Gl1orchian was asl<ed at his deposition ho\v Union prevented BKNY ti·o1n using the backyard, !1e testified tl1at Union sent BKNY a DOB violation reqt1iring BKNY to re1nove tl1e extension in the backyard. Ghorchian conceded, however, that the DOB 11ever advised hi1n that 011ce tl1e extension was re1noved 11e cannot t1se the back.yard. Union asse1is that BI<NY has "co11ceded that no constructive eviction to(1l< place."' BKNY, in oppositio11, sub111its a vague affidavit fro1n Ghorchia11, who contends tl1at Union's sun1111ary judgn1ent 111otion should be denied because tl1cre are issues of fact. CJI1orcl1ian co11tends tl1at Parl<'s alleged C<H1versation \Vith Cruz regarding the eascn1ent is inad1nissible hearsay and, "[uJon infor1nation and belief, Mr. Cruz was never an autl1orized representative of BKNY ... 1-Ie was i1ot an employee-, sl1areholder, or officer. I-Ie is not a real estate brol<er or attor11ey." BKNY also argues tl1at sanctions are i1ot \Varranted because ;'[w]l1ile [Ghorchia11J may have 1nisunderstood qt1estions asked ()fhin1 al a deposition there is no indication that any n1is-state111ents \Vere \villful or intentional.'' Disc11ssion (I) BKJl{Y's Motio11 (o Co11so/i(fltte "A 1notio11 JOr consolidation is addressed to the sound discretion of the court, and absent a sho,ving of s11bstantial prejudice l?y the party opposing tJ1c 1notion, consolidation is proper where there are co1nmo11 questio11s of law and filct''' (RCN Co11str, Corp. v Fleet Bank, N.A., 34 AD3d 776, 777 [2006]). "A motion to consolidate should be granted 13 13 of 16 [*FILED: 14] KINGS COUNTY CLERK 09/25/2020 02:57 PM NYSCEF DOC. NO. 570 INDEX NO. 508647/2016 RECEIVED NYSCEF: 09/25/2020 absent a sho·vving of prejudice t<l a substantial rigl1t b;1 a party opposing the 1notion" (Hanover Ins. Group v Mezansky, 105 AD3d 1000, 1001 [2013]). tlere, consolidatio11 is not warranted because BKNY has 11ot demonstrated that Action Nos. l, 2 and 3 i11volve co111111on questions of law and fact. Further1nore, disco.very has been co1npleted ir1 Action No. 1 a11d is nearly complete in Action No. 2 since botl1 of those actions were co1n111_enced in 2016. 111 contrast_, Action No. 3, vvhich was recently con1111cnced in 2019, is it1 its infancy and the parties have not yet begun discovery. Union, vvhicl1 is no longer a party to Actio11 No. 3, would be j)rejudiced if it were required to vvait for a joint trial after the conclusion of discovery in Action No. 3. Conseque11tly, in tl1is court's discretion, BKNY's 1notion to consolidate Action Nos. 1, 2 a11d 3 vvarrants denial. (2) Uni<Jn's Sttff1mary J11dgn1ent Motio11 Stunmary judg1nent is a drastic re111edy tl1at deprives a litigant ofl1is or her day in court, and thus, sl1ot1ld only be e1nploycd when thcte is 110 doubt as to the absence of triable issues of material fact (Kolivas v Kirchoff, 14 AD3d 493 [2005]; see also Andre v Pomeroy, 35 NY2d 361, 364 [1974]). "The proponent of a 1notion for stuninary' judg111e11t 1nust tnal(e a prilna facie showing of entitle111e11t to judg1ne11t, as a 111a1ter of law, tendering ·su11icient evidence to de1nonstrate the absence of any material issues of fact" (Manicone v City of New York, 75 AD3d 535, 537 [2010 )). 14 14 of 16 [*FILED: 15] KINGS COUNTY CLERK 09/25/2020 02:57 PM NYSCEF DOC. NO. 570 INDEX NO. 508647/2016 RECEIVED NYSCEF: 09/25/2020 f.Icrc, U11ion establisl1ed its entitle1nent to su111111ary jt1dg111ent disn1issii1g tl1e a1nended co1nplaint based ()11 the ter111s of the Lease, l)arlc's affidavit testi1110n)' and G11orchian 's deposition tcsti111ony, all of vvhich prove that BI<NY l1ad uninterrupted use and t)ccupancy of the baclcyard throughout the tiI11e that Union ()\Vned the PrOJJerty: Indeed, Ghorchian ad111itted at his deposition that BKNY had exclusive and uninterrupted use of the backyard. Thus, there is no basis for the first (breach of the Lease), third (fraud) and fourtl1 (constructive eviction) causes of action, all of whicl1 are based on false allegations that Unio11 prevented BKNY from ltsing the back:yard. Furtl1er1nore, wider the plain terms of the I~ease, BI<NY toolc the Leased Space in ''as is" condition, BK'NY 1vas solely' responsible for any renovations, structural repairs or other wor}( to the I~eased Space and BI<NY does not dispute these facts i11 its opposition papers. Consequently, tl1e second cause of action for breach of tl1e I~ease based on lJnion's alleged failure to rehnbt1rsc BKNY for structural \Vorl( is also subject to dis1nissal. Ghorcl1ian's vag11e a11d conclusory affidavit suggesting "upon inforn1ation and belief," but not attesting affirtnatively, that Cruz \Vas not an authorized representative of BJ(NY, fails to raise an issue of fact for trial regarding the bacl(yard casen1e11t, which \Vas a 1natter of pttblic record. Ghorchian's affidavit "raised 011ly feigned issues of fact designed to av(lid the consequences of his ririor testimony, and [is] inst1fticient to defeat the motion for summary judgment" (Colucci v AFC Cons!., 54 AD3d 798, 799 [20081). Union has railed to establish any grounds to in1pose I)art 130 sa11ctio11s l1ercin. 15 15 of 16 [*FILED: 16] KINGS COUNTY CLERK 09/25/2020 02:57 PM NYSCEF DOC. NO. 570 INDEX NO. 508647/2016 RECEIVED NYSCEF: 09/25/2020 Accordingly, it is hereby ORDERED that BKNY's motion in Action No. I (in mot. seq. 15) to consolidate Action Nos. 1, 2 and 3 for all purposes, including discovery and trial, is denied; and it is . ORDERED tl1at Union's motion in Actio11 No. 2 (in 111ot. seq. t\\10) is resolved by granting Union s111n111ar.Y jt1dg111ent disn1issing tl1e a1nended complaint against it, and that branch of the 1notion seel<ing Part 130 sanctions is denied. Tl1is constit11tes the decision and order of the court. ENTER, J. Justice Lawrence Knipe! 16 16 of 16

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