284 Prospect Park W. LLC v 92 Fitness Crew NY5, LLC

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284 Prospect Park W. LLC v 92 Fitness Crew NY5, LLC 2022 NY Slip Op 32922(U) August 25, 2022 Supreme Court, Kings County Docket Number: Index No. 503966/21 Judge: Leon Ruchelsman 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. INDEX NO. 503966/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/30/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY QF KINGS : CIVIL TERM: COMMERCIAL PART 8 . ---·-·----· --------- ·--·· ---·------·· . ·-----·----. x 284 PROSPECT PARK WEST LLC, Decision and order Plaintiff , Index No. ~03966/21 - against 92 FITNESS CREW NYS, LLC, LARS 0. SCOFIELP, CHARLES JESSE MEDRANO, AND MELISSA BOTT MEDRANO, Defendant s, - --- -----------------RUCHELSMAN ---~- ----- August 25, 2022 --~ PRESENT: HON. LEON The Plaintiff has moved pursuant to CPLR §3212 seeking summary judgment on its first cause bf action for breach of the l.ease Cin the grounds the tenant breached the lease and for dismissal of the def encl.ant's counten::la irris. The defendant opposes the motion, arguing that there are questions of material fact as to whether the defendant repudiated the lease, that the plaintiff violated the lease l:)y misrepres entation, and that its countercla ims ought riot to be dismissed . After papers were subrrii tted by the partie•s and arguments were held, the court. now makes the following determina tion. The plaintiff , 284 Prospect Park West LLC, is the landlord of a retail space located. at 284 Prospect Park West in Kings County. On o.r about December 28, 2018, 92 Fitness Crew NYS LLC entered into a lease with the plaintiff . The tenant intended to operate a fitness center at the location, and, as a condition precedent to the lease; the def:endant s Lars Scofield and Charles and Melissa Medrano executed a guaranty guarantee ing the timely [* 1] of 7 ------ ------ ------ ~ ------1------ INDEX NO. 503966/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/30/2022 payment of all rents due (see, Guaranty of Lease Agreement ~B ( 1) ) . Pursuant to a rider to the lease, the lease commencem ent date was "the date that the Landlord shall deliver possessio n of the Leased Premises to the Tenant with Landlord' s Work substanti ally completed " (see, Rider to Lease, ~(b)). Thus the landlord was required to perform certain work on the premises before ,deliverin g possess,io n. The landlord was afforded months to sl..ibstant ially f iriish the work. premises were not delivered on time. nine Delays ensuedi and the Deferidarit and plaintiff were in contact regarding landlord' s failure to meet deadlines . On October 9, 2020, defendant s provided email notice to plaintiff saying, "we are notifying you of our intention to have the lease rescinded" (Exhibit I, NYSCEF Doc No 23). Plaintiff rejected the request, instituted this action, and asserted causes of action against the tenant and guarantor s, alleging they breached the lease and the guaranty and they owe the lancUord five years of rent. The landlord also seeks expenses pursuant to the lease. The tenant answered and asserted countercla ims that the plaintiff failed t6 complete the work within nine months, as outlined in the Tease and for a declarato ry judgment. The defendant also asserts the plaintiff breached the lease, breached a duty of good faith and fair dealing, and cornmitted fraud in misrepres enting the prqgress of the work. The plaintiff now moves seeking summary judgment, arguing 2 [* 2] 2 of 7 INDEX NO. 503966/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/30/2022 that the defendant repudiated the Lease in the October 9, 2020~ email. The plaintiff also seeks dismissal of the defenda'nt ' s countercla ims, arguing that the de£endaht 's breach precludes a claim: that the plaintiff breached. The de,fendant opposes the motion, arguing :that the plaintiff breached the lease first by refusing to perform and by misrepres entation, and that there are questions of fact surroundin g the email and other communications between the parties that foreclose a summary determina tion. Conclusio ns of Law Where the mci:terial facts at issue in a case are ih dispute sllmmary judgment cannot be granted (Zuckerman v. City of New York; 49 NYS2d 557, 427 NYS2d 595 [1980]). Generally , it is for the jury, the trier of fact to determine the legal cause of any injury, however, Where only one conclusion may be drawn from the facts then the question of legal cause may be decided by the trial court as a matter of law {Marino v. Jamison, 189 AD3d 1021, 136 NYS3d 324 [2d Dept,.; 2021). It is well settled that tp succeed upon a claim of breach of contract the plaintiff must establJsh the existence of a contract, the plaintiff 's performan ce, the defendant 's breach and resulting damages (Alliance National Insurance Company v. Absolut Facilities Managemen t, LLC, 140 AD3d 810, 31 NYS3d 896 [2d Dept'., 2016)]). 3 [* 3] 3 of 7 INDEX NO. 503966/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/30/2022 Paragraph 77 of the lease rider provides two distinct The events that comprise defaults on the part of the landlord. first is where the landlord fails "to do, observe, keep and perform any of the terms, covenants , condition s, agreement s or provi$ion s of this lease required tobe done" (Lease Rider, ':lI 77(a)). However, before any default can be found under this provision the tenant must provide writt~n notice of the default and afford the landlord thirty days to cure the problero. If the nature of the obligation requires more than thirty days to cqre then commencem ent of performan ce and due diligence will suffice. Second, any material misrepres entation by the landlord is an event of defa,ult. If the landlord defaults, either by failing to cute a notice duly served by the tenant or by any material misrepres entation then the tenant may terminate the lease without ~roviding further notice; There are significa nt ques:t:ions of fact whether the email sent on October 9, 2020 was an intention to rescind the lease or a notice to the landlord to cure its default. The email states that "I'm just following up on our conversat ion from Wednesday . As we discussed , it was [sic] been 23 months sioce we signed the lease for South Slope. Per our dist::ussio ns and per the lease, this was supposed to be delivered to Us 9 months after we signed the.lease. To date, work specific to our space has still not commenced . My best estimate is that you still have another 6 4 [* 4] 4 of 7 INDEX NO. 503966/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/30/2022 months to .get to complet ion Lf you include the obtainin g of all the finals tl1at a:t:e requirec; i. This has caused rtrahy damages for us ;;i;nd thi.s is no longer an acceptab le option fo:r us. Therefo re, we are notifyin g you of our intentio n to have iec3se rescinde d" (see, E"""'mail from Charl.~s Medrano. sent 5:09 PM on [NYS'CEF. DOC. #23 l ). . October 9, 2020 Thus, while the .email does riot explic•i tly offer .the landlord an opportu nity to cure, it is far from an equivoc al termina tion of the le,ase, T.he .languag e containe d iri the .em~il reciting the h.i1;,tory Of delay, perhaps, was intended to serve as a.p impetus for the landlo.rd to :complet e the work. Mor.eove r, the, ·email did not say the leas.e is being termina ted but ·rather· then tenan.t in.t~.nds to res.cind the lease.. Thus,. the .Precise nature. of the email cannot be summari ly ·decided. anq conseq1a rently, furthe~ di~cove ry is l1e.c.ess:a ry to. determ.:L ne. whether the email was .a r.escis~: ion .or a notice·. It should ·als.o be noted that. paragrap h 27 of the Lease· requires service: ,of· all notices in per·.~Ion,. by mail, .or by courier (see, L~a.se, ·.'.![ 2.7 [NYSC;EF DOC. #7f). Th any event,. th.er.e, are !?.i.gn.ifi cant question s of ·fact. whether th,e plainti ff mater'ii: llly misrepre ·sented the: pa.ce of constr·u ction e1nd whether construc tion even sign.ific antly commeti.c ed by·· the time the· ema.il w.as ,sent. Tf tru::e, then th.e 1·~mdlord breached the lease before the tenartt.. Thus.,. on June 19, 2018 the plainti ff emailed the defenda nt informin g them that "w·e 5 [* 5] 5 of 7 INDEX NO. 503966/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/30/2022 expect to get starte·d w:ith the demo in: the next few we~ks" (see, E,-mail from Kevin Gershens on sent 3: 21 PM on Ju.ne 1·9, 201·9 [N~steF D9c. #891), On A~gust 5, 2018 ~nether em~il was s~nt irn::l.i.cat ing that \\we expectin g to start th.e demo this c6tnipg we.ek" ( ~ , E-ma.il from Kevin Gershens on sent 10: 52 AM on Aug.ust 5, 2018 [NYSCEF Doc. #90]). However , permits were- not issued by the Departm ent of. Building s_ µntil October 2019 as structur al concerns arising that summer. a: result of In.q.eed, accordin g to Mr· .. Ge_rshen son, ''al thou_gh DOB app;r.oved, the Landlord .' s initial plans -in or about- June 2019, permits did not is.c:;ue until October 2019 due to structu ral conc.e:rns . that l:;)eqame evident in. the summer of 201"9" .(Aff·irm atipn -of K.evi·n. Ge.rshen son, i 1-3, dated February 202"2 {.NYSCEF Doc .. #"6-2]}. There is. rto evidence the plp.inti;E f eve.r disclose d the. delay they we.re a-war~ e_;x:i~_ted during the su:rtimer of 2019·. Therefo re, there ·are question s of ma:te.ri·a l .f-act whethe·-r the; pl-ainti ff knowin-9. ly ·m:isrep·r :esent~ct th~ p:rogress . of the wor_k, thereby br.eachin 9 1 77 (b) o_f t_he lei3.S:e ri<:ier ~ Moreove-r ·, the plaint.i: ff' -s, alleg.ed misrepres eri":t-atio tr- _purport edly violates Pa:ra-gr·aph '.!I 77 (b) ,. thus the J.ac.k of: a notice. to cure w.ould not prec1ucte f"inding plainti ff in ·.b.reat:h. The landlord . argues· that ~'it -is undispu ted that the Plaintif° f commencet:i- its performa nce of the- Lea-se by c.ommenc ing "Land1o rd' s Work,t prior to- Octobe-r 9, 2·020" (s·ee, Memorand um i;n Reply, page 2) . However , there is really .no evidence to· support 6 [* 6] 6 of 7 INDEX NO. 503966/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 08/30/2022 tha t contention. support. The landlord points to it's own statements in However, the affirmation of Mr. Gershenson essentially admits that no work had been per formed at all. The landlord argues t h e tenant had no authority to breac h without affo rding the landlo rd an oppo rtuni ty to cure (Lease Ride r 1 77(a)). is cer t ainly true concerning defaults. That However, the tenant has presented evidence of other de f a ul ts, namely the landlord's material misrepresentation of t he commencement and pace of co nstruction. Tha t breach, if true , requ ired no prior not ic e to the landlord (L ease Ride r 1 77 (b)) . Therefo r e , there are questions of fact whet h er the l a nd lord breached the lease prior to the tenant's email . Thus, all motions seeking summary judgement are denied. So ordered . ENTER: DATED: Augus t 25, 2022 Brooklyn N.Y. ~ 7 [* 7] - - - Hon. Leon Ruchelsman J SC 7 of 7

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