Aqua Duck Flea Mkt. LLC v 612 Wortman Ave., LLC

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Aqua Duck Flea Mkt. LLC v 612 Wortman Ave., LLC 2022 NY Slip Op 33209(U) September 19, 2022 Supreme Court, Kings County Docket Number: Index No. 522161/2019 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. 522161/2019 FILED: KINGS COUNTY CLERK 09/22/2022 12:43 PM NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 09/22/2022 s·uPREME COuR:T OF THE STATE OF NEW YORK COUNTY OF KINGS: CIVIL TERM: COMMERCIAL 8 --- ----------- --------------------~--- -k AQUA DUCK FLEA MARKET LLC, Plaintiff, - against - Decision and order Inde~ No. 522161/2019 612 WORTMAN AVENUE, LLC, Defendant, ·- --- - - ---- - --- -- - - -- - - - - -- --- - - ---- - -- --- - - -- - -xi September 19, 2022 PRESENT: HON. LEON RUCHELSMAN The plaintiff has moved seeking a Yellowstone injunction. The defendant has cross-'-moved seeking the right to terminate the lease. The motions have been opposed respectively. submLtted by the parties and arguments held. Papers were_ After reviewing all the arguments, this court now makes the following determination. On June 12, 2013 the parties entered into art amended lease and numerous amended leases thereafter for space located near Moritauk Avenue, Cozine Avenuei Fountain Avenue and Wortman Avenue in Kings County. The space is used as a pedestrian flea market. A notice to cure was served on May 10, 20.19 alleging defaults relating to Cracks, worn patches and ari uneven drainage system. The plaintiff has moved seeking a Yellowstone injunction arguing either the noted de-faults are baseless or that in any event they c.ari. r·eadily be. cured. The defendant has cross.-moved seeking to terminate the le.ase on the gro1J.nds the plaintiff does not se.ek to cure the .def'et:ts. [* 1] 1 of 4 INDEX NO. 522161/2019 FILED: KINGS COUNTY CLERK 09/22/2022 12:43 PM NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 09/22/2022 Conclusions of Law A Yellowstone injunction is a remedy whereby a tenant may obtain a stay tolling the cure period "so that upon an adverse determination on the merits the tenant may cure :the default and . . avoid a forfeiture" (.Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assocs.I 93 NY2d 508, 613 NYS2d 91 [1999], First National Stores v. Yellowstone Shopping Center Inc., 21 For a Yellowstone injunction to NY2d 630, 290 NYS2d 721 [1968]). be granted the Plaintiff, among other things, must demonstrate that ''it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises'' . . (Graubard, supra) . Thus, a tenant seeking a Yellowstone must demonstrate tnat: ( 1) it holds a cormii.ercial lease, .( 2) it has received from the landlord a notice of default, (3) its application for a temporary restraining order was made prior to e:x:piration of the cure· period and termination of the leaseI and (4) it has the desire and ability to cure the alleged default by any means short of vacating the premises (™, Xioti:s Restaurant Corp., v. LSS Leasing Ltd. Liability Go.. , 50 AD3d 678, 855 NYS2d 578 [ 2d Dept., 2008]). Article 7. oi of the lease. states that the tenant "shall, a:t its sole. cost .and expense, take gooc;i care of the Premises incl ti.ding; without 1 itni tat ion, paving and. curbing, .a:nd shal 1 keep 2 2 of 4 [* 2] ----------------------------···--·······-·······-···· ........ INDEX NO. 522161/2019 FILED: KINGS COUNTY CLERK 09/22/2022 12:43 PM NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 09/22/2022 the same in good order and condition'' (id). The defendant asserts the only way in which the tenant can cure the defects and restore the lot is to completely repave and regrade the lot and that such improvements would cost over one million dollars. The plaintiff asserts that it has made all the necessary repairs and will continue to make repairs as they become necessary, however, repaving the entire lot is beyond what is required pursuant t6 the lease. Thus, contrary to the arguments of the defendant, the plaintiff does not assert that it unequivocally is unwilling to cure any defaults (Metropolis Westchester Lanes Inc., v. Colonial Park Homes Inc., 187 AD2d 492, 589 NYS2d 570 [2d Dept., 1992]), but rather the default alleg-ed requiring a complete repaving of the lot is not a default under the lease. The plaintiff submitted an ~xpert affidavit of Anthony DiProperzio who concluded that "the subject property is not in a state of disrepair which would require the total demolition of the asphalt surfaces and replacement with new due [si-c] to the use of the property by the Tenant aB a flea market since 2013 .and that thE= Tenant has performed reasonable repairs in order to maintain the property in reasonable good order artd condition" {see, Expert Report of Anthony DiProperzio, page 1) . Thus, a con trc3.ry expert reip9rt that d).: sput es th.e one subrni tt:ed by the plaintiff or .isolated statements within Mr. DiProperzio' s report that the defendant argµes demonstrc:rtes a consensus regarding the 3 [* 3] 3 of 4 INDEX NO. 522161/2019 FILED: KINGS COUNTY CLERK 09/22/2022 12:43 PM NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 09/22/2022 need for a total repaving of the lot are really questions of. fact that require further inquiry and discovery. However, those considerations do not .affect the injunction to which the plaintiff is .entitled. this juncture that the Furthermore, it cannot be concluded at tenant; based upon language in the lease requiring the tenant to make all repairs{ must provide a brand new paved lot at a cost of over one million dollars. its very terms cannot mean something new, A repair There can be questions of fact whether something so damaged that is beyond repair must be replaced as new, however, those questions, as noted, do not demand a denial of the Yelloswtone injunction. Therefore, based on the foregoing the motion seeking Yellowstone injunction is granted. The cross-motion is consequently denied. so ordered. ENTER: DATED: September 19, 2022 Brooklyn N.Y. Hoh. Leon Ruchelsman JSC 4. [* 4] 4 of 4 by a

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