255 ADC Realty Corp. v Popular Jewelry Corp.

Annotate this Case

Download PDF

255 ADC Realty Corp. v Popular Jewelry Corp. 2022 NY Slip Op 33243(U) September 20, 2022 Supreme Court, New York County Docket Number: Index No. 651440/2019 Judge: Lucy Billings 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. l NYSCEF INDEX NO. 651440/2019 DOC. NO. 49 RECEIVED NYSCEF: 09/26/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 41 --------------~---- --~--- ------- - ~---x 255 ADC REALTY CORP., Index No . . 651440/2019 Plaintiff' DECISION AND ORDER . .,. against POPULAR JEWELRY CORP. a/k/a POPULAR JEWELRY INC. , Defendant --------- ----------- ------ ----~------x LUCY BILLINGS, J.S.C.: I. BACKGROUND Defendant enter~d a writte~ su&lease, dated October 1, 2010, for use of pl~intiff's premises 255S Canal Street, New York County, until September 30, 2018 . . The sublease required_ defendant's work on the premises to "comply with orders, rules and regulations of all government authorities having jurisdiction of the. Pre~ises.n Baltzis in Opp'n Ex. B § 44(C) (a). Aff. of Konstantinos G. On January 15, 2011, the New York City Department of Buildings (DOB} issued a Notice of Violation to plaintiff, aftei fendant instal building's facade without a b·oB permit. signs on the Plaintiff cured the violation March 1, 2011, arid:p~id a $4,000.00 fine March 18, 2011. Over seven years latar, December 21, 2018, plaintiff mailed a demand letter to defendan:t. f6r costs incurred from the DOB 255adc922 [* 1] 2 of 8 INDEX NO. 651440/2019 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 09/26/2022 -------- -------- Plaintiff commenced this action March 11, 2019, to violation. recover damages for defendant/s alleged breach of the sublease, indemnification, and attorneys' II. fees. DEFENDANT'S MOTION TO DISMISS THE.VERIFIED COMPLAINT Defendant moves to dismiss the verified complaint because plaintiff did not commence this action within six years of , . defendant's alleged breach 6i the-sublease. C.P.L.R. §§ 213(2), 3211 (a) (5). A. Extending the Statute of Li~itations to the End of the Sublease Plaintiff contends that defendanE breached the sublease when DOB issued the Notice of Violation January 15, 2011, but asks that the statute of limitations be· extended to September 30, 2018, because defendant failed .to surrender the premises pursuant to the sublease. Secti6n 21 ~!~the sublease provides: Upon the expiration or other termination of the term of this lease, Tenant <shall' qu:L t and -surrender to Owner the demised premises, "broorri'....:clean," in good order and conditiort, ordinary we~f·excepted, and Tenant shall remove all its property.- Tenant's obligation to obs.erve or perform this covenant shall su:rvive the expiration or other termination of this lei~e. · Baltzis Aff. in Opp'n Ex. B § _21. . . . Yet the verified complaint . contains no allegations ri:!garding.a violation of this section of the sublease. Plaintiff's b.teach of contract claim, even liberally construed, plainlya.tises from defendant's alleged r ..;<·c noncompliance with DOB's code>requirements, not from defendant's failure to surrender the pre'triises. "''broom-clean,' in good order ,, 255adc922 [* 2] 2 3 of 8 INDEX NO. 651440/2019 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 09/26/2022 --------·······-··----·---------- and condition." Id. Thus plaintiff may not rely on this sublease section to sust~in p\~intiff's breach of contract claim. Moreover, plaintiff acknowledg~s that defendant renewed the sublease June 27, 2018, directly with the overlandlord, which terminated plaintiff's interest in the premises. Thus defendant owed no obligation to surrender the premises to plaintiff by September 30, 2018, and, ·a.'s p}-aintiff acknowledges, did not in fact surrender so as to trigger ~n obligation to leave the premises "'broom--'clean,' in good order and condition." B. Id. Continuing Wrongs Plaintiff also contends that the continuing wrongs doctrine tolled the statutes of limitation until defendant's last-breach occurred, but the verified complaint lacks any allegation that defendant breached a "recurring duty." A.D.3d 599, 602 (1st Dep't 2017). Henry v. Bank of Am., 147 Rather, the complaint all~ges three.claims, each of which ~rises fr6~ the same DOB violation issued January 15, 2011. Absent any allegation of continuing " . ·~ ' unlawful conduct, the contiriu~ng wrongs doctrine is inapplicable. New York Yacht Club v. Lehod~y. 171 A.D.3d 487, 487 2019); Gibbons v. Grondahl, 161- A.D.3d 590, 590 (1st Dep't (1st Dep't 2018); Henry v. Bank of Am., 147 A'.D.3d_ at 602. The court does not con~idei fhe affidavit of Sit Kwan Cheung, plaintiff's president~; to t:he extent. that he attests to other breaches of the subleas~, s~nce the complaint does not 255adc922 [* 3] 3 4 of 8 INDEX NO. 651440/2019 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 09/26/2022 ..... -allege these claimsi· Because the comp·l·a·±nt·-refers·-s·o1e·J:y ..t:o-t'rfe DOB violation issued January 15r 2011, without additional allegations of a continbing wrong, the statute of limitations for defendant's alleged breach of the sublease runs from that date, which is over six years before plaintiff commenced this action in 2019. C.P.L.R. § 213(2); Acguafredda Enteiprises LLC v. Sterl~ng Natl. Bank, 202 A.D.3d 501, .502 ·( Univ., Inc., 202 A.D.3d 494, 494 Dep't 2022); Spada v. Aspen ( Dep't 2022). Even were the court to consider Cheung's attestations, none of defendant's alleged cond~ct' Would extend the statute of limitations the breach of that defendant caused a claim. Cheung alleges fire in .2014, but the statute of limitations for property darriag~ three years. 214 ( 4) ; Amer icon Cons tr. , Inc. v. Cirocco & C.P.L.R. § Ozzimo, Inc., 205 A.D.3d 568, 569 (1st bep'i 2022); Ubiles v. Ngardingabe, 194 A.D.3d 436, 436 (1st Dep't 2021); troy-McKay v. Mount Sinai Beth Israel, 182 A.D.3d 524; 525 tiep't 2020); Verizon New York Inc. v. Cons6lidated Edison, ~~c.,:127 A.b.3d 621, 622 {1st Dep't 2015). .a Cheung's further allegation actionable under the sublease~ 2019 DOB violation is not .the allegation falls outside the term of the sublease between·· plaintiff and defendant, and could not have caused plaintiff.da~ages when it no longer held any interest in the cited premises: 255adc922 [* 4] 4 5 of 8 To the extent the violation INDEX NO. 651440/2019 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 09/26/2022 indica"tes a r·ecurring sign'age'· condition similar to the 2011 violation, since plaintiff alleg,es it cured the prior violation, the new violation does not suggest a continuous wrong by defendant, but instead suggests •that plaintiff's cure was faulty. C. Costs to C~re th~ 2011-Violation Plaintiff's remaining claims also have expired. The statute of limitations applicable to,pl~1ntiff's claim for . ,. . .. ~ indemnification of the $4,0po:oo ·fine that plaintiff paid to DOB runs from March 18, 2-011. Ted~sco v. A.P. Green Indus., . N.Y.3d 243, 247 Inc., 8 . (2007);. Residential Bd. of Managers of Platinum v. 46th St. Dev., LLC, 154 A.0.3d 422, 423 (1st Dep't 2017); Varo, Inc. v. Alvis PLC, 261.A.o:2a 2~2, 265 (1st Dep't 1999). Plaintiff alleges that it inc~ried-~ther costs to cure the violation, besides the $ 4, 000 .00-· fine, totaling $31,415.08, · for which plaintiff claims indemnification, but the complaint does not these alleged coits~ .nor dates plaintiff incurred Baltzis Aff. in Opp'n Ex. I I I 15, 27, 29, 30, 36, 40. them. As evidence of costs to cure fhe violation incurred after March 2011, plaintiff pointi io a Cert of No Effect from the New York City Landmarks ·Preservation Commission, which again ( the complaint nowhere menttons, ~rid which is unauthenticated and without any foundation for its adiliis~ibility as evidence supplementing the complaint. Nonnon v. City of New York, . N.Y.3d 825, 827 255adc922 [* 5] . . . (2007); Cron v. Hargro Fabrics, 5 6 of 8 9 . 91 N.Y.2d 362, INDEX NO. 651440/2019- I I ./ NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 09/26/2022 366 (1998); US Suite LLC v.. Bar·ata, Baratta & Aidala LLP, 171 A.D.3d 551, 551 (1st Dep't 2019)] Ray v.. Ray, 108 A.D.3d 449, 452 , even were the court to consider this (1st Dep't 2013). unsworn hearsay document, it ,merely dictates that the installation of signage .for fendarit's jewelry store will be on the awning only, will not affect architectural features, and "will be in keeping with signage fo'und on buildings of this type and period.u Baltzis Aff. in Opp'n Ex. E, at 2. It indicates neither the signage condition.that DOB cited as a violation, nor any correction or absenc~ of correctidn of that condition. Finally, .even if this document did .indicate a continuing cure of the 2011 violation, the evitjence limitat action. from 2012, still outside the period of six years before plaintiff commenced this C.P.L.R. § 213(2). The definitive allegation~ and ~vidence presented by plaintiff here demonstrate that.any costs incurred to cure the violation necessarily accrued··before March 1, 2011, when DOB issued a Certif of Corie~tion~eclaring the violation cured, which plaintiff itself presents as evidence of its correction. As plainti violation and £urthei acknowledges, neither the . ·. complaint nor Cheung alleges . .,', this Certificate of Correction ,,, was false or that DOB ected it. Therefore the statute of limitations applicable to plaintiff's claim for indemnification of any costs related to curing the violation runs, at the very 255adc922 [* 6] 6 7 of 8 INDEX NO. 651440/2019 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 09/26/2022 -latest; from March -1, 20 N.Y.3d at 247; Residential Bd. df Managers of Platinum v. 46th St. Dev., LLC, 154 A.D.3d ~t 423; Varo, Inc. v. Alvis PLC, 261 A.D.2d at 265, again over six years before plaintiff commenced this action. tbnsequently, none of C.P.t.R .. § 21102). plaintiff's claims survives·: C:.P.L.R. § 3211 (a) (5). III. CONCLUSION For the reasons expl~ined~~~ove, the court grants plaintiff's motion to dism,iss ·the verified complaint as untimely. C.P.L.R. §§ If pla 213(2), 3211 (a) (5). iff claims it still was incurring costs related to curiti~the 2011 violation through 2018, which the record this action does not reveal, plaintiff is still within the statute of limitations to commence a new action setting forth those .tacts that plaintiff nowhere shows here. DATED: September 20, 2022 LU.CY BILLINGS, J. S. C. LUCY BILLINGS . 255adc822 [* 7] 7 8 of 8 J.S.C

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.