MSK Props., LLC v 62-08 Realty LLC

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MSK Props., LLC v 62-08 Realty LLC 2023 NY Slip Op 31597(U) May 9, 2023 Supreme Court, Kings County Docket Number: Index No. 504784/2023 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. 504784/2023 FILED: KINGS COUNTY CLERK 05/12/2023 09:49 AM NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 05/12/2023 OF THE STATE OF NEW YORK COURT SUPREME . . . COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 - -- -- ------ ------ ---- ------ ------ - --x MSK PROPER TIES, LLC, RMbS REALTY ASSOCIATES LLC, 745 64TH REALTY ASSOCI ATES, LLC, 6405 SEVENTH AVENUE, LLC, MSK PROPER TIES OF BROOKLYN, LLC, Plaint iff, Decisio n and order Index No. 5047&4 /2b23 - agains t - 62-08 REALTY LLG, 37-19 REALTY INC., WLGT HOLDINGS LLC, EA 8TH PiVE LLC, AA 8TH AVE LLC, EIGHTH AVE VA, LLC, Defend ant, .__ ··-.--·-· -- .--· .- . --.-· .------ . --. -- .-·-·- .-·. --:x PRESENT: HON. LEON RUCHELSMAN May 9, 2023 Motiort Seq, #1 #2 & The plaint iffs have moveci seeking a Yellow stone injunc tion. The defend ants have cross-m oved seeking to dismis s the action on the ground s the.pa rties have agreed to arbitra te the matter . motion s hav·e been oppose d respec tively. the parties and argume nts held. The Papers were submit ted by After review ing all the argume nts, this court now makes the followi ng determ ination . On Ma:y 21, 2014 the plainti f:Es, tenant s entered into a master lease with the defend ants, landlo rds concer ning proper ty located in Kings County . A supplem ental lease was enter'e d into betwee n the partie s and after Octobe r 31, 2015 would operat e as a month to month tenancy . Furthe r, a develop ment agreem ent was entered into betwee n the parties which reitera ted the proper ty is encumb ered by the two leases as well as three off,...si te parking restric tive declar ations . mainta in certain insuran ce. The leases require d th:e plaint iff$ to Oh March 3, 2023 the defend ants served a notice of ti:.rni.in ation on the plaint iffs for their 1 of 4 INDEX NO. 504784/2023 FILED: KINGS COUNTY CLERK 05/12/2023 09:49 AM NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 05/12/2023 failure- to ..maintain ade.qu;;3.te 1ns:uri3._nce. The p_lainti.ffs in.stituted this ac..tiori and n.ow mov.e_ seeking a. Yellowstone The def enda·nts have opposed the motion a·nd have injundticin. ·cross-moved seeking to d:ismis.s the -1-awsu_it on the grounds- the parties. must settle this. matter in. arbitration. Conclus•ions ·of Law )'It is firmly established tl:lat the pubiic policy of New York State .fa:vors_- q.nd encoui·ag-es a:rbitration arid alternative dispute resolutions" Tr. Auth., 8'2 (We:stinghoi.1se E-lec. Corp. v. New York City NY2d 4 7, "6.03 NYS2d 404 [ 1993 l , citing( Nation:wid~ Gen. Ins. co •. v. Investors Ins. co-,. of Am., 37 NY2d 9-I [19·7_5]) . It is well s.ettled that a party cannot be subject to arb:i. tration absent a clear and uneqµivoe;al agre·emen:t to arbitrate (see, Waldron v. Goddess, 61 NY2d ·1-81, 473 NYS:2d 136 [19f3'4-]). Thus, where art arbitration clause enoompi;iSses all disputes _between the parties and i:s unc;1.m.biguous s.u_ch arbitration c1ause w'-ill be enforced (Stoll America Knitting Machinery Inc., v. Creative Knitwear Corp.,. $ Ab3d 586, 772 NYS2d 863 [2d Dept., 2004] ·). In ccintrast, a .clause· will be he.ld ambiguous if -ke.y terms are not defined ih the agreement (Spataro v .. Hirschhorn, 40 AD3d 1070, 837 NYS2d 258 [2d De.pt.., -2.0.(}7]} • Arti.e1e ll(e) o:f the_ deve-loprnen,t qgreement states that "in the event of any dispute, claim or controversy among the parties 2 2 of 4 INDEX NO. 504784/2023 FILED: KINGS COUNTY CLERK 05/12/2023 09:49 AM NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 05/12/2023 arising out of or relating to :this Agreemen:t ... that cannot be resolved by the parties, such dispute shall be resolved by and through an arpitratio n proceedin g conducted under the auspices of the American Arbitratio n Associatio n" (see, Developme nt Agreement , .!JI 11 (e) {NYSCEF Doc. No'. 13]) . The developme nt agreement further states that "this Agreement constitute s a part Of, ar1d an amendment to, the Parking Declaratio ns, the Master Lease and the Parking Leases and the terms hereof are deemed incorpora ted by referenced into such documents (and the term,s of such documents are deemed incorporat eci by reference herein) (and in the event of any conflict between any term hereof and any :terms o_f such other documents , the terms here.of shall govern and control);, 13] ) . ( see, Developme nt Agreement , <JI 4 {NYSCEF Doc. No. Thus, the arbitratio n clause contained in the dev·elopme nt agreement flows to the leases aS well. The plaintiff s .dispute that propositio n ctnd assert the only matters that are subject to arbitratio n are those contained in the developme nt agreement and not the. leases. There are clearly questions of fcict whether the matter is subject to arbitratio n. Whether the matter is subject to arbitratio n should be determine d by the arbitratio n panel. Therefore , the parties are directed to proceed to arbitratio n to determine whether arbitrati9 n is even required. If the arbitrato rs determine they maintain jurisdicti on then the 3 3 of 4 FILED: KINGS COUNTY CLERK 05/12/2023 09:49 AM NYSCEF DOC. NO. 109 INDEX NO. 504784/2023 RECEIVED NYSCEF: 05/12/2023 litigation will continue in that venµe. If the arbitrato rs determine the matter sh9µld not be arbitrated then the parties sball notify the cou:i:t and the Yellowston e injunction request They stay remains in effect will be examined at that time. pending the detecrmina tion of the arbitratio n panel. Bo ordered. ENTER: DATED: May 9, 2023 _ Brooklyn N.Y. __::::.::.--- Hon. Leon Ruchelsrna n JSC 4 4 of 4

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