Jack G. Ct. St. LLC v 16 Ct. St. Brooklyn Owner

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Jack G. Ct. St. LLC v 16 Ct. St. Brooklyn Owner 2023 NY Slip Op 31819(U) May 24, 2023 Supreme Court, Kings County Docket Number: Index No. 500395/2022 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. 500395/2022 FILED: KINGS COUNTY CLERK 05/30/2023 02:18 PM NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/30/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 ----. ----... ---· -------- . ·-------·-- --.- ..----x JACK G. COURT STREET LLC, Plaintiff , Decision and order Index No. 500395/202 2 - against 16 COURT STREET BROOKLYN OWNER LLC, May 24, 2023 Defendant , -·-.-.----- ---.------- ---. - . --·- . - . ----- ··--- . '-x Motion Seq. #4 PRESENT: HON. LEON RUCH.ELSMAN The defendant has moved pursuant to CPLR 3211 seeking to dismiss the arrrended complaint filed by the plaintiff . plaintiff has opposed the motion. parties and arguments held. The Papers were submitted by the Aft.er reviewing all the arguments , this court now makes the following determina tion. As recorded in a prior order, on January 12, 2007 the plaintiff tenant entered into a lease with landlord concerriing the rental of space located at 16 Court Street, suite2211 in Kings County. On April 22, 2022 the court granted i3- YE!.l1owsto ne injunction staying any terminatio n o.f the lease while the parties litigated whether a renewal option was validly exercised . On January 23, 2023 the plaintiff filed an amended complaint which included a claim for harassmen t pursuant to New York City Administr ative Code §2.2-902. The harassmen t claim is based upon a.notice served upon the tenant on November 1, 2022 seeking additiona l rent; a notice served on December 28, 2022 that reitera:te dthe notice served the previous month and the original notice served oh December 31, 2021. [* 1] 1 of 4 The landlord has now moved INDEX NO. 500395/2022 FILED: KINGS COUNTY CLERK 05/30/2023 02:18 PM NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/30/2023 seeking to dismiss the harassmen t claim on the grounds the claim fai.1.s to state any cause of action. As noted, the motion is opposed. Conclusio ns of Law It is well settled that upon a motion to dismiss the court must determine ; accepting the allegation s of the complaint as true, whether the party ca:n succeed upon any reasonabl e view·of those facts (Ripa v. Petrosyan ts, 203 AD3d 768, 160 NYS3d 658 Dept., 20221). [2d Further, all the allegation s in the complaint are deemed true arid all reasbriabl e inference s may be drawn in favor of the plaintiff (BT Holdings. LLC v. Village of Chester, 189 AD3d 754, 137 NYS2d 458 [2d Dept., 2020]). Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determina tion of a pre-disco very CPLR §3211 motion to dismiss (see, Redwood Property Holdings, LLC v. Christoph er, 211 A.D3d 758, 177 NYS3d 895 [2d Dept., 20221) • Pursuant to New York City Ad:tn,inist rative Code §22...:9Q2(a ) a landlord engages in harassmen t when the landlord acts in any manner that "would reasonabl y caus.e a commercia l tenant to vacate covered property, or to surrender or waive any rights under a lease or other rental agreement or under applicable law in relation to such covered property" (id). Further; the landlord must engage in fourteen specific enumerate d acts contained within 2 [* 2] 2 of 4 INDEX NO. 500395/2022 FILED: KINGS COUNTY CLERK 05/30/2023 02:18 PM NYSCEF DOC. NO. 69 the statute. RECEIVED NYSCEF: 05/30/2023 The fifth act states the landlord commits harassmen t by "repeated ly commencin g frivolous court proceeding .s against a commercia l tenant,, (id) . Further, the tenth act states the landlord commits harassmen t by "engaging in any other repeated or enduring acts or omissions that substanti ally interfere with the operation of a commercia l tenant's businessn (id). However, as noted both those alleged acts also require the reasonable likelihood that such acts would ca.µ-se the tenant to vacate or surrender the premises. Considerin g the Yellowstbr ie injunction already granted and the fact the tenant could always seek additiona l Yellowsto ne injunction s, the me:re service of two notices to cure, in this case; did not amount to any harassmen t -as defined by the statute. First, a: notice to cure or a notice to terminate is not a: ''court proceeding '' since it does not involve the court at '3.11. Likewise, the mere service of a notice to cure and even a subsequen t notice to cure does not constitut e any activity that substanti ally interferes with the operation of the tenantfs business. Moreover, the service of a notice to cure is riot an "enduring '' act in any event. Rather, a notice to cure is a notice that a provision of the lease requires attention on behalf of the tenant (see, Waldbaum, Inc. v. Fifth Avenue o.f Lonq Island Realty Associate s, 85 NY2d 600; 627 NYS2d 298 [1995]). Thus, if ari obligatio n of the tenant remains unaddr~ss ed the 3 [* 3] 3 of 4 INDEX NO. 500395/2022 FILED: KINGS COUNTY CLERK 05/30/2023 02:18 PM NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/30/2023 landlord cart serve a notice to cure and if the breaches are not cured or if a Yellowsto ne injunction is not secured ther:i. the landlord can move to evict the tenant. Therefore , the mere service of two notice!3 to cure does not constitut e harassmen t as defined by the statute. The case cited by the tenant One Wythe LLC v. Elevation s Urban Landscape Design Inc., 67 Misc3d 1207(A), 126 NYS3d 622 [Civil Court Kings County 2020] does not hold that the service of notices to cure, even if frivolous , harassmen t. constitute Rather, that case stated that the repeated commencerri.er:i.t of frivolous court proceedin gs could constitute harassmen t. ~s already explained , notices to cure are, not court proceeding s and their productio n, even if :frivol,ous , which the court does not even confirm, cannot constitute harassmen t. Therefore , based on the foregoing the motion seeking to dismiss the harassmen t cause of action is granted. The motion seeking to dismiss the remaining causes of action is denied at this time. So ordered. ENTER: DATED: May 24, 2023 Br.:ooklyn N.Y. Hon. Leon RuC:helsma n JSC 4 [* 4] 4 of 4

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