Double D Williamsburgh Inc. v 742 Driggs LLC

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Double D Williamsburgh Inc. v 742 Driggs LLC 2023 NY Slip Op 31821(U) May 24, 2023 Supreme Court, Kings County Docket Number: Index No. 507272/2023 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. 507272/2023 FILED: KINGS COUNTY CLERK 05/30/2023 02:18 PM NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/30/2023 SUPREME COURT OF .THE STATE OF NtW YORK. COUNT),' OF K.IN:GS ; CIVIL TERM: COMMERCIAL .8 -----·--- -.. ------.- -------- --.-- .: ---. - . ---.-·-x DOUBLK D WILLIAMS BURGH INC •.,. Dec~sioh and ord~r Plaintif f, Iridex ijo. 507272/2 023 - against 742 DRIGGS LLC, D:efenda nt, May 2·4, -------- ---- ----- -------- ------ --- ---x ·2023 Motion Seq. #1 PRESENT: HON. ·LEON RUCHELSMAN Tp.e plain.ti ff has moved s.~ekirig a Ye.llows tone injuncti on ... The .de.f endant has opposed the motion. the paTties and arg11rnen ;ts held. P~per::s we-re :subn:Litt ed by Aft~r reyie"'7itig all the ?:trgument s,,. thi$ court now makes the followin g determina tici1;1. On Ju.ly .17, 2022 the plainti ff tenant entered int.9 a lease with landlord .con:c;ern ing th.e rental of space. located at 7.42 Origgs Avenue. in Kings County. res,taura nt.~ Te rental space is -µtilize.c: l as a A. notice· to cure ·was served on Febr;uaty 14, 2023 ·alleging thre.e: def au,lt s ~, The fir s.t de f'ai.,il t a 11.e.ged the terian t permitte d ex:ces s i v'e poise at the p rem.is es .. The second .default alleged the tenant installe d h 9 ngi:(lg lights. in lease. violatio n of toe 'i'he· third default alle·ged the te.nant placed iterns· µnde.r the f ir.e escape in viol;;i.tio n o·f the lease~ The plaintif f. has· moved seekirig c1 Yellows tone injuncti on ar.guing either the. ·noted defaults ·are ba·seles, s or that in any event they can readily' .be cured.. [* 1] As noted, ttie cl.efenda nt opposes the motion. 1 of 5 INDEX NO. 507272/2023 FILED: KINGS COUNTY CLERK 05/30/2023 02:18 PM NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/30/2023 Cbnclusio ns of Law A. Yellowsto ne injunction is a remedy whereby a tenant may obtain a stay tolling the cure period "so that upon an adverse determinat io.n on the merits the tenc,mt may cure the default and avoid a forfeiture " v. (Graubard Mallen Horowitz Pomeranz 600 Third Ave. Assocs. , 93 NY2d 5 08, & Shaoiro 693 NYS2d 91 [ 19 99] , First National Stores v, Yellowsto ne Shopping Center Inc., 21 For a Yellowsto ne injunction to NY2d 630, 290 NYS2d 721 [1968]). be granted the Plaintiff , among other things, must demonstra te that "it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises" (Graubard, supra) . Thi.ls, a tenant seeking a Yellowston e must demonstra te that: (1) (2) it holds a commercia l lease, landlord a notice of default, (3) it has received from the its applicatio n for a temporary restrainin g order was made prior to expiration of the cure period and terminatio n o.f the lease, and ( 4) it has the desire and ability to cure the alleged default by any means sl:10rt of. vacating the premises (™, Xiotis Restauran t Corp.,· v. LSS Leasinq Ltd. Liability Co,, 50 AD3d 678r 855 NYS.2d 578 [2d Dept., 2008]}. Many of the de.faults are disputed by the plaintiff as constituti ng .defaults. Thus, the plaintiff does not assert that i t u11equivoc ally is unwilling to cure any defaults 2 [* 2] 2 of 5 (Metropol is INDEX NO. 507272/2023 FILED: KINGS COUNTY CLERK 05/30/2023 02:18 PM NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/30/2023 Westchest er Lane·s Inc. , v. Colonial Park Homes Inc., 187 AD2d 492, 589 NYS2d 570 [2d Dept., 1992]), put rather no such defaults exist. Therefore ; the court will examine the defaults and if such a:re found tcia. exist, the plaintiff will undoubted ly cu.re them (see, ERS Enterpris es, Inc.; v. Empire Holdings LLC, 286 AD2d 206, 72-9 NYS2d 23 [1 st Dept., 2001]). Concernin g the default regarding excessive noise, paragraph 80 of the rider to lease states the tenant will insure the demised premises does not exhibit "excessiv e uhreason:aa ble noise" (see, Paragraph HO ci'f the Rider [NYSCEF Doc. No. SJ). There are surely questions of fact whether in fact such noise exists to constitute a breach of the lease. This issue must be explored through discovery and at this juncture the motion seeking a Yellowsto ne is granted. The next default alleged the placement of hanging lights in the rear yard constitute d impermiss ible alteration s without the landlord's approv:a,l. Paragraph 3 of the lease and paragraph 71 of the rider both concern alteration s. Paragraph 3 deals with "alteratio ns, installati cms, additions or improveme nts which are hon structura l" and paragraph 71 of the rider deals with alteration s that require work to be done at the premises (see, Paragraph 3 of the lease and Paragraph 71 of the Rider [NYSCEF Doc. No. SJ) . The mere hanging of lights hardly can be termed alteration s to the premises as obritempla ted by the lease or the 3 [* 3] 3 of 5 FILED: KINGS COUNTY CLERK 05/30/2023 02:18 PM NYSCEF DOC. NO. 18 rid"er. INDEX NO. 507272/2023 RECEIVED NYSCEF: 05/30/2023 Sµ-rely there: c3.Tt; In que::;tion s of fact in this reg-ard. c-oncerni n·g this any event; thEJ Yellowst one. inj"uncti on is grante·d . . . alleged violatio n. Lastly, Paragrap h 6 of the lease does not mention fireescapes, but does require the- tenant to comply .with all fire safety codes. Tf the tenant's a.ct,i vi tie_s of placing i terns under the fire esca_pe violates an:y fire code then surely th$ tenant will cure such d~fects. P:a:i;-agra:ph 56 (a) o-f the rider states that "all waste and garbage· from the demised prernis.e s shail be pJ,.p.ced by Tenarit in -cov.ered contai11. er.s Qr se_a1:e_d pl_astic bags and s.tored by Tenant in ·the demised pi;:emise s pending removal of same by .a ;private sanitati on company" (id,) • The, th.;Lrd violatio n also asserts that ·thl3 te_nant v:i."o.la-ted the· above provisi_o n and that "e.ven after ·private s.a.p.ita.t ion picks, up. the g;arbat;re , the garbage bins. rem.qin in ·front o·.f the b-uildirtg _ unt:i,l c;1pproxim a}:ely 5 ~-0_0 pm until when the- restaura nt r.e·opens for b11sine,s s, _As per the lease, you are requi.red to keep said g-arba;ge .sto,r·ed .:i,n the demised premis-e s arid only pµt q_ut for the _pr1vate s.a.ri.itati ort .comp.arty to: pi·ck up sarp.e" (see, Notice to Cure Lease Defaµlt, 6]) , Paragrap h 3 [NYSCE-F Doc. No. However-, . the rider to the. lease does rfot impose arty time fr-ame' when the garbage bitrs must be returned t;-o the demised p.reinise s .. There are surely question_ s o·f f.a:ct ·whether lecJ,ving the g-arbage bins, [* 4] in. the frorit of the premise s -afte-r tn.e garbage has 4 of 5 INDEX NO. 507272/2023 FILED: KINGS COUNTY CLERK 05/30/2023 02:18 PM NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/30/2023 been collected constitut es a violation of this provision: , In any event, discovery will explore the issue and the tenant will surely cure any violation that may exist. Therefore , based on the foregoing the motion seeking a Yellowston e injunction is granted as to all the defaults. so ordered. 'ENTER: DATED: May 24, 2.023 BrooklynN .Y; Hon, Leort Ruchelsma n JSC 5 [* 5] 5 of 5

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