Tessler Devs. LLC v Gammon Enters., LLC

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Tessler Devs. LLC v Gammon Enters., LLC 2023 NY Slip Op 32027(U) June 17, 2023 Supreme Court, New York County Docket Number: Index No. 151685/2021 Judge: Debra A. James 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. 151685/2021 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 06/17/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DEBRA A. JAMES 59 Justice ----------------------------------------------------------------- ----------------X TESSLER DEVELOPMENTS LLC, INDEX NO. 151685/2021 MOTION DATE Plaintiff, MOTION SEQ. NO. 01/10/2023 001 - V - GAMMON ENTERPRISES, LLC, Defendant/Counterclaim Plaintiff, DECISION + ORDER ON MOTION -andYITZCHAK TESSLER, Counterclaim Defendant. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,26,27,28,29,30, 31, 32,33, 34, 35, 36, 37,38,39,40,41,42,43,44, 45,46,47,48,49,50,51,52,53,54,55,56,57,58,59,60, 61, 65,66, 67, 71 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER) ORDER Upon the foregoing documents, it is ORDERED that to the extent it seeks summary judgment in defendant's favor dismissing the first and second causes of action of plaintiff's complaint that seek declaratory judgments with respect to the subject matter of such causes of action, the motion of defendant is granted, and such causes of action of plaintiff's complaint are dismissed; and it is further ORDERED that to the extent that it seeks summary judgment in defendant's favor dismissing the third cause of action for breach 151685/2021 TESSLER DEVELOPMENTS LLC vs. GAMMON ENTERPRISES, LLC Motion No. 001 [* 1] 1 of 6 Page 1 of 6 INDEX NO. 151685/2021 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 06/17/2023 of contract of plaintiff's complaint, the motion of defendant is denied; and it is further ORDERED that to the extent of its first counterclaim for liquidated damages, the motion of counterclaimant (Gammon Enterprises, LLC) for summary judgment against counterclaim defendant Yitzchak Tessler is GRANTED; and it is further ORDERED and ADJUDGED that counterclaimant's motion is granted and the issue of hold-over rent, or liquidated damages, for the Premises from May 1, 2020 to December 31, 2020 and reasonable attorneys' fees and legal expenses incurred by counterclaimant to be assessed against counterclaim defendant Yitzchak Tessler is referred for determination pursuant CPLR § 4317(b) to a Special Referee and that within sixty (60) days from the date of this Order the counterclaimant shall cause a copy of this order with notice of entry, including proof of service thereof, to be filed with the Special Referee Clerk (Room 119M, 646-386-3028 or spref@courts.state.ny.us) to arrange a date for a reference to determine pursuant to CPLR 4217(b); and it is further ORDERED and ADJUDGED that pursuant to CPLR § 4319 the Clerk is directed to enter judgment in favor of counterclaimant Gammon Enterprises, Inc. and against counterclaim defendant Yitzchak Tessler, in accordance with the report of the 151685/2021 TESSLER DEVELOPMENTS LLC vs. GAMMON ENTERPRISES, LLC Motion No. 001 [* 2] 2 of 6 Page 2 of 6 INDEX NO. 151685/2021 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 06/17/2023 aforementioned Special Referee without any further without any further application; and it is further ORDERED that the third cause of action for breach of contract of plaintiff's complaint is severed, and shall continue; and it is further ORDERED that counsel shall post on NYSCEF a proposed preliminary discovery conference order or competing preliminary discovery conference orders at least two days before August 22, 2023, on which date counsel shall appear via Microsoft Teams, unless such appearance be waived by the court. DECISION Plaintiff tenant's causes of action for declaratory judgment fail as plaintiff has an adequate, alternative remedy in another form of action, i.e., an action for breach of contract, which is its third cause of action. See Ithilien Realty Corp v 180 Ludlow Development LLC, 140 AD3d 621 (1 st Dept 2016) . Upon the expiration of the Lease on April 30, 2020, there is no dispute that plaintiff tenant failed to tender rent from May 1, 2020 through September 30, 2022. In addition, by rent statement captioned "Transaction activity through 07/01/2020", defendant landlord assessed rent at the rate stated under the Fifth Amendment to the Lease. Nonetheless, no month-to-month tenancy was created, as defendant landlord never accepted rent 151685/2021 TESSLER DEVELOPMENTS LLC vs. GAMMON ENTERPRISES, LLC Motion No. 001 [* 3] 3 of 6 Page 3 of 6 INDEX NO. 151685/2021 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 06/17/2023 from plaintiff, as set forth in Real Property Law§ 232-c. Thus, under the Lease, defendant landlord is entitled to holdover rent for the Premises. Moreover, this court determines that contrary to plaintiff's argument, the liquidated damages clause, i.e., ~ 63(b), of the Lease dated September 1, 2010 (the Lease), which assesses hold-over rent at the rate of "two times the average rent and additional rent which was payable per month under the Lease", is enforceable. AD3d 549, 554 (l3t See Seymour v Hovnanian, 211 Dept 2022). On the question of whether plaintiff tenant surrendered possession on September 30, 2022, the court need not consider defendant landlord's representations with respect to what is depicted on the videotapes. Unlike in University Sq San Antonio, Tx LLC v Mega Furniture Dezavala, LLC, 198 AD3d 1284, 1285 (4 th Dept 2021), counterclaim defendant herein fails to assert facts that tend to show that "the parties to the lease both did some act so inconsistent with the landlord-tenant relationship that it indicates their intent to deem [their] lease terminated". Certainly, as to the defendant landlord, plaintiff raises no issue of fact with respect to the defendant landlord's intent in that regard. Thus, defendant landlord is entitled to use and occupancy through December 31, 2020. With respect to plaintiff's breach of contract claim, although the Lease provides for no diminution of rent for the 151685/2021 TESSLER DEVELOPMENTS LLC vs. GAMMON ENTERPRISES, LLC Motion No. 001 [* 4] 4 of 6 Page 4 of 6 INDEX NO. 151685/2021 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 06/17/2023 breaches plaintiff asserts, landlord may be liable for damages arising from its breach of the lease. There are questions of fact with respect to such alleged breaches by defendant. For example, plaintiff asserts that there was a failure of electrical capacity from 2018, rendering the Heating Ventilation and Air Conditioning (HVAC) system inoperable. Lease~ 30 provides in pertinent part "Landlord reserves the right to stop service of the heating, elevator, plumbing and electric systems, when necessary, by reason of accident, or emergency, or for repairs, alterations, replacements or improvements . . And Landlord shall have no responsibility or liability for failure to supply heat, elevator, plumbing and electric service, during said period or when prevented from so doing by strikes, accidents or any other cause beyond Landlord's control". This court concurs with plaintiff that defendant landlord does not contend that it stopped services in Lease ~ 30. Thus, as under the circumstances set forth argued by plaintiff, defendant therefore be cast in damages for breach of contract. can Plaintiff's affidavit presents prima facie evidence that raise issues of fact as to whether obligations Luxury, landlord breached the to provide HVAC Lease with respect and electrical Inc v 940 Madison Associates, LLC, services. 100 AD3d 563 to its See VBH (1 st Dept 2012) . Plaintiff's contentions concerning its inability to use the Premises during the global pandemic as a defense to payment of 151685/2021 TESSLER DEVELOPMENTS LLC vs. GAMMON ENTERPRISES, LLC Motion No. 001 [* 5] 5 of 6 Page 5 of 6 INDEX NO. 151685/2021 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 06/17/2023 rent under the Lease are devoid of merit. Broadway Retail Owner, LLC, 195 AD3d 575 See Gap, Inc v 170 (1 st Dept 2021). J)-~ .A - } ~ 2023061702135 7DJAME54CD9DA5C lDl 7 4F6AA6FF E29DB0983019 6/17/2023 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: DEBRA A. JAMES, J.S.C. ~ CASE DISPOSED GRANTED DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 151685/2021 TESSLER DEVELOPMENTS LLC vs. GAMMON ENTERPRISES, LLC Motion No. 001 [* 6] 6 of 6 0 OTHER REFERENCE Page 6 of 6

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