F&T Management & Parking Corp. v. Flushing Plumbing Supply Co., Inc.

• Decision Date: 15 December 2009
• Docket Number: 2009-01499
• Citation: 68 A.D.3d 920,893 N.Y.S.2d 66,2009 NY Slip Op 9424
• Parties: F&T MANAGEMENT & PARKING CORP., Appellant, v. FLUSHING PLUMBING SUPPLY CO., INC., et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

68 A.D.3d 920

2009 NY Slip Op 9424

893 N.Y.S.2d 66

F&T MANAGEMENT & PARKING CORP., Appellant, v. FLUSHING PLUMBING SUPPLY CO., INC., et al., Respondents, et al., Defendants.

2009-01499

Appellate Division of the Supreme Court of New York, Second Department.

Decided December 15, 2009.

In an action, inter alia, in effect, to enforce a stipulation of settlement, and for a judgment declaring that a right of first refusal granted to the defendant Chien Yang Development Group, Inc., under a certain lease is extinguished, the plaintiff appeals from an order of the Supreme Court, Queens County (Kitzes, J.), entered January 29, 2009, which granted the motion of the defendants Flushing Plumbing Supply Co., Inc., Paul Brown Properties, Ltd., 37-25, LLC, and Paul Brown, in effect, pursuant to CPLR 3211 (a) (1) and (7) to dismiss the first cause of action insofar as asserted against the defendants 37-25, LLC, and Paul Brown, and the second cause of action insofar as asserted against all of those defendants, granted those branches of the separate motion of the defendants Chien Yang Development Group, Inc., Shoho J, LLC, and Chien Tsang Lin which

were, in effect, pursuant to CPLR 3211 (a) (1) and (7) to dismiss the first cause of action insofar as asserted against the defendants Chien Yang Development Group, Inc., and Chien Tsang Lin, and the second cause of action insofar as asserted against all of those defendants, to cancel a notice of pendency filed by the plaintiff with respect to certain parcels of real property, and upon converting that branch of the motion of the defendants Chien Yang Development Group, Inc., Shoho J, LLC, and Chien Tsang Lin which was, in effect, pursuant to CPLR 3211 (a) (1) and (7) to dismiss the third cause of action asserted against them into one for summary judgment declaring that the right of first refusal granted to the defendant Chien Yang Development Group, Inc., under the lease is not extinguished, granted that branch of the motion.

[Prior Case History: 22 Misc 3d 1118(A), 2009 NY Slip Op 50174(U).]

Ordered that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the motion of the defendants Chien Yang Development Group, Inc., Shoho J, LLC, and Chien Tsang Lin which was to cancel the notice of pendency filed by the plaintiff with respect to certain parcels of real property, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof granting the converted branch of the motion of the defendants Chien Yang Development Group, Inc., Shoho J, LLC, and Chien Tsang Lin which was for summary judgment declaring that the right of first refusal granted to the defendant Chien Yang Development Group, Inc., under the lease is not extinguished and substituting therefor provisions denying the converted branch of the motion and searching the record and awarding summary judgment to the plaintiff declaring that the right of first refusal granted to the defendant Chien Yang Development Group, Inc., under the lease is extinguished; as so modified, the order is affirmed, with one bill of costs payable by the plaintiff to the defendants Flushing Plumbing Supply Co., Inc., Paul Brown Properties, Ltd., 37-25, LLC, and Paul Brown, and the matter is remitted to the Supreme Court, Queens County for further proceedings on the second cause of action insofar as asserted against the defendants Leavitt Enterprise, Inc., and Asia Bank, N.A., and the entry thereafter of a judgment, inter alia, declaring that the right of first refusal granted to the defendant Chien Yang Development Group, Inc., under the lease is extinguished.

On June 17, 2005 the plaintiff and the defendants Flushing Plumbing Supply Co. (hereinafter Flushing Plumbing Supply), Paul Brown Properties, Ltd. (hereinafter Paul Brown Properties), 37-25, LLC (hereinafter 37-25), and Chien Yang Development Group, Inc. (hereinafter CYD), entered into a so-ordered stipulation that settled a prior action (hereinafter the stipulation of settlement). Pursuant to the stipulation of settlement, the plaintiff was given an option to purchase three commercial properties owned by Flushing Plumbing Supply, Paul Brown Properties, and 37-25, and leased to CYD for a term of 98 years pursuant to a written agreement (hereinafter the lease). The plaintiff could exercise that option during the period commencing August 1, 2052 and ending on July 30, 2053. The plaintiff's exercise of that option was, however, subject to a right of first refusal granted in the lease to CYD.

On December 17, 2007 one of the properties was sold to the defendant Shoho J, LCC (hereinafter Shoho J). The other two properties (hereinafter the Leavitt properties) were sold to the defendant Leavitt Enterprise, Inc. (hereinafter Leavitt), which financed its purchase with a mortgage loan from the defendant Asia Bank, N.A. (hereinafter Asia Bank).

In addition, on December 17, 2007, CYD subleased the two Leavitt properties back to Leavitt. The term of the sublease ended one day before the end of the term of the lease.

Subsequently, the plaintiff commenced the instant action, seeking, inter alia, to set aside both the sublease and the deeds to Leavitt and Shoho J on the ground that the underlying transactions violated the stipulation of settlement. The plaintiff also sought a judgment declaring that CYD's right of first refusal was extinguished in light of CYD's failure to exercise that right when the properties were sold to Leavitt and Shoho...