ARK BRYANT v. BRYANT PARK

CourtNew York Supreme Court Appellate Division
Writing for the Court<P>NARDELLI, J.</P>
Citation285 A.D.2d 143,730 N.Y.S.2d 48
PartiesARK BRYANT PARK CORP., Respondent-Appellant,<BR>v.<BR>BRYANT PARK RESTORATION CORP., Defendant, and CITY OF NEW YORK et al., Appellants-Respondents.
Decision Date23 August 2001

285 A.D.2d 143
730 N.Y.S.2d 48

ARK BRYANT PARK CORP., Respondent-Appellant,
v.
BRYANT PARK RESTORATION CORP., Defendant, and CITY OF NEW YORK et al., Appellants-Respondents.

NARDELLI, J.

August 23, 2001.


[285 A.D.2d 144]

Arthur M. Handler of counsel, New York City (Robert S. Goodman and David S. Goldstein on the brief; Handler & Goodman, L. L. P., attorneys), for respondent-appellant.

John Hogrogian of counsel, New York City (Pamela Seider Dolgow and John L. Hunt on the brief; Michael D. Hess, Corporation Counsel of New York City, attorney), for municipal appellant-respondent.

Jack Hassid, New York City, for Council of Fashion Designers of America, Inc. and another, appellants-respondents.

SULLIVAN, P. J., WILLIAMS, MAZZARELLI and SAXE, JJ., concur.

OPINION OF THE COURT

NARDELLI, J.

In this breach of contract action, we are asked to determine whether a certain letter agreement between plaintiff Ark Bryant Park Corp. (Ark) and defendant Bryant Park Restoration Corp. (BPRC), which granted exclusive catering rights to Ark for private functions scheduled in Bryant Park, constitutes a sublicense under a "Management Agreement for Bryant Park" between defendant the City of New York (the City) and BPRC.

Background[1]

Bryant Park, which is located between 40th and 42nd Streets on the east side of Sixth Avenue (the Park), New York, New York, is a public park that was designated a New York City Scenic Landmark by the Landmarks Preservation Commission in 1974. The Park, which consists of approximately 10 acres, has undergone a number of transformations and was originally utilized in 1823 as a potter's field following a yellow fever epidemic. In 1842, the Croton Aqueduct Distributing Reservoir was constructed on the land now occupied by the New York Public Library, and the land behind it became a public park in 1847, appropriately named Reservoir Square.

[285 A.D.2d 145]

The City staged the first World's Fair held in the United States in the Park in 1853, and in 1884, the Park was given its present name in honor of William Cullen Bryant. In 1899, the City demolished the reservoir, which had become obsolete due to the City's burgeoning population, and began construction on the present Public Library building, which was officially opened on May 24, 1911. A period of decline began in the 1920's, which was prompted by the effects of the construction of the Sixth Avenue subway. By the 1970's, the Park was the site of open drug dealing and was used as a haven for drug addicts and a refuge for the homeless.

The Contracts

In 1980, the New York Public Library and the Rockefeller Brothers Fund formed BPRC, a not-for-profit corporation devoted to the restoration and long-term maintenance of the Park as a public asset. On July 29, 1985, the City and BPRC executed a contract denominated "Management Agreement for Bryant Park" (the Management Agreement), section 3 of which provides that "[t]he City hereby engages BPRC to provide, and BPRC agrees to provide * * * management services for the Park, and the City does hereby grant to BPRC the exclusive license and privilege to operate and manage the Park * * * so long as BPRC shall maintain the Park as a public park, in accordance with the purposes of this Agreement, upon the terms and conditions herein contained." Section 5 notes that simultaneously with the execution of the Management Agreement, the City, BPRC and the Library were entering into a separate agreement entitled "Terrace Agreement," which leased a portion of the Park known as the "West Terrace" to BPRC with the understanding that BPRC would construct and operate a structure at that location, the subsurface area of which would be used for library stacks, and the surface area as a restaurant.

Section 17 of the Management Agreement, entitled "Concessions; Visitors Services," defines "Visitors Services" as, inter alia, "the operation of any restaurant or cafeteria" and "any service or facility intended for the sale of souvenirs, food, beverages * * * goods or services." Section 17 (b) of the Management Agreement provides:

"The City hereby grants BPRC the exclusive right to operate and maintain Visitors Services in the Park (including the Department [of Parks and Recreation]'s interest in bordering sidewalks), and

[285 A.D.2d 146]

to sublicense others to do so subject to the provisions of this Section 17. The license granted under this Section 17 shall extend from the Commencement Date for the Initial Term or for such longer period as the Commissioner may determine, provided that this license shall be revocable at will at any time by the Commissioner upon thirty (30) days' notice" (emphasis added).

Section 17 (c) of the Management Agreement provides that the license granted to BPRC "will be sublicensed by BPRC to the Operator, with respect to the serving of food and drink and the provision of such other Visitors Services as BPRC and the Operator may provide." Section 17 (d) states, inter alia, that "[n]othing contained in this Agreement shall create (or be deemed to create) any relationship of contract or agency between the City and the Operator or any Concessionaire."

BPRC closed the Park in 1988, and over the course of the ensuing four years restoration and improvements totaling approximately $8.9 million were performed on the Park. On or about September 1, 1991, BPRC and Ark entered into a lease regarding the restaurant under construction and certain kiosks located in the Park. On or about August 1, 1993, BPRC and Ark executed an agreement entitled "Restated Indenture of Lease" (the Grill Lease) which superseded the original lease. The Grill Lease, which is for a term of 20 years, gives Ark the right to operate a restaurant in the building to be constructed by BPRC, and to serve food and beverages outdoors on the West Terrace from May through September. In 1995, Ark opened the Bryant Park Grill, which includes an indoor restaurant and outdoor café, and continues to operate that facility to the present day.

Ark and BPRC also entered into a separate two-page letter agreement, on or about the same date the Grill Lease was executed, regarding catering services to be provided for functions held in the Park (the Catering Agreement). The Catering Agreement provides in relevant part, that: Ark is to be the exclusive provider of catering services for functions taking place in the Park during the term of the Grill Lease, except that BPRC shall be granted two waivers to sponsors holding affairs in the Park to use caterers other than Ark; and no waiver can be issued by BPRC to a sponsor who has previously contacted or entered into negotiations with Ark regarding catering for an event in the Park. The Catering Agreement, as required by section 17 (c) of the Management Agreement, was

[285 A.D.2d 147]

approved by the Commissioner of the City Department of Parks and Recreation (the Department of Parks).

The Current Controversy

Defendant Seventh on Sixth, Inc. (SOS) is a New York not-for-profit corporation which was formed in or about August 1993 for the purpose of sponsoring centralized...

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47 practice notes
  • Bautista v. 85TH Columbus Corp.
    • United States
    • United States State Supreme Court (New York)
    • November 26, 2013
    ...459 U.S. 1146, 103 S.Ct. 787, 74 L.Ed.2d 994 [1983] ). As the Court stated in Ark Bryant Park Corp. v. Bryant Park Restoration Corp., 285 A.D.2d 143, 730 N.Y.S.2d 48 [1st Dept.2001]: “Generally, on a motion to dismiss made pursuant to CPLR 3211, the pleading is to be afforded a liberal cons......
  • Am. Infertility of N.Y., P.C. v. Verizon N.Y. Inc., 159892/2015
    • United States
    • United States State Supreme Court (New York)
    • December 10, 2020
    ...absent such permission, but without granting any interest in the property. Ark Bryant Park Corp. v. Bryant Park Restoration Corp. , 285 A.D.2d 143, 150, 730 N.Y.S.2d 48 (1st Dep't 2001) ; Roman Catholic Church of Our Lady of Sorrows v. Prince Realty Mgt., LLC , 47 A.D.3d 909, 911, 850 N.Y.S......
  • Lai Chan v. Chinese-American Planning Council Home Attendant Program, Inc.
    • United States
    • United States State Supreme Court (New York)
    • September 9, 2015
    ...Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ; Ark Bryant Park Corp. v. Bryant Park Restoration Corp., 285 A.D.2d 143, 150, 730 N.Y.S.2d 48 [1st Dept.2001] ; WFB Telecom., Inc. v. NYNEX Corp., 188 A.D.2d 257, 259, 590 N.Y.S.2d 460 [1st Dept.1992], lv. denied 8......
  • Dore v. Wormley, No. 05 Civ. 2443(BSJ).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 8, 2010
    ...another's land, which would amount to a trespass without such permission." Ark Bryant Park Corp. v. Bryant Park Restoration Corp., 285 A.D.2d 143, 730 N.Y.S.2d 48, 54 (2001) (internal quotations omitted). "A license 690 F. Supp.2d 185 ... grants the licensee a revocable non-assign......
  • Request a trial to view additional results
47 cases
  • Bautista v. 85TH Columbus Corp.
    • United States
    • United States State Supreme Court (New York)
    • November 26, 2013
    ...459 U.S. 1146, 103 S.Ct. 787, 74 L.Ed.2d 994 [1983] ). As the Court stated in Ark Bryant Park Corp. v. Bryant Park Restoration Corp., 285 A.D.2d 143, 730 N.Y.S.2d 48 [1st Dept.2001]: “Generally, on a motion to dismiss made pursuant to CPLR 3211, the pleading is to be afforded a liberal cons......
  • Am. Infertility of N.Y., P.C. v. Verizon N.Y. Inc., 159892/2015
    • United States
    • United States State Supreme Court (New York)
    • December 10, 2020
    ...absent such permission, but without granting any interest in the property. Ark Bryant Park Corp. v. Bryant Park Restoration Corp. , 285 A.D.2d 143, 150, 730 N.Y.S.2d 48 (1st Dep't 2001) ; Roman Catholic Church of Our Lady of Sorrows v. Prince Realty Mgt., LLC , 47 A.D.3d 909, 911, 850 N.Y.S......
  • Lai Chan v. Chinese-American Planning Council Home Attendant Program, Inc.
    • United States
    • United States State Supreme Court (New York)
    • September 9, 2015
    ...Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ; Ark Bryant Park Corp. v. Bryant Park Restoration Corp., 285 A.D.2d 143, 150, 730 N.Y.S.2d 48 [1st Dept.2001] ; WFB Telecom., Inc. v. NYNEX Corp., 188 A.D.2d 257, 259, 590 N.Y.S.2d 460 [1st Dept.1992], lv. denied 8......
  • Dore v. Wormley, No. 05 Civ. 2443(BSJ).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 8, 2010
    ...another's land, which would amount to a trespass without such permission." Ark Bryant Park Corp. v. Bryant Park Restoration Corp., 285 A.D.2d 143, 730 N.Y.S.2d 48, 54 (2001) (internal quotations omitted). "A license 690 F. Supp.2d 185 ... grants the licensee a revocable non-assign......
  • Request a trial to view additional results

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