Asanda Park Ave., Inc. v. 120 E. 56TH St., L.L.C.

• Citation: 2016 NY Slip Op 32585 (U)
• Decision Date: 23 December 2016
• Docket Number: Index No. 653623/2016
• Parties: ASANDA PARK AVENUE, INC., and GENE FRISCO, Plaintiffs v. 120 EAST 56TH STREET, L.L.C., Defendant
• Court: New York Supreme Court

2016 NY Slip Op 32585(U)

ASANDA PARK AVENUE, INC., and GENE FRISCO, Plaintiffs
v.
120 EAST 56TH STREET, L.L.C., Defendant

Index No. 653623/2016

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

December 23, 2016

DECISION AND ORDER

APPEARANCES:

For Plaintiffs
Matthew J. Walters Esq.
Law Offices of Walters & Walters
20 Vesey Street, New York, NY 10007

For Defendant
David S. Conklin Esq.
Ahmuty, Demers & McManus
200 I.U. Willets Road, Albertson, NY 11507

LUCY BILLINGS, J.S.C.:

I. ISSUES PRESENTED

Plaintiffs are a corporate tenant that sells spa services and products in defendant's building at 120 East 56th Street, New York County, and the individual guarantor of plaintiff tenant's obligations under its lease with defendant. Plaintiffs move for partial summary judgment on their eighth claim, that defendant has actually evicted plaintiff tenant from part of the second floor terrace within the leased premises, C.P.L.R. § 3212(b) and (e), and for removal to this court and consolidation with this action defendant's summary proceeding for nonpayment of rent against plaintiff tenant in the New York City Civil Court in New

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York County. C.P.L.R. §§ 325(b), 602.

Plaintiffs' witnesses attest that defendant has permitted the owner of the adjacent building at 425 Park Avenue to erect a sidewalk shed and scaffolding as overhead protection against falling debris from demolition, excavation, and construction at the adjacent building. This sidewalk shed and scaffolding have blocked off part of the second floor terrace, preventing plaintiffs from constructing an enclosure over the terrace and a barrier around the air conditioning unit to create a sunlit quiet space for clients. The shed and scaffolding have also damaged the heating, ventilation, and air conditioning (HVAC) compressor and restricted access to the compressor for its maintenance and repair. Claiming an actual partial eviction that suspends the obligation to pay rent, plaintiff tenant has withheld approximately $38,000 per month in rent payments during the last nine months, which defendant seeks in its nonpayment proceeding.

Although not sought by plaintiffs' notice of their motion, nor supported by their affidavits, plaintiffs also claim defendant has permitted the adjacent building owner to extend an overhead protective sidewalk shed and scaffolding in front of defendant's facade on 56th Street. This structure has moved part of plaintiff tenant's signage in the form of a flag, blocked visibility of a second installed flag, and prevented installation of signage in the form of awnings. The areas of signage installation are not part of the leasehold, but the lease permits plaintiff tenant to install its signage in those areas.

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Defendant's witnesses attest that the overhead protection covers only a non-material, de minimis part of the second floor terrace limited to the air conditioning units. Regarding the claimed obstruction of signage, defendant concedes that it has not permitted plaintiff tenant to install and maintain all the signage permitted under the lease. Defendant's witnesses nonetheless point out that the adjacent building owner's additional sidewalk bridge and netting to which defendant did not agree, as the bridge and netting do not encroach on defendant's premises, already obscures plaintiff tenant's flags, regardless of the sidewalk shed and scaffolding over defendant's premises that defendant did agree to.

II. ACTUAL PARTIAL EVICTION

To have actually evicted plaintiff tenant from part of the leased premises, defendant must have (1) wrongfully ousted and (2) physically expelled or excluded plaintiff tenant from possession of part of the leasehold. Barash v. Pennsylvania Terminal Real Estate Corp., 26 N.Y.2d 77, 82-83 (1970); Marchese v. Great Neck Terrace Assoc., L.P., 138 A.D.3d 698, 699-700 (2d Dep't 2016); Whaling Willie's Roadhouse Grill, Inc. v. Sea Gulls Partners, Inc., 17 A.D.3d 453, 453 (2d Dep't 2005). The second element distinguishes actual eviction from constructive eviction, which still requires the landlord's wrongful action, a material deprivation of the leasehold's beneficial use, and the tenant's abandonment of at least part of the leasehold, but not a physical expulsion or exclusion. Barash v. Pennsylvania Term. Real Estate

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Corp., 26 N.Y.2d at 83, 86; Schwartz v. Hotel Carlyle Owners Corp., 132 A.D.3d 541, 542 (1st Dep't 2015); Pacific Coast Silks, LLC v. 247 Realty, LLC, 76 A.D.3d 167, 172 (1st Dep't 2010); Jackson v. Westminster House Owners Inc., 24 A.D.3d 249, 250 (1st Dep't 2005). Causing the leased premises to become unusable "is insufficient, as a matter of law, to make out an actual eviction," Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d at 82, which entails both a deliberate disturbance of plaintiff tenant's possession as well as a material deprivation of its beneficial use of the premises. Eastside Exhibition Corp. v. 210 E. 86th St. Corp.,18 N.Y.3d 617, 623 (2012); Bostany v. Trump Org. LLC, 88 A.D.3d 553, 554-55 (1st Dep't 2011); Pacific Coast Silks, LLC v. 247 Realty, LLC, 76 A.D.3d at 172; Marchese v. Great Neck Terrace Assoc., L.P., 138 A.D.3d at 699-700.

An actual eviction, even if from only part of the leasehold, and even though plaintiff tenant remains in possession of the remainder of the leasehold, suspends the entire rent, because defendant, having caused the actual partial eviction through wrongful action, may not apportion defendant's own wrong. Eastside Exhibition Corp. v. 210 E. 86th St. Corp., 18 N.Y.3d at 622; Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d at 83-84. See Joylaine Realty Co., LLC v. Samuel, 100 A.D.3d 706, 706-707 (2d Dep't 2012); Whaling Willie's Roadhouse Grill, Inc. v. Sea Gulls Partners, Inc., 17 A.D.3d at 453; 487 Elmwood v. Hassett, 107 A.D.2d 285, 288 (4th Dep't 1985). Nevertheless, not every intrusion into the leased premises justifies a total

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suspension or abatement of rent. Eastside Exhibition Corp. v. 210 E. 86th St. Corp., 18 N.Y.3d at 622; Cut-Outs, Inc. v. Man Yun Real Estate Corp., 286 A.D.2d 258, 260-61 (1st Dep't 2001). An intrusion that does not materially interfere with plaintiff tenant's use of the premises may warrant damages compensating for the intrusion or injunctive relief prohibiting the intrusion, rather than a suspension of rent. Eastside Exhibition Corp. v. 210 E. 86th St. Corp., 18 N.Y.3d at 622-23; Goldstone v. Gracie Terrace Apt. Corp., 110 A.D.3d 101, 106 (1st Dep't 2013), See id. at 624; Carlyle, LLC v. Beekman Garage LLC, 133 A.D.3d 510, 511 (1st Dep't 2015); Camatron Sewing Mach. v. Ring Assocs., 179 A.D.2d 165, 167 (1st Dep't 1992); 487 Elmwood v. Hassett, 107 A.D.2d at 288.

A. Defendant's Wrongful Action

The parties stipulate that the court may consider the lease attached as Exhibit H to plaintiffs' motion authenticated and admissible for. purposes of determining their entitlement to partial summary judgment. Paragraph 34 of the lease provides:

If an excavation shall be made upon land adjacent to the demised premises, . . . Tenant shall afford to the person causing . . . such excavation, a license to enter upon the demised premises . . . to preserve the wall or the building of which the demised premises form a part from injury or damages, . . . without any claim for damages or indemnity against Owner, or diminution or abatement of rent.

Aff. of Gene Frisco Ex. H ¶ 34 (emphasis added).

The parties agree that the adjacent building owner has excavated its land adjacent to the demised premises. Plaintiffs claim the adjacent owner's sidewalk shed and scaffolding are to

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protect pedestrians from falling debris overhead. Defendants' witnesses, on the other hand, attest that the sidewalk shed and scaffolding blocking off part of the second floor terrace are to preserve the terrace and other parts of defendant's building from damage due to the falling debris and adjacent construction activity.

No New York City Building Code provision or other law that defendant relies on required its or plaintiff tenant's cooperation in providing the overhead protection, however, as defendant urges. The code required the adjacent building owner to provide that protection, which defendant made a business decision to allow, to avoid litigation by the adjacent owner under R.P.A.P.L. § 881, and to play a role in devising the means to preserve defendant's building, and which plaintiffs did not impede. Nevertheless, under ¶ 34 of the...