Briarwood Plaza, Inc. v. Bayside Dance Studio, Inc.
| Decision Date | 03 November 2021 |
| Docket Number | Index 706442/15 |
| Parties | BRIARWOOD PLAZA, INC., Plaintiff, v. BAYSIDE DANCE STUDIO, INC. a/kla SOUTH SHORE PLAZA DANCE STUDIO, INC. a/k/a SOUTH SHORE DANCE STUDIOS, INC. d/b/a ARTHUR MURRAY DANCE STUDIOS SAFWAT GERGES, Defendants. |
| Court | New York Supreme Court |
Motion Date: 6/30/21
SHORT FORM ORDER
The following papers numbered EF112 to EF150 read on this motion by plaintiff for summary judgment, pursuant to Rule 3212(b) CPLR, upon the First, Second and Third Causes of Action in the Plaintiffs Amended Complaint; and to dismiss Defendants' Affirmative Defenses, pursuant to Rule 3211(b) CPLR.
Notice of Motion - Affidavits - Exhibits........................................
EF112-134
Answering Affidavits - Exhibits.......
EF135-149
Reply Affidavits...............
Upon the foregoing papers it is ordered that the motion is determined as follows:
Plaintiff in this action seeks, inter alia, unpaid rent from out-of-possession tenant Bayside Dance Studio Inc., a/k/a South Shore Plaza Dance Studio, Inc., a/k/a South Shore Dance Studios, Inc., d/b/a Arthur Murray Dance Studios (herein "Bayside"), and the guarantor thereof Safwat Gerges (collectively "Defendants"). The term of the Lease Agreement was from July 23, 2012 through December 30, 2015, however Bayside vacated the demised premises on or about February 28, 2013. At some point during the latter part of 2011, plaintiff began the demolition of the building adjacent to the Premises which plaintiff had purchased and, began the construction of a new office building. This construction/demolition project also included the repair and the renovation of the existing multi-level parking garage which was located immediately behind the Premises. The dance studio included a rear wall of large windows, two (2) wooden dance floors, several instruction rooms and a reception area. In furtherance of this demolition and construction project, plaintiff, by its officers, agents, servants and employees, caused the windows in the dance studio to be boarded up with 4"x 8" panels of plywood, without any prior notice to Bayside, in or about 2011. The dance studio business, which defendant operated out of the premises was located in the basement/lower level area of the Premises. As a result of this action, the dance studio was deprived of any natural light from the exterior of the demised premises into the dance studio for well over a one (1) year period of time and was allegedly caused to suffer with the "appearance" of the "boarded" windows during that period of time.
The demolition/construction work included the sanding of stucco siding/walls, cement walls/supports and other friable substances from the exterior of the building on the Premises. Defendants submit that this demolition/construction project caused and resulted in Briarwood, by its officers, agents, servants and employees, releasing, propelling and projecting a large amount of dust particles, dirt particles and other substance particles into the air about the dance studio; about the two (2) hallways leading to the dance studio on the lower level of the Premises, about the areas of the parking garage and, about the areas at or near the entrances to the lower level of the Premises. Beginning in the latter part of2011 and continuing through February 28, 2013, a customer intending to enter the dance studio for dance instruction was unable to park his/her automobile, safely, in the parking garage behind the Premises; was unable to walk to the Premises from the parking garage without walking on or over substantial amounts of particles of dust, of dirt and of other substances on the sidewalk(s) and, on and about, the entryways leading into the lower level of the Premises. Defendants submit that customers were unable to enter the Premises and to walk down either hallway leading to the dance studio without walking on and over plastic on the floor filled with dust particles, dirt particles and other substance particles; were unable to walk in these hallways without seeing and avoiding step ladders, workers, tools and hanging wires; were unable to enter the dance studio without observing a sign, which was taped on the front door of the dance studio, which warned the customer(s) of the dangerous water seepage/leakage condition on the floors of the dance studio; were unable to enter into the dance studio without seeing experiencing and breathing the air filled with dust particles, dirt particles and other substance particles; were unable to enter into the dance studio without smelling and experiencing the awful odors from the mold in the dance studio; and were unable to enter the dance studio without observing the water accumulation on the two (2) wooden dance floors and about the other areas located in the dance studio. Bayside, by its officers, agents, servants and employees, regularly met with, complained to and requested that all of these conditions be rectified, by Briarwood, its officers, agents, servants and employees commencing in the latter part of201 and continuing throughout 2012, until February 28, 203.. The presence of the dust particles, the dirt particles and the other substance particles continued to emanate into the air, on a daily basis, for well over one (1) year after the construction/demolition project was commenced in and about the lower level of the Premises, in and about the hallways in the lower level of the Premises, in and about the parking garage on the Premises, in and about the areas at or near the entrances into the lower level of the Premises and, in and about the dance studio. Defendants submit that the emanation and the projection of these particles of dust, of dirt and of other substances all over the Premises caused many of the customers and employees of Bayside to become ill; to experience eye redness and eye irritation; to experience throat and mouth irritation; to experience difficulty in breathing; caused many of the employees of Bayside to refuse to work in the dance studio business; and caused Bayside to close the dance studio business. Defendants further submit that Briarwood, by its officers, agents, servants and employees, consistently refused to take any steps in order to rectify any of these conditions. Vincent Riso, the managing member of Briarwood, testified that, prior to the demolition of the start of the demolition project, Briarwood did not notify any of the tenants of the building about the upcoming construction; and that the demolition/construction commenced in about November, 2011 and ended around February 2014. Defendants submit that plaintiff advised defendants' employees that there was nothing that plaintiff could or would do in order to rectify any of these conditions, until the demolition/construction project was completed, which occurred in 2014.
By the instant motion, plaintiff-landlord seeks summary judgment upon the First Cause of Action in the Amended Verified Complaint (Breach of the Lease Agreement), based upon Bayside's alleged failure to pay monthly rent payments and the monthly additional rent payments, to the Plaintiff, during the period of time from July 24, 2012 through October 31, 2014. The Plaintiff also seeks an order of this Court granting summary judgment upon the Third Cause of Action in the Amended Verified Complaint (Breach of Guaranty) based upon the alleged breach of the Guaranty by the Defendan,, Safwat Gerges. The Plaintiff also summary judgment in its favor on its claim set forth in the Second Cause of Action in the Amended Verified Complaint for legal fees pursuant to the Lease Agreement Finally, plaintiff seeks to dismiss the five (5) Affirmative Defenses raised by the Defendants in their Verified Answer. The motion is opposed by defendants.
It is well settled that summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hasp., 68 N.Y.2d 320, 324 [1986]; Andre v Pomeroy, 35 N.Y.2d 361 364 [1974]). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Winegrad v New York Univ Med Ctr., 64 N.Y.2d 851, 853 [1985]; CPLR3212[b]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v AJI Indus., Inc., 10 N.Y.3d 733, 735 [2008]). Once a prima facie showing has been made however, "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81 [2003]; see also Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; CPLR 3212[b].. When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]). The court must view the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Rotunda Extruders, Inc. v Ceppos, 46 N.Y.2d 223, 231 [1978]).
A tenant is constructively evicted when "although there has been no physical expulsion or exclusion of the tenant the landlord's wrongful acts substantially and materially deprive the [tenant] of the beneficial use and enjoyment of the premises." (74 N.Y. Jur 2d, Landlord and Tenant §294 [2013])....
To continue reading
Request your trial