D'Espresso of 42nd St., LLC v. Green 317 Madison, LLC

• Decision Date: 28 February 2014
• Docket Number: Index No. 150087/2014
• Citation: 2014 NY Slip Op 30508
• Parties: D'ESPRESSO OF 42ND STREET, LLC Plaintiff, v. GREEN 317 MADISON, LLC, et.al., Defendants.
• Court: New York Supreme Court

2014 NY Slip Op 30508

D'ESPRESSO OF 42^ND STREET, LLC Plaintiff,
v.
GREEN 317 MADISON, LLC, et.al., Defendants.

Index No. 150087/2014

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55

Dated: February 28, 2014

DECISION/ORDER

HON. CYNTHIA KERN, J.S.C.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for: ______________________________

Papers	Numbered
Notice of Motion and Affidavits Annexed	1
Answering Affidavits and Cross Motion	2
Replying Affidavits	3
Exhibits

Plaintiff has brought the present motion against its landlord for a preliminary injunction tolling the running of the termination notice served by the landlord pending the determination of the underlying action. The defendant landlord has brought a cross-motion to dismiss the complaint on the basis that it terminated the plaintiff's lease as of January 13, 2014 by reason of plaintiff's default in the payment of rent. As will be explained more fully below, the cross-motion to dismiss the complaint is granted and the motion for preliminary injunctive relief is denied.

Page 2

The relevant background is as follows. The parties entered into a commercial lease in October 2009 which was later amended pursuant to a Lease Modification and Additional Space Agreement dated as of March 25, 2010 (the "Lease"). Section 51.01 of the Lease provides that "[i]n the event that Landlord shall wish to (i) demolish or rehabilitate the Building or a majority thereof..., then Landlord shall have the right at any time to terminate this Lease (the "Terminatior Option") provided that...Landlord shall give prior notice (the "Termination Notice") to Tenant of Landlord's exercise of the Termination Option at least three hundred sixty-five (365) days prior to the proposed termination date set forth in such notice (the "Termination Date"). The Lease also provides in section 5.01 that if tenant defaults in the payment of rent, and if landlord gives a notice to cure, and tenant does not cure by paying the demanded rent within the cure period, then the landlord can give a notice terminating the Lease.

By letter dated September 27, 2013,...