Egger's Original Ice Cream, Inc. v. Staten Island Historical Soc'y
| Decision Date | 11 May 2023 |
| Docket Number | Index No. 150210/2023 |
| Parties | Egger's Original Ice Cream, Inc., Plaintiff, v. Staten Island Historical Society, Inc. d/b/a HISTORIC RICHMOND TOWN and JESSICA B. PHILLIPS, Defendant. |
| Court | New York Supreme Court |
Unpublished Opinion
Attorney for Plaintiff:
Ryan Brand, Esq.
Angiuli & Gentile, LLP
Attorney for Defendants:
Diane Lehman Klein, Esq.
Kucker Marino Winiarsky & Bittens LLP
Eric Russell Mcavey, Esq.
Kucker Marino Winiarsky & Bittens, LLP
The following e-filed documents listed on NYSCEF (Motion #002) numbered 19-30, 55-74 and (Motion #004) numbered 32, 34-46 50-53 were read on this motion.
Upon the foregoing documents, and after argument conducted on March 30, 2023 on Motion Sequence #004 and on April 13, 2023 on Motion Sequence #002, Motion Sequence #002 and Motion Sequence #004 are resolved and therefore, it is hereby, ORDERED, that Defendants' motion pursuant to pursuant to CPLR § 3211 [a] [1] and CPLR § 3211 [a] [7] for dismissal of the Plaintiff's complaint is DENIED, and it is further;
ORDERED, that Defendants' motion pursuant to CPLR § 3211 [a] [7] for an order dismissing with prejudice and without leave to replead the Plaintiff's complaint as against Defendant Jessica B. Phillips is GRANTED, with prejudice, and it is further;
ORDERED, the Defendant's request to dismiss Motion Sequence #004 for Plaintiff's failure to comply with the service provisions of the order to show cause is DENIED, with prejudice, and it is further;
ORDERED, the Plaintiff's request for a Yellowstone injunction tolling the time for Plaintiff to cure alleged defaults of the Lease and staying the notice, staying the denial of Second Renewal Option, staying the termination of Lease, staying interference with Plaintiff's use of premises, staying the removal of Plaintiff's property, or recovering possession of the Premises pending final determination of action is GRANTED, and it is further;
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
Memorandum DecisionPlaintiff commenced the instant action by service of a summons and verified complaint on the Defendants on or about January 31, 2023. Plaintiff alleges that it is the tenant of the Defendant and Defendant is improperly attempting to terminate Plaintiff's lease. Plaintiff seeks (1) a Yellowstone injunction tolling the cure period of any violations of the lease and prohibiting the Defendant from exercising termination of the lease or otherwise seeking possession of the premises; (2) a finding that Defendant is prohibited from exercising termination of the lease based on Plaintiff's alleged failure to maintain the premises' pipes; and (3) a finding that Defendant is prohibited from exercising termination of the lease based on Plaintiff's alleged failure to pay additional rent. Plaintiff further seeks (4) a finding that Defendant is prohibited from exercising termination of the lease based on Plaintiff's alleged failure to notify Defendant of alterations in relation to plumbing work performed outside the scope of Article 8 of the lease and (5) a finding that Defendant is prohibited from exercising termination of the lease based on Plaintiff's alleged failure to notify Defendant of alterations in relation to plumbing work and landscaping performed by Plaintiff not in accord with applicable laws and regulations.
Defendants filed Motion Sequence #002 by notice of motion on March 15, 2023 seeking (1) to dismiss the Plaintiff's action against all Defendants pursuant to CPLR § 3211 [a] [1] and CPLR § 3211 [a] [7]; (2) to dismiss the Plaintiff's cause of action against Defendant Jessica B. Phillips pursuant to CPLR § 3211 [a] [7]; and other such relief as deemed just and proper. Plaintiff filed opposition on April 7, 2023. Defendants filed reply on April 12, 2023. Oral argument was completed on Motion Sequence #002 April 13, 2023.
On March 24, 2023, Plaintiff filed Motion Sequence #004 by order to show cause seeking to (1) toll the time for Plaintiff to cure the alleged defaults of the Lease set forth in the "Lease Violations and Non-Renewal of Lease" letter dated March 6, 2023; (2) stay the notice; (3) stay the Defendants from denying Tenant's exercise of its Second Renewal Option; and (4) stay the Defendants from exercising termination of the lease. Plaintiff further seeks to (5) stay Defendants from interfering with Plaintiff's use of the premises; (6) stay Defendants from removal of Plaintiff's Property located within the premises or otherwise recovering possession pending the final determination of this action; and (7) such other and further relief as may be just and proper. Defendants filed opposition on March 30, 2023. Oral argument was heard by the Court on Motion Sequence #004 on March 30, 2023.
Plaintiff, Egger's Original Ice Cream, Inc., is a New York corporation. Defendant, Staten Island Historical Society, Inc., d/b/a Historic Richmond Town (hereinafter referred to as HRT) is a 501(c)3 Non-Profit organization Defendant Jessica B. Phillips (hereinafter referred to as CEO) is the Chief Executive Officer of the co-Defendant HRT. HRT is the owner and landlord of a pop-up structure within its larger complex known as the "Gas Station" on the property known as 441 Clark Avenue, Staten Island, New York.
Plaintiff and HRT entered a lease (hereinafter referred to as Lease) on May 1, 2020, for the premises known as the "Gas Station" within the Historic Richmond Town Complex. Plaintiff has been operating an ice cream shop from the location for just over two years. The initial term of the lease ran from May 1, 2020, and ended on October 30, 2020, and HRT reserved the ability to terminate the lease sooner under certain provisions of the lease. (NY St Cts Filing [NYSCEF] Doc No. 22). Plaintiff was obligated to pay Rent, a percentage of sales rent and additional rent as those terms were defined in Articles 4 and 5 of the lease. (see id).
The lease provides the Plaintiff with two additional options to renew the lease (see id).
Following the expiration of the lease on October 30, 2020, Plaintiff exercised its first of two renewal options by notifying Defendants of its intent. (NY St Cts Filing [NYSCEF] Doc No. 58). The lease was extended pursuant to a valid exercise of the First Renewal Option, and the Lease term was thereby extended through October 30, 2022. (NY St Cts Filing [NYSCEF] Doc No. 20; NY St Cts Filing [NYSCEF] Doc No. 58).
During the lease, there were several incidents involving clogs of the premises' sewer pipes, Defendants allege that the clogs involved the pipes that ran from the premises, across the HRT complex, to the City's sewer lines and were caused by milk fat originating from the ice cream parlor being operated by the Plaintiff at the premises. (NY St Cts Filing [NYSCEF] Doc No. 20). Defendants maintain that milk fat is a direct byproduct of the Plaintiff's business and Plaintiff is the only tenant that uses milk in the complex. (see id). Defendant contends that the clogs were a direct result of the Plaintiff's failure to maintain the sewage pipes and repair them when they became clogged as required by the lease.
In early January 2023, HRT alleges to have sent a Notice of Default to the Plaintiff enumerating defaults under the lease and followed this correspondence with a Termination Notice on or about January 19, 2023. (NY St Cts Filing [NYSCEF] Doc No. 40). On or about January 26, 2023, Plaintiff responded through counsel to contest Defendants' allegations and informed Defendants of Plaintiff's exercise of the lease renewal option. (NY St Cts Filing [NYSCEF] Doc No. 40).
Defendants maintain that Plaintiff was in default of the lease at the time of the second renewal option period, for (1) failing to maintain sewage pipes; (2) continuing food services without functioning drainage; (3) failure to obtain consent of HRT for alterations, failure to obtain approval of HRT of construction and failure to obtain HRT approval of contractor; and (4) failure to obtain government approval and permits prior to construction. Defendants allege Plaintiff was in further default, in that (5) a pipe clog requiring remediation was due to milk fat produced by Plaintiff, Plaintiff was provided with an invoice in the amount of the repair, $24,500.00, and Plaintiff failed to pay this amount as additional rent; and (5) Plaintiff failed to remove its property at the expiration of the First Renewal Lease Term.
Plaintiff maintains that (1) Plaintiff retained plumbing services to make necessary repairs to sewage system; (2) if there are any issues requiring remediation and a temporary ceasing of operations, Plaintiff is ready, willing, and able to cure by way of paying for services to make necessary repairs in a manner approved by HRT; (3) Plaintiff contends that plumbing issues were related to cracks in the underground pipes and not a result of its operations and that plumbing and landscaping services were retained for restorative work affecting the outside of the premises and not an alteration requiring HRT consent.
Plaintiff further contends that (4) the lease does not require Plaintiff to obtain government approval and permits and no evidence has been presented that its plumbing and landscaping work have interfered with the use and occupancy of the complex outside the premises; (5) the allegation to remove property is premature.
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