Fucile v. L.C.R. Dev., Ltd.

• Decision Date: 30 January 2013
• Citation: 2013 N.Y. Slip Op. 00454,960 N.Y.S.2d 123,102 A.D.3d 915
• Parties: Leonard FUCILE, et al., respondents, v. L.C.R. DEVELOPMENT, LTD., appellant.
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 915
960 N.Y.S.2d 123
2013 N.Y. Slip Op. 00454

Leonard FUCILE, et al., respondents,
v.
L.C.R. DEVELOPMENT, LTD., appellant.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 30, 2013.

[960 N.Y.S.2d 124]

Schrier, Fiscella & Sussman, LLC, Garden City, N.Y. (James B. Fiscella of counsel), for appellant.

Walsh Markus McDougal & Debellis, Garden City, N.Y. (Kevin M. Walsh of counsel), for respondents.

MARK C. DILLON, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and L. PRISCILLA HALL, JJ.

[102 A.D.3d 915]In an action, inter alia, for a judgment declaring that the plaintiffs are in compliance with the terms of a lease with respect to the payment of rent, the defendant appeals, as limited by its brief, (1) from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), dated August 11, 2011, as denied those branches of its motion which were pursuant to CPLR 3211(a)(5) to dismiss so much of the first cause of action as sought a judgment declaring that paragraph 3.01(c) of the subject lease, providing the formula for determining basic rental adjustments, is ambiguous, and that the proper formula to use is the formula submitted by the plaintiffs, and pursuant to CPLR 3211(a)(1), in effect, for a judgment declaring that it was entitled, pursuant to paragraph 6.02 of the lease, to terminate the lease based on the plaintiffs' default with respect to the payment of rent and additional rent, and (2) from so much of an order of the same court dated January 3, 2012, as denied that branch of its motion which was for leave to renew that branch of its prior motion which was to dismiss, as untimely, those portions of the first cause of action which sought a judgment declaring that paragraph 3.01(c) of the lease, providing the formula for determining basic rental adjustments, is ambiguous, and that the proper formula to use is the formula submitted by the plaintiffs.

ORDERED that the order dated August 11, 2011, is reversed insofar as appealed from, on the law, those branches of the defendant's motion which were to dismiss, as untimely, so much of the first cause of action as sought a judgment declaring that paragraph 3.01(c) of the subject lease, providing the formula for determining basic rental adjustments, is ambiguous, and that the proper formula to use is the formula submitted by the plaintiffs, and pursuant to CPLR 3211(a)(1), in effect, for a judgment declaring that the defendant was entitled, pursuant to paragraph 6.02 of the lease, to terminate the lease based on the plaintiffs' default with respect to the payment of rent and additional rent, are granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the defendant is entitled, pursuant to Section 6.02(a) and (b) of the lease, to terminate the lease based on the plaintiffs' default with respect to the payment of rent and additional[102 A.D.3d 916]rent in the event the plaintiffs fail to cure the default in accordance with the provisions of the lease; and it is further,

ORDERED that the appeal from so much of the order dated January 3, 2012, as denied that branch of the defendant's motion which was for leave to renew that branch of its prior motion which was to dismiss, as untimely, those portions of the first cause of action which sought a judgment declaring that paragraph 3.01(c) of the lease, providing the formula for determining basic rental adjustments, is ambiguous, and that the proper formula to use is the formula submitted by the plaintiffs, is dismissed as academic in light of our determination on the appeal from the order dated August 11, 2011; and it further,

ORDERED that one bill of costs is awarded to the defendant.

This is an action for a judgment declaring, inter alia, that the plaintiff tenants are

[960 N.Y.S.2d 125]

in compliance with the terms of a lease (hereinafter the Lease) with respect to the payment of rent. The plaintiffs commenced this action after being served with notice that they were in default with respect to the payment of rent increases and tax and insurance payments from 2005 through 2010. In the first cause of action, the plaintiffs sought a judgment declaring, inter alia, that paragraph 3.01(c) of the Lease, providing the formula for determining basic rental adjustments, is ambiguous, that the proper formula to use is the formula submitted by the plaintiffs, and that the defendant was not entitled, pursuant to paragraph 6.02 of the Lease, to terminate the Lease based on the plaintiffs' default with respect to the payment of rent and additional rent. As a second cause of action, the plaintiffs sought to reform the Lease, based upon mistake, to conform to the plaintiffs' method of calculation.

The defendant moved to dismiss the complaint based on a defense founded upon documentary evidence, the statute of limitations, and failure to state a cause of action. The Supreme Court granted the motion with respect to the second cause of action, determining that it accrued on January 4, 2001, the date that, pursuant to an assignment and assumption agreement with the original tenant, the plaintiffs assumed the tenant's obligations under the Lease. The Supreme Court concluded that, since the action was commenced in January 2011, the cause of action to reform the Lease, based upon mistake, was barred by the applicable six-year statute of limitations. However, the court determined that so much of the first cause of action as sought a judgment declaring that paragraph 3.01(c) of the Lease, providing the formula for determining basic rental adjustments, was...