Greasy Spoon, Inc. v. Jefferson Towers, Inc.

• Decision Date: 11 January 1990
• Citation: Greasy Spoon, Inc. v. Jefferson Towers, Inc., 75 N.Y.2d 792, 552 N.Y.S.2d 92, 551 N.E.2d 585 (N.Y. 1990)
• Parties: , 551 N.E.2d 585 GREASY SPOON INC., Doing Business as West Side Storey, Respondent, v. JEFFERSON TOWERS, INC., Appellant, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 92

552 N.Y.S.2d 92

75 N.Y.2d 792, 551 N.E.2d 585

GREASY SPOON INC., Doing Business as West Side Storey, Respondent, v.JEFFERSON TOWERS, INC., Appellant, et al., Defendants.

Court of Appeals of New York.

Jan. 11, 1990.

[75 N.Y.2d 793][551 N.E.2d 586] Stuart M. Herz, Garden City and Nathan Cyperstein, New York City, for appellant.

Gerald Kahn, New York City, and Bernard S. Meyer, Mineola, for respondent.

OPINION OF THE COURTMEMORANDUM.

The order of the Appellate Division, 150 A.D.2d 990, 543 N.Y.S.2d 600, should be affirmed, with costs.

In 1979, plaintiff leased commercial space from defendant- with the intention of operating a restaurant on the premises.Under the parties' lease, plaintiff was licensed to construct and operate a sidewalk cafe adjacent to the leased premises, provided that its use of the licensed space conformed to local and State legal requirements, as well as to the requirements of the lease.Soon after plaintiff's occupancy began, a dispute between the parties arose concerning plaintiff's alleged violation of the lease provisions prohibiting the generation of offensive odor and noise.The dispute spawned litigation, which was terminated, at least provisionally, by a stipulation and a "supplementary stipulation" requiring plaintiff to take certain specific steps to eliminate any odor or noise problem.

The present dispute concerns defendant's refusal to execute the documents necessary to enable plaintiff to obtain the municipal licenses and permits required for its planned sidewalk cafe.After numerous efforts by plaintiff to obtain defendant's cooperation proved unsuccessful, plaintiff commenced this action for, among other things, injunctive relief and lost profit damages.The gist of plaintiff's claim was that by its obstructionist conduct defendant had breached its obligations under the lease provisions licensing plaintiff to construct a sidewalk cafe.Defendant sought dismissal of plaintiff's breach of contract cause of action, contending that it had no obligations under those lease provisions as long as plaintiff was not in compliance with the lease's noise and odor provisions and the terms of the subsequent stipulations.

Following a trial, the court rejected defendant's contention, concluding instead that the lease provisions licensing plaintiff to construct a sidewalk cafe were not dependent, either under the lease or under the stipulations, upon plaintiff's compliance with the provisions governing the generation of noise and odors.Accordingly, defendant could not avoid its obligation to execute whatever documents were necessary for plaintiff's sidewalk cafe, notwithstanding its ongoing complaints about offensive noises and odors emanating from the plaintiff's existing restaurant.The question of plaintiff's alleged lost profits was submitted to the jury, which returned a verdict in favor of plaintiff awarding $1,571,385 in damages.The Appellate Division affirmed, without opinion, and granted defendant leave to appeal to this court.

The courts below correctly rejected defendant's contention that its lease obligation to cooperate with plaintiff in the construction of its sidewalk cafe was dependent upon plaintiff' correction of the alleged noise and odor problem.Whether the nonrent covenants of a lease are mutually dependent upon or independent of each other is a question to be determined "by the intention and meaning of the parties, as expressed by them, and by the application of common sense to each case submitted...