KRU, Inc. v. 1000 Massapequa, Inc.

• Decision Date: 07 April 1997
• Docket Number: No. 96-06645,96-06645
• Citation: KRU, Inc. v. 1000 Massapequa, Inc., 656 N.Y.S.2d 47, 238 A.D.2d 314 (N.Y. App. Div. 1997)
• Parties: KRU, INC., Doing Business as Kids "R" Us, respondent, v. 1000 MASSAPEQUA, INC., et al., appellants.
• Court: New York Supreme Court — Appellate Division

Page 47

656 N.Y.S.2d 47

238 A.D.2d 314

KRU, INC., Doing Business as Kids "R" Us, respondent, v. 1000 MASSAPEQUA, INC., et al., appellants.

No. 96-06645.

Supreme Court, Appellate Division,

Second Department.

April 7, 1997.

Carl A. Binder, New York City, for appellants.

Riesman Peirez Reisman & Calica, Garden City (Robert M. Calica and Edward M. Ross, of counsel), for respondent.

Before BRACKEN, J.P., and FRIEDMANN, FLORIO and McGINITY, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for a judgment declaring that the plaintiff is entitled (1) to an abatement of all rents already paid to the defendants under a lease, and (2) to withhold payments of all future rents until the defendants comply with provisions of the lease which provide that the plaintiff would have access to a loading dock located at the rear of the leased premises, the defendants appeal from an order of the Supreme Court, Nassau County (Schmidt, J.), dated June 19, 1996, which denied their motion, inter alia, for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by adding thereto a provision searching the record and awarding partial summary judgment to the plaintiff on the issue of partial constructive eviction; as so modified, the order is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

The defendants Bob Roberts and Lucille Roberts are the fee owners of a parcel of property located in Massapequa. They leased the premises to the defendant 1000 Massapequa, Inc., which, in turn, subleased the premises under a "Shopping Center Master Agreement of Lease" (hereinafter the sublease), dated November 1, 1989, to Toys "R" Us--Nytex, Inc. (hereinafter Nytex). The plaintiff KRU, Inc., d/b/a Kids "R" Us, is the sublessee of Nytex. The sublease required the plaintiff, inter alia, to accept all deliveries at the loading dock located at the rear of the premises. Since the service road, which crossed over land owned by the adjoining landowner, was the only access to the loading dock at the rear of the premises, the plaintiff's delivery trucks utilized the service road for access to the loading dock, where the merchandise was loaded and unloaded. However, when the adjoining landowner constructed a steel chain link fence on the property line, the plaintiff no longer had access to the loading dock. As a result, the plaintiff brought this action in which it alleged, among other things, that it had been constructively evicted from a portion of the property, that the defendants were in breach of the sublease, and that no money was owed to the defendants until the problem of access to the rear loading dock was resolved. On appeal, the defendants challenge the court's denial of their motion for summary judgment dismissing the complaint, and for summary judgment on their counterclaims for, among other relief, the full amount of the rent and maintenance charges.

The defendants contend that, since the plaintiff failed to include a...