Linden Boulevard, L.P. v. Elota Realty Co.
| Decision Date | 13 September 1993 |
| Citation | 196 A.D.2d 808,601 N.Y.S.2d 949 |
| Parties | LINDEN BOULEVARD, L.P., Respondent-Appellant, v. ELOTA REALTY COMPANY, etc., et al., Appellants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Reisman, Peirez, Reisman & Calica, Garden City (Robert M. Calica, E. Christopher Murray, and Richard S. Kanowitz, of counsel), for appellants-respondents.
Epstein Becker & Green, P.C., New York City (Samuel Goldman and Philip Weis, of counsel), for respondent-appellant.
Before MANGANO, P.J., and ROSENBLATT, O'BRIEN and COPERTINO, JJ.
MEMORANDUM BY THE COURT.
In consolidated actions, inter alia, to enforce an option for "first refusal" under a lease and to recover damages for the costs associated with certain repairs to the premises, and a consolidated proceeding for summary eviction of the plaintiff from the premises and to recover possession of the premises, (1) the defendants Elota Realty Company and Nathan L. Serota appeal (a) from so much of an order and judgment (one paper) of the Supreme Court, Kings County (Krausman, J.), dated March 24, 1993, as awarded the plaintiff damages in the principal sum of $683,350 and dismissed the defendants' petition for summary eviction of the plaintiff from the premises and to recover possession of the premises, and (b) from a judgment of the same court entered April 28, 1993, which is in favor of the plaintiff in the principal sum of $193,232, and (2) the plaintiff cross-appeals from so much of the order and judgment (one paper) dated March 24, 1993, as dismissed the remaining causes of action, inter alia to recover damages for the cost of certain repairs and for enforcement of the lease option.
ORDERED that the order and judgment dated March 24, 1993, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements; and it is further,
ORDERED that the judgment entered April 28, 1993, is affirmed, without costs or disbursements.
In 1962, the defendant Elota Realty Company (hereinafter Elota Realty) entered into a long-term lease of its commercial property in Brooklyn with Times Square Stores Corporation (hereinafter TSS), which operated a store on the premises. In April 1990, after filing for bankruptcy, TSS sold the lease to the plaintiff Linden Boulevard L.P. (hereinafter Linden), which planned to renovate the premises to permit operation of a flea market and other retail stores. Later that same month, Elota Realty sold the premises to one of its general partners, the defendant Nathan Serota. A dispute arose over which party was responsible for certain repairs to the building, including the air conditioning system and the roof, and for the removal of friable asbestos which was present in the fireproofing material on structural steel beams. Ultimately, Linden paid for the repairs and asbestos removal, and then commenced an action against the defendants for a determination as to the parties' responsibility for this work and to recover damages for the costs of these repairs. In addition, Linden commenced a second action against the defendants, inter alia, for a judgment directing conveyance of the title to the property to it on the ground that the sale of the property to Serota violated its right of first refusal under the lease. In August 1992, while these actions were pending, Serota served a notice on Linden terminating its tenancy due to its failure to pay rent in July and August 1992 and subsequently commenced a summary holdover proceeding in Civil Court to recover possession of the premises based on Linden's nonpayment of the rent. The Supreme Court consolidated Linden's actions and the summary proceeding and directed Linden to pay rent while the consolidated action and proceeding was pending, commencing with the rent due in October 1992. Following a nonjury trial, the court dismissed Linden's cause of action seeking title to the property. With respect to the causes of action to recover damages for the costs of certain repairs, the court determined that Linden was entitled to damages of $683,350 for the cost of certain repairs and for asbestos removal, and that Serota was entitled to an offset for three months rent arrears and taxes. The net result was a judgment in Linden's favor for the principal sum of $193,232. The court dismissed Serota's holdover petition seeking possession of the premises on equitable grounds.
We find that Linden's cause of action seeking conveyance of the title to the premises was properly dismissed. The Supreme Court properly...
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