Midorimatsu, Inc. v. Hui Fat Co.

• Decision Date: 03 October 2012
• Citation: 2012 N.Y. Slip Op. 06587,99 A.D.3d 680,951 N.Y.S.2d 570
• Parties: MIDORIMATSU, INC., appellant, v. HUI FAT COMPANY, respondent, et al., defendants.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 680

951 N.Y.S.2d 570

2012 N.Y. Slip Op. 06587

MIDORIMATSU, INC., appellant,

v.HUI FAT COMPANY, respondent, et al., defendants.

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

Oct. 3, 2012.

Gary L. Donoyan, Manhasset, N.Y., for appellant.

Mark Bastian, New York, N.Y., for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ.

In an action, inter alia, to recover damages for breach of an implied covenant in a lease, for a judgment declaring the rights of the parties, and injunctive relief, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), dated November 22, 2011, as granted those branches of the motion of the defendant Hui Fat Company which were pursuant to CPLR 3211(a)(1) to dismiss the first and second causes of action insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant Hui Fat Company which was pursuant to CPLR 3211(a)(1) to dismiss the second cause of action insofar as asserted against it and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, so much of the order as denied, as academic, that branch of the motion of the defendant Hui Fat Company which was pursuant to CPLR 3211(a)(7) and CPLR 3016(b) to dismiss the second cause of action insofar as asserted against it is vacated, and the matteris remitted to the Supreme Court, Queens County, for a determination on the merits of that branch of the motion of the defendant Hui Fat Company which was pursuant to CPLR 3211(a)(7) and CPLR 3016(b) to dismiss the second cause of action insofar as asserted against it.

In October 2005, the plaintiff, Midorimatsu, Inc., as tenant, and the defendant Hui Fat Company (hereinafter HFC), as landlord, entered into a 10–year lease (hereinafter the lease) for the premises at 111–14 and 111–16 Queens Boulevard, known as 111–06/20 Queens Boulevard (hereinafter the premises). According to the lease, the plaintiff was to use the premises as a Japanese/Chinese restaurant. The plaintiff intended to operate its restaurant at a capacity of about 150 persons. The plaintiff opened its restaurant in January 2006, but, beginning in September 2006, it was repeatedly cited for not having a “Public Assembly Permit,” which is required for “Place[s] of Assembly” (Administrative Code of City of N.Y. §§ 27–232, 27–525.1 et seq.). Eventually, the plaintiff commenced this action against HFC alleging two causes of action. The first cause of action alleges “breach of implied covenant to engage in structural repairs and alteration in compliance with regulations.” In substance, the plaintiff alleged that, under New York law, the owner of real property is required to bear the cost of structural changes to bring its property into compliance with legal requirements, unless the parties expressly agree that the tenant will bear those costs. The plaintiff contended that the lease did not expressly make it responsible for those costs. The second cause of action alleged fraud. The plaintiff alleged that, despite knowing that the previous tenant had been cited for not having a Place of Assembly permit, and knowing that the previous tenant had been ordered to reduce the capacity of its restaurant, HFC orally represented to the plaintiff before the lease was signed that the building was in compliance with regulations and that the plaintiff could therefore operate a restaurant at the desired capacity.

HFC filed a pre-answer motion to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a)(1) and (7) and CPLR 3016(b). The Supreme Court granted that branch of the motion which was pursuant to CPLR 3211(a)(1) and denied, as academic, the remaining branches of the motion. The plaintiff appeals.

CPLR 3211(a) provides that a defendant may move to dismiss a cause of action on the ground that “a defense is founded upon documentary evidence” (CPLR 3211[a][1] ). A CPLR 3211(a)(1) motion may be granted “only where the documentary evidence utterlyrefutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law” ( Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190;see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511;Cervini v. Zanoni, 95 A.D.3d 919, 920–921, 944 N.Y.S.2d 574;Fontanetta v. John Doe 1, 73 A.D.3d 78, 83–84, 898 N.Y.S.2d 569;Lucia v. Goldman, 68 A.D.3d 1064, 893 N.Y.S.2d 90;Elm Sea Realty Corp. v. Chicoy, 68 A.D.3d 1047, 892 N.Y.S.2d 163;Schwarz Supply Source v. Redi Bag USA, LLC, 64 A.D.3d 696, 881 N.Y.S.2d 900). Materials that clearly qualify as “documentary evidence” include “ documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are ‘essentially undeniable’ ” ( Fontanetta v. John Doe 1, 73 A.D.3d at 84–85, 898 N.Y.S.2d 569, quoting Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3211:10).

Here, the lease expressly makes the plaintiff responsible for the cost of...