Mini Mint, Inc. v. Citigroup, Inc.
| Decision Date | 31 August 2010 |
| Docket Number | No. 104944.,104944. |
| Citation | 958 N.Y.S.2d 61,28 Misc.3d 1231,2010 N.Y. Slip Op. 51565 |
| Parties | MINI MINT, INC., Plaintiff, v. CITIGROUP, INC., Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Jeffery S. Goldberg, Esq., New York, for plaintiff.
Borah Goldstein Altschuler/Ano by Myron Altschuler, New York, for defendant.
Defendant moves for discovery sanctions (mot.seq.# 001). Plaintiff has separately moved for summary judgment in its favor (mot.seq.# 002). Defendant then cross-moved for summary judgment dismissing plaintiff's third cause of action for trespass.Since the motions are partially interrelated, the court has consolidated the motions for consideration and determination in a single decision. Issue has been joined and no note of issue has been filed. The motion and cross-motion for summary judgment are, therefore, properly before the court and will be considered on their relative merits. CPLR § 3212; Brill v. City of New York, 2 NY3d 648 [2004].
The plaintiff and defendant are respectively the subleasee and subleasor under a written agreement, dated July 11, 2003. (“sublease”) for commercial space located on a portion of the first floor in the building located at 399 Park Avenue, New York, New York (“premises”). The term of the sublease expires September 29, 2022. It is subordinate to and incorporates the terms of an overlease (“lease”). Plaintiff operates a restaurant known as “Dishes” in the premises.
The parties' dispute centers around a pipe leak that occurred in or about June 2008. Sometime in July 2008, defendant fixed the leak. Defendant then sought to charge plaintiff approximately $13,000 for the cost of that repair. Plaintiff denies that it has responsibility to pay for such pipe repair under the sublease. In addition, it claims that repairs done by defendant were shoddy and, as a consequence, a bathroom in the premises has become unusable. Plaintiff also claims that in making the repairs, defendant entered into the premises without its permission. In its complaint, plaintiff has asserted three causes of action respectively for: [1] a mandatory permanent injunction requiring defendant to repair the bathroom; [2] a declaration that it is/was not obligated to repair and/or pay for the repair of the leak and that the inadequate repairs done by defendant have actually partially evicted plaintiff from the premises and [3] $500,000 in monetary damages for trespass.
Defendant interposed an answer, denying the material allegations of the complaint, asserting nine affirmative defenses and two counterclaims respectively for: [1]the cost of the leak repairs and [2] attorneys fees.
To date, there has been no preliminary conference and, despite service of both a notice and cross-notice for depositions, no discovery. On or about August 20, 2009 defendant served a Demand for a Bill of Particulars. To date, no Bill of Particulars has been served by plaintiff. After defendant made efforts to obtain the Bill of Particulars without success, in December 2009, it made a motion to either compel the Bill of Particulars and/or for more severe discovery sanctions, based upon plaintiff's non-compliance. In January 2010, plaintiff moved for summary judgment. Plaintiff argues that because it is entitled to summary judgment, the motion to compel it to respond to a Bill of Particulars is (or will become moot). Alternatively, it argues that if it is denied summary judgment, the court should direct the parties to appear for a preliminary conference to resolve the outstanding issue of the Bill of Particulars. Plaintiff argues that the Demand for a Bill of Particulars is really seeking discovery and other matter, beyond that which is permissible.
The sublease is subordinate to and incorporates the terms of lease, with Citigroup Inc. substituted for landlord and Mini Mint, Inc. substituted for tenant, at least insofar as the rights and obligations implicated in this case are invovled. The lease provides in pertinent part:
“Tenant, at its expense, shall be responsible for all repairs, maintenance and replacement of wall and floor coverings and doors in and to the Premises and for all the repair, maintenance and replacement of all horizontal portions of the systems and facilities of the Unit and Building within or exclusively serving the premises ... to the point at which they connect to the vertical portions of the Building systems, including without limitation the sanitary and electrical fixtures and equipment therein....” Section 13.01
“Landlord shall give Tenant, not less than thirty (30)(sic) days' prior notice (except in an emergency, in which case Landlord shall give such advance notice, if any, as is reasonable under the circumstances) of any work which the Landlord ....proposes to perform in or about the Unit of the Building which would result in the stoppage, interruption or reduction of services to the Premises (except for de minimus stoppages, interruptions or reductions during times other than Business hours) or otherwise reasonably be expected to have an adverse affect on Tenant's use and enjoyment of the Premises.” Section 13.04
“If Tenant shall default in the performance of any of Tenant's obligations under this lease, Landlord ....without thereby waiving such default, may (but shall not be obligated to) perform the same for the account and at the expense of Tenant (provided such expense is commercially reasonable), without notice in the case of an emergency and in any other case only if such default continues after written notice and the expiration of the applicable grace period.” Section 27.01.
The location of the leak is not really disputed, notwithstanding the parties' dispute about how the location is legally defined. There is a room that is identified as the employee's bathroom in kitchen portion of the premises. There is a floor, below which is a space, and below that is a concrete slab. In the space between the floor and the concrete slab, there is a waste pipe. There is no dispute that the waste pipe was the source of the leak. The waste pipe enters the space from a concrete wall and then proceeds in the space several feet horizontally before it turns down vertically, through the concrete slab. While defendant refers to this “turn” as a connection to the vertical waste system in the building, the photographs provided (which are not disputed) show that it is a continuous pipe that turns downward. After the pipe enters the space through a concrete wall but before it turns downward and exits the space, only fixtures located within the premises are attached to the waste pipe. Once the pipe turns downward and exits the space through the concrete slab, the parties do not dispute that the pipe serves other plumbing fixtures in building that are located below the premises.
Although plaintiff is located on the first floor, there is other occupied space below it. There is also no dispute that the leak manifested itself in the Medical Center located on the floor below plaintiff's restaurant. The parties give somewhat differing accounts of the extent of the leak, but suffice it to say the obvious, that waste pipe drainage leaking into a public location required serious attention.
It took some time and investigation for the parties to discover the source of the leak. They worked cooperatively during this investigation period. Once the source of the leak was discovered, plaintiff made it clear that it did not consider itself responsible to fix the condition. Defendant neither conceded nor refuted plaintiff's position at that time. No formal notices for access were ever sent by the defendant to the plaintiff. There were, however, numerous e-mail communications between the Tony Agazzi, employed by defendant's managing agent, and Mike Ezekail, Plaintiff's manager, which made it clear that defendant was making arrangements for its own plumbers make the necessary repairs. These e-mails also show that defendant was requesting access and plaintiff was voluntarily providing access for inspection and to “fix the leak.”
Defendant's plumber did the repairs sometime between July 17 and 21, 2008. The workers did the work after business hours. Tony Agazzi asserts that defendants had no keys to the premises and could not gain entry without plaintiff providing access to them. Plaintiff does not dispute that defendant could not gain entry to the premises without it.
DiscussionLegal Standard Applicable to Motion and Cross-motion for Summary Judgment (motion seq # 002)
A movant seeking summary judgment in its favor must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ). The evidentiary proof tendered, however, must be in admissible form (Friends of Animals v. Assoc. Fur Manufacturers, 46 N.Y.2d 1065 [1979] ). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] );Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ). In this case, each party bears the initial burden on their relative motion and cross-motion for summary judgment. Where the issues raised concern only issues of law, such as contract interpretation, the court can and should resolve them on a dispositive motion. ( American Express Bank Ltd. v. Uniroyal, Inc. 154 A.D.2d...
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