Morris v. 702 East Fifth Street Hdfc

• Decision Date: 03 June 2004
• Docket Number: 3578N.
• Citation: 778 N.Y.S.2d 20,2004 NY Slip Op 04420,8 A.D.3d 27
• Parties: BRUCE MORRIS, Appellant, v. 702 EAST FIFTH STREET HDFC, Respondent.
• Court: New York Supreme Court — Appellate Division

8 A.D.3d 27

778 N.Y.S.2d 20

2004 NY Slip Op 04420

BRUCE MORRIS, Appellant, v. 702 EAST FIFTH STREET HDFC, Respondent.

3578N.

Appellate Division of the Supreme Court of the State of New York, First Department.

June 3, 2004.

Order, Supreme Court, New York County (Edward H. Lehner,

J.), entered November 13, 2002, which denied plaintiff's motion to restore his case to the calendar and proceed to trial on his claim that his former subtenant was constructively evicted, to dissolve the preliminary injunction issued February 22, 1996, and to absolve plaintiff of the sound test requirement of the stipulation, unanimously reversed, on the law, without costs, the matter restored to the trial calendar, the trial court directed to order a sound test within a reasonable period of time, and the restrictions in the preliminary injunction on the use of musical instruments removed.

This action was precipitated in 1995 by defendant landlord's service upon plaintiff commercial tenant of a notice to cure and a notice of termination as a result of plaintiff's renovation of the leased storefront premises for the purpose of opening a coffee house/performance space, allegedly in violation of his lease. Plaintiff obtained a Yellowstone injunction staying termination of the lease and shortly thereafter commenced this action, seeking damages for loss of a subtenant due to defendant's failure to repair leaks at the premises. In March 1996, the court issued a preliminary injunction, which enjoined plaintiff from operating an unlicensed business in the building and restricted any performance of live music to string instruments and piano and to the hours of 4:00-9:00 p.m. on Fridays, Saturdays and Sundays.

In March 2000, the parties entered into a stipulation and order of partial settlement (the stipulation) which the court so ordered. The stipulation allowed plaintiff to open his coffee house/performance space after installing plumbing and soundproofing. Upon completion of the soundproofing work, plaintiff was to be given access to residential apartments in the building in order to conduct a sound test by which the experts of both parties would determine appropriate sound levels. Plaintiff's expert would then see to any additional work needed to make the soundproofing adequate, after which he would forward to defendant a certificate of completion. Upon receipt of such written notice, defendant would consent to and would move with plaintiff to modify the preliminary injunction to permit performances seven days a week. In the event further adjustments in the soundproofing were deemed necessary, the parties agreed to a procedure whereby plaintiff could continue to conduct his business subject to his compliance with defendant's board of directors' determination that further soundproofing was needed. During the two so-called "trial periods," the modified preliminary injunction would be held in abeyance and would only be in effect in the interim between a negative board determination and the next trial period. At such time that defendant's board found the soundproofing to be adequate, the preliminary injunction would be held in abeyance until it was withdrawn...