N.Y. Tile Wholesale Corp. v. Thomas Fatato Realty Corp.

• Decision Date: 04 May 2022
• Docket Number: Index 49320/01,2019-00847,515280/18
• Citation: 2022 NY Slip Op 03000
• Parties: New York Tile Wholesale Corp., Appellant, v. Thomas Fatato Realty Corp., et al., Respondents (and another action).
• Court: New York Supreme Court — Appellate Division

2022 NY Slip Op 03000

New York Tile Wholesale Corp., Appellant, v. Thomas Fatato Realty Corp., et al., Respondents (and another action).

Index Nos. 49320/01, 515280/18

Supreme Court of New York, Second Department

May 4, 2022

Feder Kaszovitz, LLP, New York, NY (Murray L. Skala and Bruce Robins of counsel), for appellant.

Harris Beach, PLLC, White Plains, NY (Darius P. Chafizadeh and Allison B. Fiut of counsel), for respondents.

VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of a lease and for specific performance of a provision of the lease, and a related action, among other things, to recover damages for a violation of Judiciary Law § 487, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Loren Baily-Schiffman, J.), dated December 6, 2018, and (2) an order of the same court dated July 23, 2019. The order dated December 6, 2018, insofar as appealed from, sua sponte modified a preliminary injunction to permit short-term leasing of the subject property. The order dated July 23 2019, denied the plaintiff's motion, in effect, to vacate so much of the order dated December 6, 2018, as, sua sponte modified the preliminary injunction to permit short-term leasing of the subject property.

ORDERED that the appeal from the order dated December 6, 2018, is dismissed, as no appeal lies as of right from a portion of an order that does not decide a motion made on notice (see CPLR 5701[a]), and leave to appeal has not been granted; and it is further, ORDERED that the order dated July 23, 2019, is reversed, on the law, the plaintiff's motion, in effect, to vacate so much of the order dated December 6, 2018, as, sua sponte, modified the preliminary injunction is granted, and that portion of the order dated December 6, 2018, is vacated; and it is further, ORDERED that one bill of costs is awarded to the plaintiff.

In 1986, the plaintiff, as tenant, entered into an agreement with the defendant Thomas Fatato Realty Corp. (hereinafter Fatato) to lease a portion of certain commercial property in Brooklyn then owned by Fatato. The lease gave the plaintiff a right of first refusal to purchase the property in the event that Fatato offered it for sale. In October 2000, Fatato transferred title to the property to the defendant Garden Estates, LLC (hereinafter Garden).

In 2001, the plaintiff commenced an action against Fatato and Garden, inter alia, for specific performance of the lease provision giving the plaintiff the right of first refusal to purchase the property. By order dated May 7, 2002, the Supreme Court, among other things, granted the plaintiff's cross motion for a preliminary injunction and enjoined the defendants, during the pendency of the action, from, inter alia, interfering with the subject property or the plaintiff's tenancy and its use and occupancy of the property. By amended order dated June 10, 2011, the preliminary injunction was modified to permit the defendants to "lease all or a portion of the subject real property for a term not extending beyond February 28, 2012."

In about September 2016, the plaintiff moved, among other things, pursuant to Judiciary Law §...