Pema Enters. v. New Ninth Ave. Corp.
| Docket Number | Index No. 651538/2021,Motion Seq. No. 002 |
| Decision Date | 19 July 2023 |
| Citation | 2023 NY Slip Op 32586 (U) |
| Parties | PEMA ENTERPRISES INC., Plaintiff, v. NEW NINTH AVENUE CORP., Defendant. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 002) 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 36, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63 were read on this motion to/for _INJUNCTION/RESTRAINING ORDER.
The underlying facts of this case are set forth in detail in the decision and order of this court dated July 18, 2023 resolving Mot. Seq. 001. Defendant now moves, by order to show cause, for an order "[e]njoining the operation of any business or construction activity at 857 Ninth Avenue, South Store and Basement, New York, New York 10019 ('premises') pending completion of herein described remediation", including installing a ramp to access the premises; expand tread to riser ratio for all steps in the front stoop to 7" riser and 11" tread; put lintel over the hole in the wall in the cellar, close the hole, and weatherproof the hole/wall; cure recurring grease trap overflow; reconstruct wall in the tank room using concrete block (NYSCEF Doc. No. 39, order to show cause).
Defendant contends that tenant's actions have created unsafe conditions affecting the health and safety of building residents and anyone on the premises and that its actions are motivated by a desire to ensure tenant adheres to state and local laws. Specifically, defendant relies on the affidavit of Robert Strong ("Strong"), a licensed architect, who was hired by defendant to review plans submitted by plaintiff in connection with a build-out of the premises. Strong visited the premises on December 28, 2021, and attests that, based on his inspection, plaintiff has not complied with the stipulation of settlement and some of the work that was performed at the premises was not consistent with the plans. He prepared a report detailing his findings (NYSCEF Doc. No. 34, January 5, 2022, report). Strong's January 5, 2022, report was forwarded to plaintiff, who submitted responses. Strong prepared another report to address plaintiffs comments, as memorialized in a report dated January 18, 2022. (NYSCEF Doc. No. 35, January 18, 2022, report). A final report was prepared in February 2022 (NYSCEF Doc. No. 36, February 8, 2022, report).
Rona Lane, defendant's board president, affirms that plaintiff has failed to comply with the settlement agreement insofar as work that was being done in the premises is contrary to the terms of the settlement agreement and, some of the work has not been consented to by the landlord. Referencing the affidavit of Strong, Lane affirms that tenant has performed extensive work outside the scope of work approved by the Board, including storefront alteration, without Board approval; bathroom gutting and renovation, without Board approval; removal of a portion of a load-bearing basement wall, without Board approval; and removal of an oil tank with torch without appropriate permits and without Board approval, which resulted in smoke throughout the building at a level that necessitated response from the Fire Department (FDNY) and the Department of Buildings (DOB). Lane attests that plaintiff has also engaged in "objectionable conduct", which include "disrespect of residents and building policies" and "still water and hanging cords, affecting overall building safety." According to Lane, a violation was placed on the premises for work done without a permit. The violation was for the removal of a beam of a loadbearing wall (NYSCEF Doc. No. 30, DOB violation). Lane also avers that there is a leak from a grease trap that is causing continuing flow of grease onto the floor of the basement, which is accumulating and creating a hazard. Pursuant to the settlement, tenant was to remove violations that had been placed on the premises in the past, yet plaintiff has failed to remove them.
In opposition to the motion, plaintiff argues that defendant has failed to establish its entitlement to injunctive relief. First, plaintiff argues that the motion is jurisdictionally defective because defendant has not interposed an answer or counterclaim in this matter. Furthermore, it maintains that this application, filed prior to serving a notice to cure, is in contravention to the terms of the stipulation which requires that, upon a default under the stipulation, a seven (7) day notice to cure must be served upon the defaulting party to cure the breach. Plaintiff also notes that defendant annexes the wrong lease to its moving papers. It also contends that failure to implead its subtenant to this action as defendant seeks to restrain/enjoin activities which could negatively affect the subtenant's bakery business from operating at the premises, is an additional ground for denial of the application (NYSCEF Doc. No. 42, affirmation in opposition).
Emanuel Kaliontzakis, president of plaintiff, affirms that plaintiff has either completed the work, has been working to complete the work, or such work is not required as demonstrated by documentary evidence submitted in opposition to the motion. Addressing the ramp, plaintiff argues that Strong's January 2022 reports are silent as to the installation of a ramp for handicap access to the premises and are completely silent as to this alleged "urgent remediation" issue. This was not raised by Strong as an issue until February 2022, after the filing of Mot. Seq. 002. Nevertheless, plaintiff represents that, for the past thirteen (13) years, there has been a temporary handicapped accessible ramp at the premises; proper wheelchair accessible signage in accordance with § 1110 of the New York City Building Code and § 313 of the New York City Administrative Code; as well as, installation of a bell (NYSCEF Doc. Nos. 41 ¶13; 43, photo of ramp', 44, ...
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