Pittsford Plaza Company Lp v. Tlc West LLC

• Decision Date: 09 November 2007
• Docket Number: CA 07-00381
• Citation: 45 A.D.3d 1272,844 N.Y.S.2d 814,2007 NY Slip Op 08500
• Parties: PITTSFORD PLAZA COMPANY LP, Respondent, v. TLC WEST LLC, Appellant.
• Court: New York Supreme Court — Appellate Division

45 A.D.3d 1272

844 N.Y.S.2d 814

2007 NY Slip Op 08500

PITTSFORD PLAZA COMPANY LP, Respondent, v. TLC WEST LLC, Appellant.

CA 07-00381

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

Decided November 9, 2007.

Appeal from a judgment (denominated order) of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered January 10, 2007 in a declaratory judgment action. The judgment, among other things, denied defendant's motion for summary judgment and granted plaintiff's cross motion for, inter alia, summary judgment on the complaint.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the first, fourth and sixth decretal paragraphs, denying the cross motion and reinstating the counterclaims and as modified the judgment is affirmed without costs.

Memorandum:

Plaintiff commenced this action seeking a declaration that a proposed lease agreement with The Cheesecake Factory, a restaurant that is not a party to this action, did not violate the terms of plaintiff's lease agreement with defendant, the operator of an Applebee's Neighborhood Bar & Grill (Applebee's). The lease provides in relevant part that plaintiff is prohibited from leasing space in the Pittsford Plaza shopping center to a competing restaurant, which is defined as "a full service, sit down, family theme restaurant such as TGI Fridays, Chili's, Bennigans, Zebb's or similar concept restaurants." After answering the complaint, defendant moved for summary judgment seeking, inter alia, a declaration that Applebee's and The Cheesecake Factory are competing restaurants, and plaintiff cross-moved for, inter alia, summary judgment on the complaint, seeking a declaration that The Cheesecake Factory is not a competing restaurant within the meaning of the lease agreement. We conclude on the record before us that there is an issue of fact whether The Cheesecake Factory is a competing restaurant and thus whether plaintiff's proposed lease of space to that restaurant violated the terms of the parties' lease agreement. Supreme Court thus properly denied defendant's motion but erred in granting plaintiff's cross motion, and we therefore modify the judgment accordingly. The record contains expert affidavits submitted by plaintiff stating that the two restaurants were not in competition based upon their concepts, clientele menus, and prices. We agree with defendant that the court erred in...