Splash, LLC v. Shullman Family Ltd. P'ship

• Court: New York Supreme Court
• Writing for the Court: LAWRENCE H. ECKER, J.
• Citation: Splash, LLC v. Shullman Family Ltd. P'ship, 51 N.Y.S.3d 852, 56 Misc.3d 556 (N.Y. Sup. Ct. 2017)
• Decision Date: 20 April 2017
• Parties: SPLASH, LLC, Splash Management Group, LLC, Splash Bedford Hills, LLC, Mark Curtis and Christopher Fisher, Plaintiffs, v. SHULLMAN FAMILY LIMITED PARTNERSHIP, Robert Shullman, Michael Shullman and Russell Speeders Car Wash, LLC, Defendants.

56 Misc.3d 556

51 N.Y.S.3d 852

SPLASH, LLC, Splash Management Group, LLC, Splash Bedford Hills, LLC, Mark Curtis and Christopher Fisher, Plaintiffs,

v.SHULLMAN FAMILY LIMITED PARTNERSHIP, Robert Shullman, Michael Shullman and Russell Speeders Car Wash, LLC, Defendants.

Supreme Court, Westchester County, New York.

April 20, 2017.

George J. Calcagnini, Attorneys for Plaintiffs.

Finger & Finger, A Professional Corporation, Attorneys for Defendants Shullman Family Limited Partnership, Robert Shullman and Michael Shullman.

Litchfield Cavo LLP, Attorneys for Defendant Russell Speeder's Car Wash, LLC.

LAWRENCE H. ECKER, J.

The court determines as follows:

The factual background of this case has been fully set forth in the prior orders of the court (Connolly, J.), dated, October 8, 2013, 41 Misc.3d 1217(A), 2013 WL 5749231, and (Lefkowitz, J.), dated January 6, 2014. SFLP is the owner and was formerly the landlord to plaintiffs of the premises located at 527 North Bedford Road, Bedford Hills, New York. Plaintiffs are affiliated limited liability companies and their principal members who formerly operated a car wash at the premises. During the final extension on their lease that was due to expire on April 30, 2013, and after both parties knew the lease would not be renewed, plaintiffs signed a lease in 2010 for new premises at 562–570 North Bedford Road to move their car wash business to that location, a short distance from the original premises. The new lease was made contingent upon plaintiffs obtaining the required variances, permits, and approvals from the Town of Bedford Zoning Board of Appeals and Planning Board to allow the plaintiffs to construct and operate a car wash at the new location. Plaintiffs sought and eventually obtained the required municipal approvals to develop the property.

Plaintiffs commenced the instant action against defendants on April 30, 2013, the same day as the lease at 527 North Bedford Road was due to expire. Plaintiffs allege causes of action for tortious interference with business relations, breach of implied covenant of good faith, intentional property damage, negligent property damage and failure to return security deposit. Specifically, plaintiffs allege the municipal hearing and approval process was delayed as a result of the defendants' actions in secretly soliciting Dino DeFeo and Greg DiNapoli, two local residents objecting to plaintiff's application before the Town of Bedford Zoning Board of Appeals ("ZBA") and Planning Board. Plaintiffs allege defendants did so in an effort to cause the plaintiffs economic harm by preventing them from relocating their car wash business. Plaintiffs allege that the defendants acted in bad faith and with actual malice by secretly retaining a land use attorney and various experts, including traffic and noise experts, to have DeFeo and DiNapoli oppose the plaintiffs' applications and file legal proceedings to stop or delay the plaintiffs from establishing their car wash at the new location. The plaintiffs further allege that the defendants instructed the land use attorney and the experts to fraudulently misrepresent to the officials of the Town of Bedford that they had been hired and retained by DeFeo and DiNapoli, when they were, in fact selected, hired, retained, and paid by the defendants.

Plaintiffs further claim that as the result of the defendants' bad faith actions in opposing, obstructing, and delaying the approval process, plaintiffs failed to receive the necessary variances, special use permits, and site plan approval with sufficient time to build their car wash at the new location and re-establish their business before their lease expired on April 30, 2013, which forced them to hold over in the former leased premises with defendants. Plaintiffs allege defendants acted with actual malice and with the intent to cause the plaintiffs economic harm in that the defendants planned to open their own car wash business at the existing location and misappropriate the plaintiffs' customers and business to themselves.

Plaintiffs also assert causes of action for intentional and negligent property damage, claiming that they sustained property damage when the defendants' agents or employees intentionally, carelessly, or negligently punctured the waterproof materials on the roof of the premises while performing a site inspection in March 2013, which caused extensive quantities of water to leak into the premises. They also seek the return of their original security deposit with interest.

After the Town of Bedford ("Town") approved plaintiffs' land use applications for the new business location, nonparty Dino DeFeo commenced an Article 78 proceeding against Bedford and certain of the plaintiffs to annul the Town's determination. (DeFeo v. Zoning Board of Appeals, Town of Bedford, Index No. 1178/2013). By Decision and Order, dated October 4, 2013, this Court (Zambelli, J.) denied so much of DeFeo's Article 78 petition as sought to annul the Planning Board's "negative declaration" under the State Environmental Quality Review Act (SEQRA), but annulled the Town's determination to grant use variances, holding the Zoning Board of Appeals had granted them without rational basis. The court also vacated as moot the area variances, special use permits and site plan. Both sides appealed. On March 23, 2016, the judgment was affirmed by the Appellate Division, Second Department [137 A.D.3d 1123, 28 N.Y.S.3d 111].

After plaintiffs held over in their tenancy at the former premises following the lease expiration on April 30, 2013, a summary eviction proceeding ensued. The Bedford Town Court (Jacobson, J.) granted the eviction petition and plaintiffs vacated the premises by the stayed eviction date of September 30, 2013. They subsequently took occupancy and possession of the leased premises at 562–570 North Bedford Road where they operate a car wash.

Now pending before the court are two defense motions:

Mot. Seq. 11: The motion of defendant Russell Speeder's Car Wash, LLC ("Speeder"), made pursuant to CPLR 3212, for summary judgment dismissing the complaint on the basis that Russell Speeder's Management Company LLC has been improperly sued as Russell Speeder's Car Wash, LLC. and seeking the imposition of sanctions, including attorney's fees, against plaintiff.

Mot. Seq. 12: The motion of defendants Shullman Family Limited Partnership, Robert Shullman and Michael Shullman ("SFLP"), made pursuant to CPLR 3212, for summary judgment dismissing the complaint on the lack of merit of all the causes of action, and that no triable issues of fact exist that would warrant a trial.

Discussion

Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it should be granted only where the moving party "has tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact" Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974]. To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented. Issue finding, rather than issue determination, is the key to the procedure. Matter of Suffolk Co. Dept. of Social Services v. James M., 83 N.Y.2d 178, 608 N.Y.S.2d 940, 630 N.E.2d 636 [1994] ; Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957]. In making this determination, the court must view the evidence in the light most favorable to the party opposing the motion, and must give that party the benefit of every inference which can be drawn from the evidence. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 475, 982 N.Y.S.2d 813, 5 N.E.3d 976 [2013] ; Nash v. Port Washington Union Free School District, 83 A.D.3d 136, 146, 922 N.Y.S.2d 408 [2d Dept.2011] ; Pearson v. Dix McBride, LLC, 63 A.D.3d 895, 883 N.Y.S.2d 53 [2d Dept.2009]. Every available inference must be drawn in the [non-moving] party's favor. De Lourdes Torres v. Jones, 26 N.Y.3d 742, 763, 27 N.Y.S.3d 468, 47 N.E.3d 747 [2016].

It is not the court's function on a motion for summary judgment to assess credibility. Chimbo v. Bolivar, 142 A.D.3d 944, 37 N.Y.S.3d 339 [2d Dept.2016] ; Garcia v. Stewart, 120 A.D.3d 1298, 1299, 993 N.Y.S.2d 90 [2d Dept.2014], or to engage in the weighing of evidence. Scott v. Long Is. Power Auth., 294 A.D.2d 348, 741 N.Y.S.2d 708 [2d Dept.2002]. Thus a motion for summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" Ruiz v. Griffin, 71 A.D.3d 1112, 1115, 898 N.Y.S.2d 590 [2d Dept.2010].

The moving party is entitled to summary judgment only if it tenders evidence sufficient to eliminate all material issues of fact from the case. Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]. Failure to make such prima facie "showing requires denial of the motion, regardless of the sufficiency of the opposing papers." Pullman v. Silverman, 28 N.Y.3d 1060, 43 N.Y.S.3d 793, 66 N.E.3d 663 [2016] ; Winegrad v. New York University Medical Center, supra. Put another way, in order to obtain summary judgment, there must be no triable issue of fact presented ... even the color of a triable issue of fact forecloses the remedy. In re Cuttitto Family Trust, 10 A.D.3d 656, 781 N.Y.S.2d 696 [2d Dept.2004], quoting LNL Constr. v. MTF Indus., 190 A.D.2d 714, 715, 593 N.Y.S.2d 536 [2d Dept.1993]. If a party makes a prima facie showing of its entitlement to summary judgment, the opposing party bears the burden of establishing the existence of a triable issue of fact. Zuckerman, v. City of New York, supra; Alvarez v. Prospect Hosp., supra.

Motion Seq. 11

Speeder initially urges that Russell Speeder's Management...