Waterfalls Italian Cuisine, Inc. v. Tamarin

• Decision Date: 26 April 2017
• Citation: Waterfalls Italian Cuisine, Inc. v. Tamarin, 149 A.D.3d 1141, 53 N.Y.S.3d 347 (N.Y. App. Div. 2017)
• Parties: WATERFALLS ITALIAN CUISINE, INC., et al., appellants, v. Robert P. TAMARIN, etc., et al., defendants, Venetian Circle, LLC, respondent (and a third-party action).
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 1141

53 N.Y.S.3d 347

WATERFALLS ITALIAN CUISINE, INC., et al., appellants,

v.Robert P. TAMARIN, etc., et al., defendants,Venetian Circle, LLC, respondent

(and a third-party action).

Supreme Court, Appellate Division, Second Department, New York.

April 26, 2017.

The S.A. Jackson Law Firm P.C., Garden City, NY (Stuart A. Jackson and Edward Pavia of counsel), for appellants.

Menicucci Villa Cilmi, PLLC, Staten Island, NY (Jeremy Panzella of counsel), for respondent.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LaSALLE, and VALERIE BRATHWAITE NELSON, JJ.

Appeal from an order of the Supreme Court, Richmond County (Philip G. Minardo, J.), dated January 5, 2016. The order, insofar as appealed from, in effect, granted that branch of the motion of the defendant Venetian Circle, LLC, which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Venetian Circle, LLC, which was for summary judgment dismissing the complaint insofar as asserted against it is denied.

In July 2002, the plaintiff Waterfalls Italian Cuisine, Inc. (hereinafter Waterfalls), by its president, the plaintiff Dennis Zollo, Sr., entered into a 10–year commercial lease pursuant to which Waterfalls leased certain premises owned by the defendants Robert P. Tamarin (hereinafter Tamarin), Lloyd B. Tamarin, Grace Golad, and Steven Lasher to operate a restaurant. The lease provided that Waterfalls had the option to renew the term of the lease for an additional 10 years by written notification. In April 2011, Tamarin, among others, executed a deed transferring title of the subject premises to nonparty 2008 Victory Boulevard, LLC (hereinafter Victory), and in October 2012, Victory executed a deed transferring title of the premises to the defendant Venetian Circle, LLC (hereinafter Venetian). In October 2012, Venetian sent a notice to Waterfalls of its intention to terminate the lease.

In November 2012, the plaintiffs commenced this action, seeking, among other things, a judgment declaring that they are entitled to continued possession of the subject premises. The plaintiffs alleged that Zollo had advised Tamarin, who acted as the plaintiffs' agent, of the plaintiffs' intent to exercise the option to renew the lease, and that Tamarin provided assurance that the lease term would be renewed, although no exercise of the option was made in writing. In its answer, Venetian asserted several counterclaims, including one which sought a judgment declaring, among other things, that the lease had expired and had not been renewed in writing as required by the lease.

The plaintiffs moved for preliminary injunctive relief, and Venetian cross-moved, among other things, pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted it. In an order dated March 22, 2013, the Supreme Court, inter alia, granted that branch of Venetian's cross motion. On appeal, this Court reversed the order dated March 22, 2013, and determined that the documentary evidence submitted in support of Venetian's cross motion failed to conclusively establish that the plaintiffs were not entitled to equitable renewal of the lease (see Waterfalls Italian Cuisine, Inc. v. Tamarin, 119 A.D.3d 773, 990 N.Y.S.2d 536 ).

In October 2015, Venetian moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it and in its favor on its counterclaims. In an order dated January 5, 2016, the Supreme Court, among other things, granted that branch of Venetian's motion which was for summary judgment on its counterclaims to the extent of directing that Venetian was entitled to a judgment declaring that the lease had expired and had not been renewed in writing as required by the lease. In addition, the court determined that the remedy of equitable renewal was not available to the plaintiffs. Accordingly, the court, in...