Waterfalls Italian Cuisine, Inc. v. Tamarin

• Decision Date: 16 July 2014
• Citation: Waterfalls Italian Cuisine, Inc. v. Tamarin, 2014 NY Slip Op 5323, 119 A.D.3d 773, 990 N.Y.S.2d 536 (N.Y. App. Div. 2014)
• Parties: WATERFALLS ITALIAN CUISINE, INC., et al., appellants, v. Robert P. TAMARIN, et al., defendants, Venetian Circle, LLC, respondent.
• Court: New York Supreme Court — Appellate Division

119 A.D.3d 773

990 N.Y.S.2d 536

2014 N.Y. Slip Op. 05323

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

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

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

July 16, 2014.

The S.A. Jackson Law Firm, P.C., New York, N.Y. (Stuart A. Jackson of counsel), for appellants.

Menicucci Villa & Associates, PLLC, Staten Island, N.Y. (Marc Jonas Block of counsel), for respondent.

MARK C. DILLON, J.P., and CHERYL E. CHAMBERS, L. PRISCILLA HALL, and JOSEPH J. MALTESE, JJ.

In an action, inter alia, for a judgment declaring that the plaintiffs are entitled to continued possession of certain leased premises, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Minardo, J.), dated March 22, 2013, as granted that branch of the cross motion of the defendant Venetian Circle, LLC, which was pursuant to CPLR 3211(a)(1) to dismiss 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 cross motion of the defendant Venetian Circle, LLC, which was pursuant to CPLR 3211(a)(1) to dismiss 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, as tenant, 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 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). In October 2012, Victory executed a deed transferring title of the subject premises to the defendant Venetian Circle, LLC (hereinafter Venetian).

In November 2012, the plaintiffs commenced this action, inter alia, for a judgment declaring that they are entitled to continued possession of the subject premises. The plaintiffs alleged, among other things, 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. Thereafter, the plaintiffs moved to preliminarily enjoin the defendants from taking any steps to terminate their occupancy of the premises during the pendency of the action. Venetian cross-moved, inter alia, pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it based on documentary evidence. In an order dated March 22, 2013, the Supreme Court, among other things, granted that branch of Venetian's cross motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it, and the plaintiffs appeal from that portion of the order.

“A motion to dismiss based on documentary evidence may be granted only where such documentary evidence utterly refutes the plaintiff's factual allegations, resolves all factual issues as a matter of law, and conclusively disposes of the claims at issue” ( Yue Fung USA Enters., Inc. v. Novelty Crystal Corp., 105 A.D.3d 840, 841, 963 N.Y.S.2d 678 [citations omitted] ). Although the documentary...