Opinion
Index No. 504641/2018 Motion Seq. No. 8
03-19-2024
COMFORT LIVING FURNITURE INC., Plaintiff, v. MCDONALD DESIGN FURNITURE INC. and 1571 HOLDING LLC, Defendant, 1571 HOLDING LLC, Third-Party Plaintiff, v. RYBAK DEVELOPMENT AND CONSTRUCTION CORP., Third-Party Defendant,
Unpublished Opinion
PRESENT: HON.. LEON RUCHELSMAN, Judge
DECISION AND ORDER
HON.. LEON RUCHELSMAN, J.S.C.
The defendant/third party plaintiff 1571 Holdings LLC has moved pursuant to CPLR §3212 seeking summary judgement dismissing the first cause of action of the amended complaint and to strike the jury demand. The plaintiff has opposed the motion. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination.
Background
As recorded in prior orders in July 2001, Matthew Ferrigno and Victoria Ferrigno leased their property located at 1571 McDonald Avenue, Brooklyn, NY to the defendant McDonald Design Furniture for a duration of 100. years. Located on this property was a building ("the Store") and an adjacent large open area ("Lot"). Th September 2011, defendant subleased the first floor of the store to Comfort Living Furniture for a duration of 10 years. Subsequently, in October 2012, defendant subleased the basement of the store to the plaintiff for a duration of 9 years. Prior to the defendant commencing excavating the lot, the defendant created a holding company called 1571 Holding LLC- In January 2018, a permit to excavate property was issued to 1571 Holding LLC. After excavation work commenced, plaintiff claims that due to negligence on behalf of the construction crew, the store experienced severe flooding which destroyed a significant portion of plaintiff's inventory, forced the plaintiff to close the store for a period of time, and forced the plaintiff to expend a significant amount of time and money in order to clean up the flooded area and to replace the destroyed merchandise. A lawsuit was commenced seeking damages for those losses sustained. The plaintiff has alleged two causes of action, namely breach of contract and negligence. The defendant 1571 Holding LLC has now moved seeking summary judgement regarding the breach of contract cause of action. The defendant argues that the breach of contract cause of action is based upon language in the lease that covenants peaceful and quiet enjoyment of the property upon the proper payment of rent. The defendant further argues that cause of action requires the tenant to demonstrate an eviction of the premises which never occurred. Furthermore, the defendant asserts the plaintiff did not pay rent and therefore the condition precedent triggering the covenant of quiet enjoyment never occurred. As noted the motion is opposed.
Conclusions of Law
Where the material facts at issue in a case are in dispute summary judgment Cannot be granted (Zuckerman v. City of New York, 49 N.Y.S.2d 557, 427 N.Y.S.2d 595 [1980]). Generally, it is for the jury, the trier of fact to determine the legal cause of any injury (Aronson v. Horace Mann-Barnard School, 224 A.D.2d 249, 637 N.Y.S.2d 410 [1st Dept., 1996]). However, where only one conclusion may be drawn from the facts then the question of Legal cause may be decided by the trial court as a matter of law (Perdiarian v. Felix Contracting Inc., 51 N.Y.2d 308, 434 N.Y.S.2d 166 [1980]).
The covenant of quiet enjoyment only applies if all conditions precedent have been satisfied and there has been no waiver of those conditions (TPS Leasing LLC v. Tradito, 148 A.D.3d 1079, 51 N.Y.S.3d 96 [2d Dept., 2017]). In Dance Magic Inc., v. Pike Realty Inc., 85 A.D.3d 1083, 926 A.D.2d 588 [2d Dept., 2011]) a tenant sought a claim for a breach of the covenant of quiet enjoyment following flooding in the premises. The court explained that "by the express terms of the lease, the plaintiffs were requited to pay rent while remaining in possession of the subject premises as a condition precedent to receiving the benefit of quiet enjoyment of the premises...The plaintiffs paid rent for the subject premises through November 2007, but they failed to pay rent while retaining possession of the subject premises for a portion of December 2007. Since they remained in possession of the subject premises: while not paying rent, the plaintiffs failed to satisfy the condition precedent in their lease, and are thereby precluded from claiming a breach of the covenant of quiet enjoyment" (id) . Indeed, the failure to pay rent can only be deemed an election of remedies and consequently has no claim for a breach of the covenant of quiet enjoyment (Schwartz v. Hotel Carlyle Owner's Corp., 132 AD 3 d 541, 20 N.Y.S.3d 341 [1st Dept., 2015]). The plaintiff argues that they only Stopped paying rent when the flooding occurred and they were partially evicted thereby. However, that excuse does hot permit the tenant to not pay rent and still pursue claims of the breach of quiet enjoyment (see, 1590 Lexington LLC v. 1590 Corp., 53 Mi sc3d 155(A), 50 N.Y.S.3d 27 [Supreme Court, Appellate Term 2016]). Therefore, since the tenant chose not to pay rent the tenant cannot pursue a claim for quiet enjoyment.
Therefore, the motion seeking to dismiss this claim i& granted.
So ordered.