Opinion
Index No. 651615/2023
08-21-2023
KORPENN LLC, Plaintiff v. ONE PENN PLAZA LLC, Defendant
Unpublished Opinion
DECISION AND ORDER
LUCY BILLINGS, J.S.C.
Defendant is the ground lessee of a building owned by . plaintiff across the street from Penh Station 'and Madison Sguare Garden, between 7th and 8th Avenues and between West 33rd and West 34th Streets, New York County. The parties' lease provides for appraisal of the building, on which defendant's prospective rent will be based upon renewal of the lease.. Before the next appraisal plaintiff asks the court to invalidate a 2022 agreement between defendant and the successor to the former sublessee of part of the leased premises, which changed a 1999 surrender to defendant of' the sublease to an assignment. This part of the . leased premises comprises 28,135 square feet of valuable retail frontage along 7th and 8th Avenues. Plaintiff seeks a preliminary injunction against the appraisal until a final determination whether the change is valid. The court vacates the temporary restraining order dated April.7, 2023, which by its terms already has expired, and denies plaintiff's motion for a preliminary injunction because plaintiff fails to show a likelihood of success on plaintiff's claim that the change is invalid. C.P.L.R. §§ 6301, 6312(a); Uber Tech., Inc, v. American Arbitration Assn., Inc., 204 A.D.3d 506, 508 (1st Dep't 2022); Avenue A Assoc. LP v. Board of Mqrs. of the Hearth House Condominium, 190 A.D.3d 473, 473 (1st Dep't 2021); Wilder v. Fresenius Med. Care Holdings, Inc., 175 A.D.3d 406, 408 (1st Dep't 2019).
I. LIKELIHOOD OF SUCCESS
Plaintiff was not a party to the 1999 agreement that surrendered the sublease to defendant and thus terminated the sublease. Although plaintiff insists that the terminated sublease may not be revived, the parties to that agreement or their successors, defendant and Capital One, N.A., were free to rewrite the agreement to cancel the termination, revive the sublease, and assign rather than surrender it to defendant. Arici v. Poma, 202 A.D.3d 584, 585 (1st Dep't 2022); Warburg . Opportunistic Trading Fund L.P, v. Geo Resources, Inc., 151 A.D.3d 465, 472-73 (1st Dep't 2017); Pena v. Chateau Woodmere Corp., 304 A.D.2d 442, 443-44 (1st Dep't 2003). Defendant and Capital One are the parties who may determine and express the intent of their predecessors' 1999 agreement and change it to reflect that intent. The 2022 assignment agreement thus modifies the 1999 surrender agreement to clarify that defendant and Capital One's predecessor did not intend to change the status of the sublease :by the 1999 Memorandum of Surrender, reinstates the sublease, and rescinds the 1999 Memorandum of Surrender. These terms are . unambiguous and enforceable, since the lease between plaintiff . and defendant imposes no restrictions on assignment of the sublease.
Plaintiff points to defendant's collection of rent for the formerly sublet premises since the previous surrender of the sublease, as affecting the fair market value of the building, but does not show how assignment of the sublease to defendant necessarily will change its ability to collect rent for the sublet premises. Whether defendant is the lessee or sublessee of that part of the building, defendant may rent those premises.. Defendant paid for that capability in 1999 when defendant purchased the sublease fo $36,000,000. Nevertheless, the court . determines only that plaintiff has failed to•show any likelihood that the sublease revived by the 2022 assignment is not in' effect. The court does not and will not determine the impact of the assignment or the sublease on the appraisal of plaintiff's building. 936 Second Avenue L.P, v. Second Corporate Dev. Co., Inc., 10 N.Y.3d 628, 631-32 (2008); New York Overnight Partners, L.P, v. Gordon, 88 N.Y.2d 716,.721 (1996).
II. DISCLOSURE
Plaintiff also moves for expedited disclosure, to which defendant stipulates. In any event, once plaintiff commenced this action, plaintiff was immediately free to employ all disclosure devices except a deposition of defendant and requests for admissions, neither of which plaintiff seeks. C.P.L.R. §§ 3106(a), 3120(1), 3123(a), 3130(1). Once defendant's time to respond to the complaint expired, moreover, plaintiff was free to proceed with those two devices as well. C.P.L.R. §§ 3106(a), 3123(a). Since plaintiff demonstrates no need for an order to conduct disclosure and has not used the disclosure devices available, the court also denies plaintiff's motion to the extent it seeks disclosure.
III. CONCLUSION
In sum, for the reasons explained above, the court denies plaintiff's motion in its entirety. C.P.L.R. §§ 3106(a), 3120(1), 3123(a), 3130(1), 6301, 6312(a).