PS Food Corp. v. Granville Payne Retail, LLC

Full title: PS Food Corp., appellant, v. Granville Payne Retail, LLC, respondent.

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Jun 22, 2016

140 A.D.3d 1046 (N.Y. App. Div. 2016)

2016 N.Y. Slip Op. 4926

34 N.Y.S.3d 158

Opinion

2014-11141

06-22-2016

PS Food Corp., appellant, v. Granville Payne Retail, LLC, respondent.

Salzman & Salzman, LLP, Brooklyn, NY (Robert M. Salzman of counsel), for appellant. Gary Rosen Law Firm, P.C., Great Neck, NY, for respondent.

RUTH C. BALKIN, J.P.

L. PRISCILLA HALL ROBERT J. MILLER HECTOR D. LASALLE, JJ. (Index No. 16438/13)

Salzman & Salzman, LLP, Brooklyn, NY (Robert M. Salzman of counsel), for appellant.

Gary Rosen Law Firm, P.C., Great Neck, NY, for respondent.

DECISION & ORDER

In an action, inter alia, for a judgment declaring that a certain notice of default was invalid, the plaintiff appeals, as limited by its brief, from so much of an order and judgment (one paper) of the Supreme Court, Kings County (Demarest, J.), dated November 10, 2014, as denied its motion for summary judgment declaring, among other things, that the notice of default was invalid, granted the defendant's motion for summary judgment, and declared, among other things, that the notice of default was valid.

ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.

The plaintiff entered into a 26-year lease with the defendant. The plaintiff leased the first floor and the basement of a seven-story condominium building, and operates a Key Food Supermarket in the leased space. After receiving a notice of default and then a notice of termination of the lease from the defendant, the plaintiff commenced this action, inter alia, for a judgment declaring that the notice of default was invalid. The Supreme Court denied the plaintiff's motion for summary judgment declaring, among other things, that the notice of default was invalid, granted the defendant's motion for summary judgment, and declared, among other things, that the notice of default was valid. The plaintiff appeals.

The defendant established its prima facie entitlement to judgment as a matter of law declaring, among other things, that the notice of default was valid. The notice of default sufficiently informed the plaintiff of the claimed default under the lease and of the forfeiture and termination of the lease if the claimed default was not cured within a set period of time (see NY Kids Club 125 5th Ave., LLC v Three Kings, LLC, 133 AD3d 580; ShopRite Supermarkets v Yonkers Plaza Shopping, LLC, 29 AD3d 564). In opposition to the defendant's motion, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320).

The plaintiff's remaining contentions are without merit.

Accordingly the Supreme Court properly granted the defendant's motion for summary judgment and, for the same reason, properly denied the plaintiff's motion for summary judgment.

BALKIN, J.P., HALL, MILLER and LASALLE, JJ., concur. ENTER:

Aprilanne Agostino

Clerk of the Court