Opinion
709221/2014
10-09-2015
Riesenburger Properties, LLLP, Plaintiff, v. Pi Associates, L.L.C., JAMES PI, 3909 MAIN STREET, LLC and CARET & CO., INC., Defendants.
For Plaintiff: Clark & Gentry, P.L.L.C., by Edgar C. Gentry, Jr., Esq., 570 Lexington Avenue, New York, N.Y. 10022 For Defendants: Wu & Kao, PLLC, by Stephen L. Brodsky, Esq., 747 Third Avenue, New York, N.Y. 10017
For Plaintiff:
Clark & Gentry, P.L.L.C.,
by Edgar C. Gentry, Jr., Esq.,
570 Lexington Avenue,
New York, N.Y. 10022
For Defendants:
Wu & Kao, PLLC,
by Stephen L. Brodsky, Esq.,
747 Third Avenue,
New York, N.Y. 10017
Martin E. Ritholtz, J.
The following papers numbered E98 to E130 read on this motion by defendant 39-09 Main Street LLC on a motion to renew and reargue the denial of a Yellowstone injunction. Papers Numbered Notice of Motion to Renew and Reargue-Exhibits- Memorandum of Law E98-E119 Opposing Affirmations, Exhibits, and Memorandum of Law E120-E123 Reply Affirmations, Exhibits, and Memorandum of Law E124-E130
Defendants Pi Associates, L.L.C., and 3909 Main Street, LLC, move, pursuant to CPLR 2221, for leave to reargue and renew this Court's denial of a Yellowstone injunction.
As an initial matter, defendants failed to segregate and itemize the contentions that they believe entitle them to reargument from those that allegedly qualify for renewal. See, CPLR 2214[f]. This Court has done that work in this decision.
The Court first turns its attention to the request for reargument. Motions for reargument are addressed to the sound discretion of the court that decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision. See, CPLR 2221[d][2]; Grimm v. Bailey, 105 AD3d 703 (2nd Dept. 2013); Frenchman v. Lynch, 97 AD3d 632, 633 (2nd Dept. 2012); Anthony J. Carter, DDS, P.C. v. Carter, 81 AD3d 819, 820 (2nd Dept. 2011); Hill v. New York City Tr. Auth., 68 AD3d 866, 867 (2nd Dept. 2009). The remedy of reargument, however, "is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented." McGill v. Goldman, 261 AD2d 593, 594 (2nd Dept. 1999); accord, Foley v. Roche, 68 AD2d 558, 567 (1st Dept. 1979); Haque v. Daddazio, 84 AD3d 940, 942 (2nd Dept. 2011); Mazinov v. Rella, 79 AD3d 979, 980 (2nd Dept. 2010); V. Veerasamy Realty v. Yenom Corp., 71 AD3d 874 (2nd Dept. 2010); Rossi v. Scheinbach, 2015 WL 1034124, 2015 NY Slip Op. 50304(U) (Sup. Ct. Nassau County 2015).
The first basis asserted for reargument by defendants concerns the propriety of the service of the plaintiff's notices of termination, concerning the commercial tenancy. In this respect, the defendants here resemble the character of the Bellman in Lewis Carroll's poem The Hunting of the Snark [1876], who believed that if he said something often enough it would be true. Mere repetition of an argument, countless times, does not equate with its factual substantive validity. The argument contesting the validity of the plaintiff's notices is without merit and is rejected again.
A second basis for seeking reargument, concerning contract interpretation, is more worthy of discussion. Toward the end of this Court's decision, dated June 1, 2015, the opinion contained the following three paragraphs, concerning the Agreement of Lease, dated April 26, 2003, between Alkus I. Riesenburger and Pi Associates, L.L.C., and James Pi, stating:
With respect to assignment of the 2003 lease by Pi Associates to 3909 Main Street LLC, it is undisputed that Pi Associates did not seek the landlord's consent to said assignment. Contrary to defendants' assertions the provisions of the 2003 lease do not permit Pi Associates or Mr. Pi to assign the lease without the landlord's consent. Paragraph 12 of said lease provides that: "Neither Company nor Mr. Pi shall assign its or his rights and obligations under this Agreement without the consent of Lessor, which consent shall not be unreasonably withheld. Nothing in this paragraph shall prevent Mr. Pi from transferring his interest in this Agreement and Lease by Will or inheritance or by gift to a spouse or other family member, subject to the terms and obligations of this Agreement and Lease."
Thus, although the landlord could not object to Mr. Pi's transferring his interest in the lease by either the stated means and could not object to transfers to restricted group of individuals, the lessee was still required to seek the landlord's consent prior to assigning the lease.
The failure to obtain the landlord's prior consent to the assignment is not capable of being cured by the defendants.
Relating to the contractual language quoted in the first paragraph quoted immediately above, defendants vehemently complain that Mr. Pi, the tenant, was specifically permitted the right to assign, bequeath, or devise the tenancy or his interest in the property "to a spouse or other family member." Defendants argue that his assignment to his spouse, Katy Pi, was consistent with the quoted contractual provision. If defendants' argument is true, that Mrs. Katy Pi was the assignee of the tenancy, then under the quoted paragraph 12 of the contract, it could plausibly be argued that there is no need by the tenant to notify and advise the landlord of the assignee of the lease. Alternatively, the contract could be claimed as meaning that there was still a duty to notify the landlord, but who had absolutely no right to object to an assignment and whose consent was unnecessary.
The New York law, in resolving contractual ambiguity, is as follows:
In resolving an alleged conflict between sections of a contract, courts should "adopt an interpretation which gives meaning to every provision of a contract." Muzak Corp. v. Hotel Taft Corp., 1 NY2d 42, 46 (1956). A construction which renders a clause meaningless should be avoided. (supra.)Matter of Trump, 194 AD2d 70, 75 (1993).
Those interesting issues of contract interpretation, however, do not need to be decided here. The defense argument, relying on paragraph 12, and claiming that Mrs. Katy Pi is the assignee, and that there was no breach of the tenancy since the landlord's consent is immaterial, has a huge fallacy in its premise. "Nothing in this paragraph shall prevent Mr. Pi from transferring his interest in this Agreement and Lease by Will or inheritance or by gift to a spouse or other family member, subject to the terms and obligations of this Agreement and Lease." Contract, paragraph 12 (italics supplied). The named assignee, however, was not Mrs. Katy Pi. The assignee was an entity, namely, 3909 Main Street, LLC. As Professor Howard O. Hunter stated, in his recent masterful revision of his treatise Modern Law of Contracts: "A court cannot create an ambiguity out of whole cloth when the language of the contract is clear and straightforward." H. Hunter 1 Modern Law of Contracts § 8.2, at 430 (Thomson Reuters 2015 ed.) (footnote reference omitted).
The Assignment and Assumption of Lease, dated May 1, 2011, was executed between Pi Associates, L.L.C., and 3909 Main Street, LLC. Mrs. Katy Pi is nowhere mentioned in the Assignment. Even if the corporate entity were - - assuming arguendo - - formed for Mrs. Pi's benefit, it would be of no consequence since the express terms and plain wording and terms of both the April, 2003 Lease Agreement and the May, 2011 Lease Assignment speak for themselves. The Lease Agreement allowed Mr. Pi to make a transfer "to a spouse or other family member." 3909 Main Street, LLC, is a domestic limited liability company and is not "a spouse or other family member," applying established rules of contract interpretation.
The law is clear that a limited liability company is an entity. See, K. Walker New York Limited Liability Companies and Partnerships - - A Guide to Law and Practice § 3:2 (West Group 2002) ("The Act was intended to remedy that situation by providing for the creation of an entity that entitles its members to limited liability . . . ").
Concerning defense counsel's request for renewal, nothing recited or shown by defense counsel rises to, evinces, displays, or demonstrates a settlement. First, Mr. Brodsky's discussion of such conversation is rank hearsay since, as made clear by the opposing affirmations, Mr. Brodsky did not participate in the telephone discussion of November, 2014. See, Blaustein v. Sassower, 232 AD2d 516 (2nd Dept. 1996) (admission of hearsay testimony by client's ex-wife as to what her lawyer told her after lawyer had telephone conversation with attorney constituted reversible error).
Once confronted with the fact that Mr. Brodsky's statement was hearsay, defendants submit the affirmation of co-counsel, Allen Wu, Esq., who also alleged a settlement. See Mr. Wu's Reply Affirmation, para. 9, ("During the November 14, 2014 conference call, Plaintiff's counsel (Messers. [sic] Gentry and Coppedge) and I (Defendant's counsel) resolved and settled pending lease issues under the Notices."; boldface and underlining deleted from the original). Unfortunately for defendants, the attempt to correct a mislaid case for the first time in reply is indefensible and impermissible. See, Angwin v. SRF Partnership, L.P., 28 AD3d 593, 594 (2nd Dept. 2006); Adler v. Suffolk County Water Auth., 306 AD2d 229 (2nd Dept. 2003); Soon Rae Kim v. Caesar Chemists, Inc., 297 AD2d 797 (2nd Dept. 2002); Saegert v. Simonelli, 2006 WL 2289182, 2006 NY Slip Op. 51548(U) (Sup. Ct. Nassau County 2006).
Edgar C. Gentry, Jr., Esq., plaintiff's counsel, denies the contentions concerning a settlement. This Court thus turned to the emails produced by defendants concerning a purported settlement or alleged admission of improper service. Normally, an email that details a settlement agreement would be obvious on its face. Such an email would likely read: "This email confirms our telephone conversation of such date settling this dispute upon the following terms, etc." One would not have to strain to find such an email admissible. Its relevance and importance would be as clear as a mountain lake in springtime. Defense counsel does not furnish such emails. He produces redacted and out-of-context snippets of emails, none of which mention any form of the words "settle" or "settlement" and none of which show any admission by plaintiff's counsel. Nothing produced by defendants rises to the level that would even warrant a hearing on whether a settlement was reached in the November, 2014 telephone conversation. See, e.g., Kavanagh v. 107-18 Realty Assn., 114 AD3d 909 (2nd Dept. 2014).
Even if defendants' arguments had any factual support - - and they do not - - they fail to explain why they were not brought on the initial order to show cause, since such alleged "information" or purported "evidence" was previously known to defense counsel. A motion for renewal must be based on new facts that were unavailable at the time that the original motion was made. See, React Service v. Rindos, 243 AD2d 552 (2nd Dept. 1997). Defense counsel is thus reduced to asking the Court to excuse the failure to produce such materials earlier. The branch of the motion seeking renewal is thus improper since the materials now raised were available to defendants on the initial order to show cause. The evidence offered does not justify renewal, as a matter of substance. Accordingly, the branch of the motion seeking renewal is also denied.
The defendants' motion to reargue and renew is thus denied in its entirety.
The foregoing constitutes the decision, opinion, and order of the Court.
______________________________
Hon. Martin E. Ritholtz
Justice, Supreme Court, Queens County
Dated:October 9, 2015
Jamaica, New York