New York Supreme Court, Kings County, 2024

Comfort Living Furniture Inc. v. McDonald Design Furniture Inc.

New York Supreme Court, Kings County · Decided March 19, 2024

2024 NY Slip Op 30905(U)

Opinion

Comfort Living Furniture Inc. v McDonald Design Furniture Inc. 2024 NY Slip Op 30905(U) March 19, 2024 Supreme Court, Kings County Docket Number: Index No. 504641/2018 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 03/19/2024 04:24 PM INDEX NO. 504641/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/19/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 ----.- . --- .. -------- :- . --. -. ----------- .- . .-x COMFORT LIVING FURNITURE INC., Plaintiff, Decision and order - against - Index No. 504641/2018 MCDONALD DESIGN FTJRNTTURE INC. and 1571 HOLDING LLC, Defendant, March . 19, 2024 .

·--- - - -·- - - - - - - - - - - - - - - - - - - - - - - - ------.-.- - - - ·X 1571 HOLDING LLC, Third-Party Plaintiff, -against- RYBAK DEVELOPMENT AND CONSTRUCTION CORP,, Third-Party Defendant, -------------- ------ ----- -- - -- --- -x PRESENT: HON. LEON RUCHELSMAN Motion Seq; #8

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 subrni tted by the parties and arguments held. A.ft er reviewing all the arguments this ·court now makes the following determination.

Background As recorded in prior orders in July 2001, Matthew Ferrigno and Victo:i:-ia Fer:rigno leased their propert.y located at 1571 McDonald Avenue~ Brooklyn, NY to the defendant McDona:id Design Furniture fbr a duration: of 100 years. Located on this property was a building ("the S.tore") and .an adjacent. large open area ("lot"). In September 2011, defendant subleased the first floor

1 of 4 [* 1] FILED: KINGS COUNTY CLERK 03/19/2024 04:24 PM INDEX NO. 504641/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/19/2024 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 o·f 9 ye.3.rs. .Prior to the defen.dant commencing excavating t.he lot, the def'endant 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 experid a significant amount of time andmori:ey 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 H9ldihg LLC has now moved seeking surhrhary judgement regardin9 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 requites the. tenant to demonstrate an eviction .of the premises which. never occurred. Furtherrno:r::.e, the defenp.ant asserts the plaintiff did not: pay rent arid theref.ore the

2 of 4 [* 2] FILED: KINGS COUNTY CLERK 03/19/2024 04:24 PM INDEX NO. 504641/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/19/2024 conciition 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 a.te in dispute summary judgment cannot be granted (Zuckerman v. City of New York, 49 NYS2d 557, 427 NYS2d 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 AD2d 249, 637 NYS2d 410 [ Fi:. 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 b'f law (Derdiarian v. Felix Contracting Inc., 51 NY2d 308, 434 NYS2d 166 [ 1980]) .

The covenant of quiet enjoyment only applies if all conditions precedent have been satisfied and there has been no waiver qf tho.se conditions (TDS Leasing LLC v. Tradito, 148 AD3d 1079, 51 NYS3d 96 [2d Dept., 2017]). In Dance Magic Inc .• v. Pike Realty Inc .. , 85 AD3d 1083; 926 .AD2d 5.88 [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 required to pay rent wl:1.ile remaining in possessi.on of the subject pr.emises as a condition precedent to receiving the benefit of quiet enjoyment of· the premises ...The plaintiffs paid

3 of 4 [* 3] FILED: KINGS COUNTY CLERK 03/19/2024 04:24 PM INDEX NO. 504641/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/19/2024 r1;;,nt 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 sµl:J,ject premises while not paying, rent, the plaintiffs failed to satisfy the conditi.on precedent in their lease, and are thereby precluded from claiming a breach of the covenant of quiet enjoyment 11 (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 AD3d 541, 20 NYS3d 341 [1 st Dept. i 2015] ) . The plaintiff argues that they only Stopped paying rent when the flooding occurred and they were partially evicted the.i::eby. However, that excuse does not permit the tenant to not pay rent and still pursue claims of the breach o:E quiet enjoyment (see, 1590 Lexington LLC v. 1590 Corp., 53 Misc3d 155(A)i 50 NYS3d 27 [Supreme Court, Appellate Term 2016]), Therefore, sin.ce the tenant chose not to pay rent the tenant cannot pursue a. claim for quiet enjoyment, Therefore, the motion seeking to dismis-s this claim is granted.

So ordered.

ENT.ER:

DAT.ED: March 19, 2024 Brooklyn N.Y. Hein. Leon Ru JSC

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