Marshalls of MA, Inc. v. CAC Atl., LLC

Marshalls of MA, Inc. v CAC Atl., LLC 2024 NY Slip Op 31974(U) June 4, 2024 Supreme Court, Kings County Docket Number: Index No. 500695/2022 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 06/06/2024 01:10 PM INDEX NO. 500695/2022 NYSCEF DOC. NO. 310 RECEIVED NYSCEF: 06/06/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMM PART 8 . -·-- - - . - - - -·- - . ·- - - - . - - - - - - - - - . - - - - -.- .... ·-.- . X MARSHALLS OF MA, INC. , Plaintiff, Decision ahd order - against - Index No. 50-0695/2022 CAC ATLANTIC, LLC, Defendant, June 4, 2024 ---- .---. -- -·-.- ------.---·---. ----- .. .. .------·-·}{ PRESENT : HON . LEON RUCHELSMAN Motion Seq. #7

The defendant has moved pursuant to CPLR §2221 seeking to reargue a decision and order dated March 7, 2024 that denied the defendant's motion seeking summary judgement and that granted trre plaintiff's motion seeking summary judgement; 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.

As recorded in prior orders, on January 31, 2014 the plaintiff leased space fr.om the defendant at 66 Boerum Place in Kings County. Although the cou:tt stated that at the time the lease was entered into between the parti.e$ a four-story structure existed, in fact, no such structure existed. However, the lease did contemplate a four-story building. Thus, Exhibit A of the lease states that ''the Demised Premises are situated within a four-story building" ( see, Lease, Exh.ibi t A, [N):SCEF Doc. No. 169]). In any event, a dispute arose concerning the plaintiff;s share Crf taxes that were due. The dispute revol v~d around an additional seven residential stories that were built turning a

The defendant has nciw moved seeking to reargue that determination. First, the defendant argues the court erred when it concludecJ the building was already constructed when the lease was entered into between the parties. Second, the defendants argue . the court erred by failing. to consider that the parties knew, when the lease was executed, that more floors would be added to the building and that the plaintiff would be required to pay its share of the taxes for those added floors.

Conclu.sion:s of Law A motion to reargue must be based upon the fact the court overlooked or misapprehended fact or law or for some other re·ason mistakenly arrived at in its earlier decision (Deutsche Bank National Trust Co., v. Russo, 17b AD3d 9,52, 96 NYS3d 617 [2d Dept . , 2019].) .

.First; the mere fact the court erred by reciting that a

_____________________________________________ [* 2] 2 of 5 _.;..,·'••-· FILED: KINGS COUNTY CLERK 06/06/2024 01:10 PM INDEX NO. 500695/2022 NYSCEF DOC. NO. 310 RECEIVED NYSCEF: 06/06/2024 four-story building actual,ly existeci_ when the parties entered into the lease is irrelevant. That fact had no bearing on.the court's decision. This is particularly true since there is no dispute that the lease clearly t::ontemplates a four,-story building as noted.

The defendant a:rgµes the parties contemplated additioni3l floors would be bµilt. The lease actually only mentions any residential uni ts one time. In Schedule F the lease .lists prohibited uses and includes "any living quarters, !=,,leeping apartments, or lodging rooms (excluding the residential units to be constructed by Landlord at the Building)" (see, Leaser Schedule F (7) [NYSCEF Doc. No. 169J) . In addition, S.chedule I of the lease contains a rendering of an eleven story building.

FUrtherj- Alex Adjmi the president of defendant's mani3.gement company stated that Marshalls was aware of the intent to construct an eleven-story ~ixed use building at the pre~ises (see, Af-fidavit of Alex Adjmi [NYSCEF Doc. No. 208]). However, notwithstanding an isolated reference in the le.ase .or testimony supporting that reference there is no basis to conclude there was ever ahy intention for the plaintiff to pay the taxes for any residential portions.

These two issues of fact that are raised, namely that the court was. mistaken ab.out the existence of the building a_nd the fact there is evi,dence Marshalls knew of impending construction

,at the. builq.ing does not detna_nd a review of the court's dec,ision at all. The reargument mot:i.on does not address the law upon whi c.h the ·e.ourt rested its: conclusiori, s pe ci:fi cal ly that_ ~ddi tional taxes 1:;lased U:pon tax-e·scalatio n clauses. whereby the improvements accrue solely to the landlord or owner cannot be imposed upon the- tena.n.:t. The. defendant has failed to point out any ,error _.in that rega_rd. .Moreove:r, the prior decis_ion_ -;3.lready considered whether any questions of fact exist whether the pla-i.ntiff knew about any proposed j,,-rrtpr9vemerit_s or expansion. ·The court pointed to specific language in the lease which unmistakably demonstrated the tenant was only ·;responsible for the commercial p.orti._on of. the le-ase. The fa-ct t).1.e-re may be. evicien¢e the tenant was aware there would be an eleven-story, building as oppos·ed to a- fifty,.;...st:ory building or a building- of unknown h~-i.ght doe$.-. not alter the· cci.n.G_lµsio:n_ the l.anguage of the lease specifically and.exclusiv ely required the tenant to pay 42.9$% of ·the cotruner.cial spa-ce ap.d nothing ·further._ Th~ defendant argrnfs the c:qurt m:ust look to the surrounding circiliristan,ce. s of the ],,ease formation when determining the meaning of sp.ecific l"eas.e· ·provi.s:ions. However,- it is well s-ettled that· an agteeme-n.t that is clear and unambiguous on its face shall be enf.o.l'."ced according to it~ pl-_ain te-.tms (Greenfield V. Philles Records, '.Inc·., 98" _ijY2c:i 562, 750 NYS2d 565 [2002.]). E~trinsic evid~nce_ demona:tratin g the true intent o{ the parties is g·e··ner·ally inadrttiss'ible ( Pentacon

LLC v. 422 Knickerbocker LLC; 165 AD3d 829, 86 NYS3d 177 [2d Dept,, 2018]). Such extrinsic evidence may be admissible if an ambiguity exists and whether such ambiguity exists is a, question of law (N.RT New York, LLC, Brown, 167 AD3d 764, 89 NYS3d 695 [2d Dept,, 2018']). Further, extrinsic evidence may not be submitted to ere.ate an ambiguity (Brad H. v. City of New York, 17 NY3d 180, 921 NYS2d 221 [2017]). A contract will be cQn$idered ambiguous if susceptible to more tha:n one interpretation ( id) . Thus, as noted, without any ambiguity the plain meaning of the contract terms control (Goetz v. Trinidad, 168 AD3d 6-88, 91 NYS3d 513 [2d Dept., 2019]). Tn this case there are no contact terms that are ambiguous. As explained in the prior decision, the lease unequivocally requires the tenant to pay taxes only for the coIT1TI1.ercial portion. The plaintiff's knowledge of a possible expansion does not mean there are questions whether the plaintiff agreed to pay the taxes for that contemplated expansion. There is QO basis whatsoever imposing such taxes on the plaintiff.

Con5equerttly, the defendant' 5. $ubjective belief the tenant is obligated cannot raise any questions of fact.

Therefore, basetj on the foregoing, the motion seeking reargument is denied~

ENTER: DAT'ED: June 4., 2024 BrOoklyl"l.~ N .. Y.

Hon; JS.C