| Analisa Salon, Ltd. v Elide Props., LLC |
| 2007 NY Slip Op 10083 [46 AD3d 721] |
| December 18, 2007 |
| Appellate Division, Second Department |
| Analisa Salon, Ltd., Doing Business as Susan Marlowe FigureSalon, Appellant, v Elide Properties, LLC, et al., Appellants-Respondents, and JohnJames Romeo et al., Respondents. (Action No. 1.) Analisa Salon, Ltd., Doing Business as SusanMarlowe Figure Salon, Appellant, v Michael M. Seminara et al., Respondents. (Action No.2.) |
—[*1] DelBello Donnellan Weingarten Tartaglia Wise & Wiederkehr, LLP, White Plains, N.Y.(Lee Wiederkehr of counsel), for appellants-respondents. Warren S. Goodman, Larchmont, N.Y. (Ronald Cohen of counsel), for respondent JohnJames Romeo. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (John M. Flanneryof counsel), for respondents Michael M. Seminara and Kenneth R. Herbert.
In two related actions, inter alia, to recover damages for unlawful eviction and breach of alease, and for specific performance of a right of first refusal contained in the lease, the plaintiff inaction Nos. 1 and 2 appeals, as limited by its brief, from so much of an order of the SupremeCourt, Westchester County (Bellantoni, J.), entered July 12, 2006, as denied those branches of itscross motion in action No. 1 which were for leave to serve a late notice of claim and for summaryjudgment on the issue of liability against the defendants Michael M. Seminara and Kenneth R.[*2]Herbert, and for summary judgment on the issue of liabilityagainst the defendant John James Romeo on the first and fourth causes of action, granted thatbranch of the motion of the defendants Michael M. Seminara and Kenneth R. Herbert which wasto dismiss the complaint pursuant to CPLR 3211 and 3212 insofar as asserted against them inaction No. 1, denied those branches of its cross motion in action No. 2 which were for leave toserve a late notice of claim and for summary judgment on the issue of liability, and granted thatbranch of the motion of the defendants in action No. 2 to dismiss the complaint pursuant toCPLR 3211 and 3212, and the defendants Elide Properties, LLC, and Jack Seminara in actionNo. 1 separately appeal from so much of the same order as granted that branch of the motion ofthe defendants Michael M. Seminara and Kenneth R. Herbert which was to dismiss all crossclaims asserted against them in action No. 1.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthat branch of the plaintiff's cross motion in action No. 1 which was for summary judgment onthe issue of liability against the defendant John James Romeo on the fourth cause of action, andsubstituting therefor a provision granting that branch of the plaintiff's cross motion, (2) bydeleting the provision thereof granting that branch of the motion of the defendants Michael M.Seminara and Kenneth R. Herbert which was to dismiss the complaint insofar as asserted againstthem in action No. 1, and substituting therefor a provision denying that branch of the motion, (3)by deleting the provision thereof granting that branch of the motion of the defendants in actionNo. 2 which was to dismiss the complaint, and substituting therefor a provision denying thatbranch of the motion, (4) by deleting the provision thereof granting that branch of the motion ofthe defendants Michael M. Seminara and Kenneth R. Herbert which was to dismiss all crossclaims asserted against them in action No. 1, and substituting therefor a provision denying thatbranch of the motion, and (5) by deleting the provision thereof denying that branch of theplaintiff's cross motion in action No. 2 which was for summary judgment on the issue of liabilityon the cause of action to recover damages for wrongful eviction in violation of RPAPL 749 (2)and substituting therefor a provision granting that branch of the plaintiff's cross motion; as somodified, the order is affirmed insofar as appealed from, without costs or disbursements, and thematter is remitted to the Supreme Court, Westchester County, for further proceedings inaccordance herewith.
On February 14, 1997 Analisa Salon, Ltd., doing business as Susan Marlowe Figure Salon(hereinafter Analisa Salon), as tenant, entered into a five-year lease with the defendant JohnJames Romeo, the owner of the subject property. The lease granted Analisa Salon an option torenew the lease for two additional five-year terms. Additionally, pursuant to the lease, AnalisaSalon had a right of first refusal "[i]n the event that th[e] property is offered for sale."
In April 1998 Romeo notified Analisa Salon that it planned to sell the subject property for$500,000. Analisa Salon responded that it declined to exercise its right of first refusal at thattime, but that it "reserve[d]" the right and expected to be notified of any third-party offers.
In December 1999 Romeo received a third-party offer to purchase the subject property for$440,000, and Romeo notified Analisa Salon of that offer. Analisa Salon responded that it wouldexercise its right of first refusal, and it apparently negotiated a reduction of the purchase price to$385,000. However, Analisa Salon declined to execute a contract of sale, and it received noticefrom Romeo in June 2000 that its time to purchase the subject property had "expired."
In April 2001 Romeo sold the subject property to the defendant Elide Properties, LLC(hereinafter Elide Properties), for $385,000. According to the president of Analisa Salon, Lisa[*3]Avellino, Romeo failed to provide notice of Elide Properties'offer to purchase the subject property, and she did not learn that Elide Properties was the newowner until May 2001.
In September 2001 Analisa Salon notified Elide Properties that it would exercise its option torenew the lease for an additional five-year term. After Elide Properties responded that the annualrent would be increased for the additional five-year term, Analisa Salon commenced an action fora judgment declaring the parties' rights under the lease.
On September 13, 2004 the Supreme Court issued a judgment declaring the rent owed byAnalisa Salon during the additional five-year term. After Analisa Salon failed to pay theadditional amount of rent owed, Elide Properties commenced a summary proceeding to evictAnalisa Salon for nonpayment of rent. On March 10, 2005 a warrant of eviction was issued,which was executed by the defendants Michael M. Seminara and Kenneth R. Herbert, Constablesof the Town of Eastchester (hereinafter collectively referred to as the Constables).
Analisa Salon commenced these related actions seeking, inter alia, to recover damages forunlawful eviction and breach of the lease, and for specific performance of its right of first refusalcontained in the lease. Analisa Salon alleged, inter alia, that Elide Properties refused to accept acheck on the date of eviction for the amount owed, and that Constable Seminara had a personalinterest in securing the eviction because his father, the defendant Jack Seminara, was theprincipal of Elide Properties. Elide Properties and Jack Seminara asserted a cross claim forindemnification against Constable Herbert.
The Constables moved in both actions, inter alia, to dismiss the complaints and all crossclaims insofar as asserted against them, arguing that the claims against them could not bemaintained because Analisa Salon failed to serve a notice of claim as required by GeneralMunicipal Law § 50-e. Analisa Salon cross-moved in both actions, inter alia, for summaryjudgment on the issue of liability against the Constables, asserting that it was not required toserve a notice of claim.
Romeo cross-moved, inter alia, for summary judgment dismissing the complaint in actionNo. 1 insofar as asserted against him on the ground that Analisa Salon waived its right of firstrefusal by declining to exercise that right after receiving notice of Romeo's intent to sell thesubject property in April 1998. Analisa Salon cross-moved, inter alia, for summary judgment onthe issue of liability against Romeo, asserting that Romeo was required to provide notice that hehad received an offer from Elide Properties.
In opposition to Analisa Salon's cross motion, Romeo submitted, inter alia, a copy of a letterdated February 14, 2001, which stated that it had received an offer to purchase the subjectproperty from Elide Properties, and an affirmation from Romeo's attorney stating that the letterhad been sent to Analisa Salon. Analisa Salon denied that it ever received the February 2001letter.
The Supreme Court granted those branches of the Constables' motions in both actions whichwere to dismiss the complaint and all cross claims insofar as asserted against them, finding thatservice of a notice of claim was a condition precedent to commencement of an action againstthem. Additionally, the Supreme Court declined to award summary judgment to Romeo orAnalisa Salon, finding the existence of a triable issue of fact as to whether Romeo sent theFebruary 2001 letter to Analisa Salon.[*4]
General Municipal Law § 50-e (1) (a) provides, inpertinent part, that in any case founded in tort where a notice of claim is required by law, suchnotice must be served within 90 days after the claim arises. General Municipal Law § 50-e(1) (a) "does not, in and of itself, require the service of a notice of claim, but rather simplyrecognizes that when such a notice of claim is required by other pertinent laws, it must be servedin accordance with the strictures of General Municipal Law § 50-e" (Bovich v East Meadow Pub. Lib., 16AD3d 11, 16 [2005]).
Furthermore, "General Municipal Law § 50-e (1) (b) provides that the notice of claimrequirement does not apply where only an officer, appointee, or employee of a publiccorporation, rather than the public corporation itself, is a named defendant unless the publiccorporation has a statutory obligation to indemnify the person" (Smith v Scott, 294 AD2d11, 18-19 [2002]).
Here, Analisa Salon submitted evidence which established, prima facie, that it was evicted bythe Constables in violation of RPAPL 749 (2). The burden then shifted to the Constables to raisea triable issue of fact. The Constables, in reliance upon Local Law No. 7 of the Town ofEastchester, contended that they were entitled to indemnification from the Town and, therefore,Analisa Salon's failure to serve a notice of claim pursuant to General Municipal Law 50-e (1) (b)required dismissal of the complaint. Local Law No. 7, which provides for the indemnification ofTown employees in civil actions arising out of any alleged act or omission which occurs in thescope of employment, defines an "employee" as: "any person holding a position by election,appointment or employment in the service of the Town, including members of the PlanningBoard, Zoning Board of Appeals, Board of Electrical Control, Plumbing Board of Examiners,Board of Architectural Review, Board of Recreation Commissioners, Board of Ethics, Board ofTrustees of the Police Pension Fund, Board of Police Commissioners and the Library Board ofTrustees. It shall not include an independent contractor, a volunteer, or any person notcompensated for his services except as aforementioned. The term 'employee' shall include aformer employee, his estate or judicially appointed personal representative" (Local Law No. 7§ 1 [a]).
The Town Board minutes submitted by Analisa Salon in opposition to the Constables'motion established that the position of Town Constable is not compensated by the Town ofEastchester. Accordingly, pursuant to the exclusionary language of Local Law No. 7 § 1(a), the Constables were not entitled to indemnification from the Town as a matter of law.Therefore, as a matter of law, Analisa Salon was not required to serve a notice of claim as acondition precedent to the commencement of these actions, and the Supreme Court incorrectlydenied Analisa Salon's motion in action No. 2 for summary judgment against the Constables onthe cause of action to recover damages for wrongful eviction in violation of RPAPL 749 (2).
Additionally, as Analisa Salon correctly asserts, it submitted evidence which established,prima facie, that it did not receive notification from Romeo of Elide Properties' offer to purchasethe subject property. The burden then shifted to Romeo to produce proof in evidentiary form toraise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 326-327[1986]). Romeo failed to satisfy this burden by submitting an affirmation from his attorney, whohad no personal knowledge of the facts, claiming that the February 2001 letter had been sent toAnalisa Salon (see Diamond v DiLuzio, 22 AD3d 517 [2005]). Significantly, the attorney who represented Romeo inconnection with the sale of the subject property made no such claim. Furthermore, contrary to[*5]Romeo's contention, Analisa Salon did not waive its right offirst refusal by declining to exercise that right after receiving in April 1998 notice of Romeo'sintent to sell (see Cipriano v Glen CoveLodge #1458, B.P.O.E., 1 NY3d 53 [2003]).
Nevertheless, Analisa Salon was not entitled to summary judgment on the first cause ofaction of the amended verified complaint in action No. 1 for specific performance of the right offirst refusal contained in the lease, because it offered no proof that it was ready, willing, and ableto purchase the property under the terms offered to Elide Property (see Cipriano v Glen Cove Lodge #1458,B.P.O.E., 1 NY3d 53, at 393-394 [2003]).
However, Analisa Salon was entitled to summary judgment on the fourth cause of action ofthe amended verified complaint in action No. 1 alleging breach of the lease, and it may recoverdamages resulting from the breach. Accordingly, we remit the matter to the Supreme Court,Westchester County, for a determination on the issue of damages.
The parties' remaining contentions are without merit or need not be reached in light of ourdetermination. Schmidt, J.P., Fisher, Lifson and Carni, JJ., concur.