| Genovese Drug Stores, Inc. v William Floyd Plaza, LLC |
| 2009 NY Slip Op 05507 [63 AD3d 1102] |
| June 30, 2009 |
| Appellate Division, Second Department |
| Genovese Drug Stores, Inc., Respondent, v William FloydPlaza, LLC, Doing Business as Shirley Operating Account,Appellant. |
—[*1] Herrick, Feinstein LLP, New York, N.Y. (Raymond N. Hannigan, William R. Fried, andEgan & Golden, LLP, of counsel), for respondent.
In an action, inter alia, for a judgment declaring that the plaintiff is entitled to continuedpossession of the subject leased premises, the defendant appeals, as limited by its brief, from somuch of an order of the Supreme Court, Suffolk County (Spinner, J.), dated July 8, 2008, as (a)granted that branch of the plaintiff's motion which was for summary judgment "on the issue that"the defendant was not entitled to terminate the lease on the grounds cited by the defendant in itstermination notice in a holdover proceeding entitled Matter of William Floyd Plaza, LLC vGenovese Drug Stores, Inc., pending in the District Court, Suffolk County, and (b) grantedthe plaintiff's separate motion to stay the holdover proceeding and remove it to the SupremeCourt, Suffolk County, and to consolidate that proceeding with this action, and denied, asacademic, its cross motion, among other things, to dismiss the complaint.
Ordered that the order is modified, on the law, by deleting the provisions thereof denying, asacademic, those branches of the defendant's cross motion which were to dismiss the secondcause of action to permanently enjoin the defendant from attempting to terminate the lease andthe third cause of action alleging a breach of the covenant of quiet enjoyment, and substitutingtherefor provisions granting those branches of the cross motion; as so modified, the order isaffirmed insofar as appealed from, without costs or disbursements.
The plaintiff leases retail space (hereinafter the original premises) in a shopping mall ownedby the defendant. The lease was entered into in 1975. In February 2000 the plaintiff and thedefendant's predecessor-in-interest entered into a separate lease under which the plaintiff leasedan additional 3,000 square feet until January 31, 2005. A rider to this lease provided that it couldbe terminated by either party on written notice of six months.
In December 2001 the plaintiff and the defendant's predecessor-in-interest agreed in writingto terminate the lease for the additional space. This termination agreement specifically providedthat it applied only to the additional space and did not affect the plaintiff's right to continuedoccupancy of the original premises. In August 2006 the defendant, relying upon the terminationclause in the lease for the additional space, informed the plaintiff that it was terminating [*2]the lease for the original premises effective February 1, 2008.
The plaintiff commenced this action in the Supreme Court, inter alia, for a judgmentdeclaring that it was entitled to continued possession of the original premises and to enjoin thedefendant from interfering with the plaintiff's possession of the original premises. The defendantthen commenced a holdover proceeding in the District Court, Suffolk County. On March 6, 2008the Supreme Court granted a temporary stay of the holdover proceeding. Despite the stay, onApril 21, 2008, the defendant obtained a default judgment in the District Court and commencedeviction proceedings.
The plaintiff thereafter moved in the Supreme Court, inter alia, for summary judgment "onthe issue that" the defendant was not entitled to terminate the lease on the grounds cited by thedefendant in its termination notice. The defendant cross-moved to dismiss the complaint or, inthe alternative, to remove the action to the District Court, Suffolk County. The plaintiff alsomoved by order to show cause to stay the holdover proceeding and to have it removed to theSupreme Court and consolidated with the action pending in the Supreme Court. The SupremeCourt, among other things, granted that branch of the plaintiff's motion which was for summaryjudgment, granted the plaintiff's motion to stay and remove the holdover proceeding andconsolidate it with the Supreme Court action, and denied the defendant's cross motion asacademic. The defendant appeals.
The Supreme Court correctly granted that branch of the plaintiff's motion which was forsummary judgment "on the issue that" the defendant was not entitled to terminate the lease onthe grounds cited by the defendant in its termination notice. A lease is a contract (seeVermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]; Matter ofWallace v 600 Partners Co., 86 NY2d 543, 548 [1995]). Where the terms of a contract areclear and unambiguous, the contract must be enforced according to its terms (see Reiss vFinancial Performance Corp., 97 NY2d 195, 198 [2001]; W.W.W. Assoc. v Giancontieri,77 NY2d 157, 162 [1990]). Here, the plain language of the agreement by which the plaintiffleased the additional premises provided that the terms of that agreement, which included theright to terminate upon which the defendant relies, applied only to the lease of the additionalpremises and not to the lease of the original premises. The plaintiff thus established that thedefendant had no authority to terminate the lease of the original premises. In opposition, thedefendant failed to raise a triable issue of fact. The Supreme Court, therefore, properly grantedthe plaintiff's motion for summary judgment "on the issue that" the defendant was not entitled toterminate the lease on the grounds cited by the defendant in its termination notice.
Since the Supreme Court was capable of providing all the relief requested, including theequitable relief sought by the plaintiff, and the District Court could not, the Supreme Courtprovidently exercised its discretion in granting the plaintiff's motion to stay the holdoverproceeding and remove it to the Supreme Court, and to consolidate the holdover proceeding withthe action (see Kally v Mount Sinai Hosp., 44 AD3d 1010, 1011 [2007]; Bennigan'sof N.Y. v Great Neck Plaza, 223 AD2d 615, 616 [1996]; DeCastro v Bhokari, 201AD2d 382 [1994]).
However, the Supreme Court should have granted that branch of the defendant's crossmotion which was to dismiss the plaintiff's second cause of action to permanently enjoin thedefendant from attempting to terminate the lease. "[T]he danger of impending judicialproceedings is not an injury justifying an injunction" (Spellman Food Servs. v Partrick,90 AD2d 791, 791 [1982], citing Wolfe v Burke, 56 NY 115, 119 [1874]).
The Supreme Court also should have granted that branch of the defendant's cross motionwhich was to dismiss the plaintiff's third cause of action alleging a breach of the covenant ofquiet enjoyment. "In actions for damages for breach of the covenant of quiet enjoyment, a tenantlikewise must show an ouster, or if the eviction is constructive, an abandonment of the premises"(Dave Herstein Co. v Columbia Pictures Corp., 4 NY2d 117, 121 [1958]; seeWitherbee Ct. Assoc. v Greene, 7 AD3d 699, 702 [2004]; Grammer v Turits, 271AD2d 644, 645 [2000]; Roli-Blue, Inc. v 69/70th St. Assoc., 119 AD2d 173, 175[1986]). Here, the complaint does not contain such an allegation and, therefore, this cause ofaction should have been dismissed.
The defendant's remaining contentions either are without merit or need not be reached [*3]in light of our determination. Spolzino, J.P., Dillon, Florio andBelen, JJ., concur. [See 2008 NY Slip Op 32011(U).]