| Burnside 711, LLC v Nassau Regional Off-Track BettingCorp. |
| 2009 NY Slip Op 08169 [67 AD3d 718] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Burnside 711, LLC, Appellant, v Nassau RegionalOff-Track Betting Corp., Respondent. |
—[*1] Lorna B. Goodman, County Attorney, Mineola, N.Y. (Karen Hutson of counsel), forrespondent.
In an action for a judgment declaring that the defendant is obligated to begin paying rentunder the subject lease "no later than May 14, 2008," the plaintiff appeals from an order of theSupreme Court, Nassau County (Davis, J.), entered September 5, 2008, which, upon, in effect,granting that branch of the defendant's motion which was pursuant to CPLR 3211 (c) to deemthat branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR3211 (a) (1) as one for summary judgment, in effect, granted that branch of the defendant'smotion which was for summary judgment, in effect, declaring that it is not obligated to beginpaying rent under the subject lease "no later than May 14, 2008," and that the subject lease isinvalidated.
Ordered that the order is affirmed, with costs, and the matter is remitted to the SupremeCourt, Nassau County, for the entry of a judgment declaring that the defendant is not obligated tobegin paying rent under the subject lease "no later than May 14, 2008," and that the subject leaseis invalid.
The plaintiff, as owner/landlord, and the defendant, a regional off-track betting corporation,as tenant, entered into a lease for certain premises located in Lawrence in the Town ofHempstead. The lease provided that the defendant was to use and occupy the premises for "anylegalized betting and ancillary uses." Paragraph 29.0 of the rider to the lease included a forcemajeure clause which stated, in relevant part, that "[i]n the event [either party] is prevented,delayed, or stopped from performing any act, undertaking, or obligation under this Lease byreason of an 'event of force majeure', including . . . governmental action or inaction. . . then the time for the party's performance shall be extended one (1) day for eachday's prevention, delay, or stoppage by reason of such event of force majeure." Prior to thepayment of rent by the defendant and the [*2]defendant's use ofthe premises under the lease, the Building Zone Ordinance of the Town of Hempstead wasamended to restrict the location of off-track betting parlors (see Building ZoneOrdinance of Town of Hempstead § 302 [L]). It is undisputed that this prevented thepremises from being used as an off-track betting parlor.
The plaintiff commenced this action for a judgment declaring that the defendant wasobligated to begin paying rent under the lease no later than May 14, 2008. Thereafter, thedefendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (c). The SupremeCourt, in effect, granted that branch of the defendant's motion which was pursuant to CPLR 3211(c) to deem that branch of the defendant's motion which was to dismiss the complaint pursuant toCPLR 3211 (a) (1) as one for summary judgment, and, in effect, granted that branch of thedefendant's motion which was for summary judgment, in effect, declaring that it was not soobligated. We affirm.
Initially, although the Supreme Court did not give "adequate notice to the parties" that it wastreating the defendant's motion as one for summary judgment (CPLR 3211 [c]), where, as here, aspecific request for summary judgment was made and the parties " 'deliberately chart[ed] asummary judgment course' " (Mihlovan v Grozavu, 72 NY2d 506, 508 [1988], quotingFour Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]), the court was authorized totreat a branch of the defendant's motion as one for summary judgment (cf. Bowes v Healy, 40 AD3d 566,567 [2007]).
The defendant made a prima facie showing of entitlement to judgment as a matter of law(see Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]). In this regard, the defendant'ssubmissions in support of its motion, which included copies of the lease and section 302 (L) ofthe Building Zone Ordinance of the Town of Hempstead, were sufficient to satisfy its burden.Specifically, the force majeure clause applies herein (see Reade v Stoneybrook Realty, LLC, 63 AD3d 433, 434 [2009]).In light of the amendment to section 302 (L) of the Building Zone Ordinance of the Town ofHempstead, "the reasonable expectations of the parties [to use the premises as an off-trackbetting parlor] have been frustrated due to circumstances beyond the control of the parties"(Macalloy Corp. v Metallurg, Inc., 284 AD2d 227, 227 [2001]; see Kel Kim Corp. vCentral Mkts., 70 NY2d 900, 902 [1987]; Team Mktg. USA Corp. v Power Pact, LLC, 41 AD3d 939, 942[2007]). In opposition, the plaintiff did not raise a triable issue of fact.
Since this is a declaratory judgment action, the matter must be remitted to the SupremeCourt, Nassau County, for the entry of a judgment declaring that the defendant is not obligated tobegin paying rent under the subject lease "no later than May 14, 2008," and that the subject leaseis invalid (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371US 74 [1962], cert denied 371 US 901 [1962]). Rivera, J.P., Eng, Chambers and Hall,JJ., concur.