170 Tlllary Corp. v. Gold Tillary Realty LLC
Opinion
170 Tlllary Corp. v Gold Tillary Realty LLC 2024 NY Slip Op 31338(U)
April 16, 2024
Supreme Court, Kings County Docket Number: Index No. 510354/2022 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 04/16/2024 02:09 PM INDEX NO. 510354/2022 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 04/16/2024
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS .: CIVIL TERM: COMMERCIAL 8 ------- ------ ----- -------------- ----- X 17Q TlLLARY CORP.,
Plaintiff, Decision and order
"'""against - Index No. 510354/2022
GOLD TILLARY REALTY LLC,
Defendant, April 16, 2024 ------- .------ .-------------------. -------x PRESENT: HON. LEON RUCHELSMAN Motion Seq. #4
The defendant has moved pursuant to CPLR §2221 seeking to reargue a decision and order dated August ~i 2023. The plaintiff has opposed the motion. Papers were submitted by the parties and arguments held. After reviewing all the arguments, tl1is court now makes the fpllowing determination.
As recorded in prior orders, on October 7, 1999 the plaintiff tenant entered into a lease with lancUord concerning the rental of space located at 170 Tillary Street in Kings County. A riotice demanding rent was served on May 8, 2023 alleging the failure to pay water and sewer charges through May 2023 and real estate taxes and rent from November 2021 through May 2023. The tenant sought and was granted a Yellowstone, staying any termination .of the lease pending the resolution of th~ disp:ute regarding the demand. The court held there were disputed• is.sues whether the amourtt sought was clas~ified 1:3.s rent. Moreoye.r, the. court explained th9 t even i,f the .amount s.c:iught was rent a Yellowstone was the proper relief following a trotice to ·CU:i:e ~
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The defendant has now moved seeking to reargue that determination. They assert that they never filed a notice to cure, rather, they filed a simple rent demand. They further arguie that defaulting a rent demand results in anon-payment proceeding. This is different is substance than a holdover proceeding which results when a tenant fails to cure pursuant to a notice to cure. Consequently, a Yellowstone is only available to toll a holdover proceeding and not a non-payment proceeding. Therefore, the defendant seeks reargument and upon such reargument the termination of the Yellowstone injunction.
Conclusion~ of Law
A motion to .teargue rnust be based upon the fact the court overlooked or misapprehended fact .or law or for some othex reason mistakenly arrived at in its earlier decision (Deutsche Bank
National Trust CcL, v. Russo, 170 AD3d 952, 96 NYS3d 617 J2d Dept., 2019]).
As recorded in the prior decision, there are seriot.1.s factual issues whether the additional rent Sought can be classified as rent. Thus, the notice dated May 8, 2023, regardless of how it is classified or labeled, is not a mere rent demand. If the additional rents sought are .riot deemed rent th~n t.h.e dema.nd is,
in essence, a notice to cure which maj be the snbjett of a Yellowstone injunction. Thedefertdant concedes the possibility
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of this reality, however, asserts it does not matter. The defendant argues that even if the amounts sought are not rent and the payments of real estate taxes to the City amount to a leasehold covenant ''the consequence would merely be that PTairi.tiff would have a defense to a non-payment prnceecting predicated on these amounts. This would in no way convert the New Rent Demand to a notice to cure 11 (see, Memorandum in Support, page 6 [NYSCEF Doc. No. 128]). However, other than the payment of strict rent there would be no basis to conduct a non-payment proceeding at all. Indeed, there is no dispute the tenant has made all strict rental payments and this dispute only involves other charges including taxes and sewer payments and whether these other charges may properly be Classified as rent. Thus, there would be no non-payment proceeding at all in which to assert these defenses. Indeed, these defenses should be raised in a holdover proceeding. Therefore, as already explained, the notice dated May 8, 2023 could only he challenged by seeking a Yellowstone regardless of the notice's purported representations as nothing more than a rent demand. Further, it is well settled that when questions of fact exist a Yellowstone injunction should hot be denied since doing so would adjudicate the underlying case ( se-e, Boi 'To Go Inc. , v. Second 8.00 No. 2 LLC, 58 AD3d 482, 8 7 0 NY'S2d 334 [Pt Dept • .1 2009], W & G Wines LLC v. Golden Chariot Holdings LLC, 46 M.Isc3d 1202 (A), 7 .NYS3d 245· [Supreme Court Kings
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County 2014]) . Thus, the fact there are questions about the
nature of the additional rent does not mean a Yellowstone cannot be granted.
Additionally, the legal truism that a tenant is not faced with the termination of a lease in a non,...pay'ment proceeding: is really beside the point. As explained, the additional rent, at
this juncture, ha:s not been adjudicated as rent a:nd therefore a non-payment proceeding is not the right venue to adjudicate these
claims. Indeed, these arguments can be viewed as a request to reargue the underlying determination that the additional rent sought may not be base rent. While such arguments are not
expressly made, the repeated insistence that a non-payment proceeding is the proper method of adjudicating these issues,
highlights such relief. Based on the reasons outlined in the prior decision the court declines to reconsider the conclusions
reached there.
Consequently, since the claims contained in the May B, 2023 llotice s.eek compliance regarding matters other than rent a
Yellowstone is proper. Therefore, the motion seeking reargurnent is denied.
Turning to the issue of ari Undertaking, it is well settled
that upon .granting a Yellowstone inj unctiOn the court may impose reasonable .conditions iricludihg the po·sting of an undertaking.
(Sportsplex of Middletown, :tnc., v. Catskill Re.gidnal Off:..,Track
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FILED: KINGS COUNTY CLERK 04/16/2024 02:09 PM INDEX NO. 510354/2022 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 04/16/2024
Betting Corp., 221 AD2d 428, 633 NYS2d 588 [2d Dept., 1995]) . Thus, the imposition of an undertaking is discretionary (see, Mayfair Super Markets Inc., v. Serota, 262 AD2d 461, 692 NYS2d 415 [2d Dept., 1999]). An undertaking would be appropriate for an amount rationally related to the damages that can be suffered if the relief should not have been granted (Bennigen's of New York Inc., v. Great Neck Plaza L. P., 223 AD2d 615; 636 NYS2d 835 [2dDept., 1996]).
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