Blue Dog at 399 Inc. v. BP 399 Park Avenue LLC (In re Blue Dog at 399 Inc.)

540 B.R. 67, 2015 Bankr. LEXIS 3631, 61 Bankr. Ct. Dec. (CRR) 199
CourtUnited States Bankruptcy Court, S.D. New York
DecidedOctober 27, 2015
DocketCase No.: 15-10694 (MEW); Adv. Proc. No.: 15-1097 (MEW)
StatusPublished

This text of 540 B.R. 67 (Blue Dog at 399 Inc. v. BP 399 Park Avenue LLC (In re Blue Dog at 399 Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blue Dog at 399 Inc. v. BP 399 Park Avenue LLC (In re Blue Dog at 399 Inc.), 540 B.R. 67, 2015 Bankr. LEXIS 3631, 61 Bankr. Ct. Dec. (CRR) 199 (N.Y. 2015).

Opinion

OPINION DENYING MOTION TO DISMISS

MICHAEL E. WILES, UNITED STATES BANKRUPTCY JUDGE

Before the Court is a motion to dismiss (the “Motion to. Dismiss”) filed by BP 399 Park Avenue LLC (the “Landlord”) in the above-captioned adversary proceeding brought by Blue Dog at 399 Inc. (the “Debtor”). Among other things, the Landlord takes the position that this Court is precluded from considering the claims raised in the Debtor’s complaint (the “Complaint”) under the doctrines of res judicata and collateral estoppel. The Landlord .also takes the position that this Court lacks subject-matter jurisdiction over this adversary proceeding under the Rooker-Feldman doctrine and that the Complaint fails to state a claim for which relief may be granted. For the reasons set forth below, the Court denies the Motion to Dismiss and directs the parties to appear at a conference to discuss further proceedings.

BACKGROUND

A. The Lease

On January 1, 2012, the Debtor and the Landlord entered into a lease agreement (the “Lease”) to allow the Debtor to operate a café in a portion of the Landlord’s building at 399 Park Avenue in Manhattan (the “Premises”). (Compl. ¶ 10, ECF No. [70]*701.) The Lease contained a provision mandating an outside opening date for the café of August 1, 2012 (the “Opening Date”). (Mot. to Dismiss ¶ 4, EOF No. 6.) After the Debtor allegedly defaulted on two rent payments and failed to open the café by the Opening Date, the Landlord sent the Debtor several notices of default and a notice of cancellation of the Lease. (Complin 15,17.)

B. The 2012 Stipulation and Other Extensions of Time

On September 11, 2012, prior to the expiration of the cure and termination periods, the Debtor commenced litigation in the New York State Supreme Court (the “State Court”) against the Landlord (Index No. 653158/2012) (the “State-Court Action”). (Comply 18.) The Debtor also moved by order to show cause for a Yellowstone injunction against termination of the Lease. (Id.; Proposed Order to Show Cause, Blue Dog at 399 Inc. v. BP 399 Park Avenue LLC, Index No. 653158/2012 (N.Y. Sup.Ct. filed Sept. 11, 2012), NYSCEF No. 3.) The Debtor’s motion, and “all other issues” arising out. of the Landlord’s prior notices, were resolved by the parties pursuant to a so-ordered stipulation dated November 27, 2012 (the “2012 Stipulation”). (Compl. ¶ 21; Stipulation of Settlement, Blue Dog at 399 Inc. v. BP 399 Park Avenue LLC, Index No. 653158/2012 (N.Y. Sup.Ct. so-ordered Nov. 29, 2012), NYSCEF No. 76.)

The 2012 Stipulation stated that “[p]ur-suant to the Three Day Notice, the validity of which was contested by [the Debtor], the Lease terminated as of September 13, 2012.” (Id. at ¶ 4.) However, the parties agfeed that if the Debtor satisfied all of the requirements in the 2012 Stipulation, including opening for business within the next 120 days (the last date of such period being the “Amended Opening Date”), the Lease would automatically be reinstated, and the prior notices of default and termination would be withdrawn. (Id.) In the interim the parties acknowledged that “the terms and conditions of the expired Lease are (and shall continue to be) binding.” (Id. at ¶¶ 5-6). The Debtor also consented to the entry of a judgment of possession and a writ of assistance as to the Premises (the “Judgment and Writ”), the execution of which was stayed pending the Debtor’s compliance with the 2012 Stipulation. (Id. at ¶¶ 7-8; Order and Judgment, Blue Dog at 399 Inc. v. BP 399 Park Avenue LLC, Index No. 653158/2012 (N.Y.Sup.Ct. Nov. 29, 2012), NYSCEF No. 77.)

The parties thereafter agreed to many extensions of the Amended Opening Date. (Compl. ¶ 31; Mot. to Dismiss ¶¶ 10-15.) However, by early 2015, the Debtor still had not opened for business. (Comply 32.) The Landlord then began the eviction process pursuant to the previously issued Judgement and Writ, having the New York City Sheriff serve the Debt- or with a notice of eviction in late January 2015. (Mot. to Dismiss ¶¶ 16-17.) On January 29, 2015, the Debtor filed another motion in the State-Court Action by order to show cause.

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Bluebook (online)
540 B.R. 67, 2015 Bankr. LEXIS 3631, 61 Bankr. Ct. Dec. (CRR) 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blue-dog-at-399-inc-v-bp-399-park-avenue-llc-in-re-blue-dog-at-399-inc-nysb-2015.