Comfort Living Furniture Inc. v. McDonald Design Furniture Inc.

2024 NY Slip Op 30905(U)

• Court: New York Supreme Court, Kings County
• Decided: March 19, 2024
• Status: Unpublished

Opinion

Comfort Living Furniture Inc. v McDonald Design Furniture Inc. 2024 NY Slip Op 30905(U) March 19, 2024 Supreme Court, Kings County Docket Number: Index No. 504641/2018 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 03/19/2024 04:24 PM INDEX NO. 504641/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/19/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 ----.- . --- .. -------- :- . --. -. ----------- .- . .-x COMFORT LIVING FURNITURE INC., Plaintiff, Decision and order

- against - Index No. 504641/2018

MCDONALD DESIGN FTJRNTTURE INC. and 1571 HOLDING LLC, Defendant, March . 19, 2024 .

·--- - - -·- - - - - - - - - - - - - - - - - - - - - - - - ------.-.- - - - ·X 1571 HOLDING LLC, Third-Party Plaintiff, -against-

RYBAK DEVELOPMENT AND CONSTRUCTION CORP,, Third-Party Defendant, -------------- ------ ----- -- - -- --- -x PRESENT: HON. LEON RUCHELSMAN Motion Seq; #8

The defendant/third party plaintiff 1571 Holdings LLC has

moved pursuant to CPLR §3212 seeking summary judgement dismissing

the first cause of action of the amended complaint and to strike

the jury demand. The plaintiff has opposed the motion. Papers

were subrni tted by the parties and arguments held. A.ft er

reviewing all the arguments this ·court now makes the following

determination.

Background

As recorded in prior orders in July 2001, Matthew Ferrigno

and Victo:i:-ia Fer:rigno leased their propert.y located at 1571

McDonald Avenue~ Brooklyn, NY to the defendant McDona:id Design

Furniture fbr a duration: of 100 years. Located on this property

was a building ("the S.tore") and .an adjacent. large open area

("lot"). In September 2011, defendant subleased the first floor

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of the store to Comfort Living Furniture for a duration of 10

years. Subsequently, in October 2012, defendant subleased the

basement of the store to the plaintiff for a duration o·f 9

ye.3.rs. .Prior to the defen.dant commencing excavating t.he lot, the

def'endant created a holding company called 1571 Holding LLC:. In

January 2018, a permit to excavate property was issued to 1571

Holding LLC. After :excavation work commenced, plaintiff claims

that due to negligence on behalf of the construction crew, the

store experienced severe flooding which destroyed a significant

portion of plaintiff's inventory, forced the plaintiff to close

the store for a period of time, and forced the .plaintiff to

experid a significant amount of time andmori:ey in order to clean

up the flooded area and to replace the destroyed merchandise. A

lawsuit was commenced seeking damages for those losses sustained.

The plaintiff has alleged two causes of action, namely breach of

contract and negligence. The defendant 1571 H9ldihg LLC has now

moved seeking surhrhary judgement regardin9 the breach of contract

cause of action. The defendant argues that the breach of

contract cause of action is based upon language in the lease that

covenants peaceful and quiet enjoyment of the property upon the

proper payment of rent. The. defendant further .argues that cause

of action requites the. tenant to demonstrate an eviction .of the

premises which. never occurred. Furtherrno:r::.e, the defenp.ant

asserts the plaintiff did not: pay rent arid theref.ore the

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conciition precedent triggering the covenant of quiet enjoyment

never occurred. As noted the motion is opposed.

Conclusions .of Law

Where the material facts at issue in a case a.te in dispute

summary judgment cannot be granted (Zuckerman v. City of New

York, 49 NYS2d 557, 427 NYS2d 595 [1980]). Generally, it is for

the jury, the trier of fact to determine the legal cause of any

injury (Aronson v. Horace Mann-Barnard School, 224 AD2d 249, 637

NYS2d 410 [ Fi:. Dept., 1996]) . However, where only onE) conclusion

may be drawn from the facts then the question of legal cause may

be decided by the trial court as a matter b'f law (Derdiarian

v. Felix Contracting Inc., 51 NY2d 308, 434 NYS2d 166 [ 1980]) .

The covenant of quiet enjoyment only applies if all

conditions precedent have been satisfied and there has been no

waiver qf tho.se conditions (TDS Leasing LLC v. Tradito, 148 AD3d

1079, 51 NYS3d 96 [2d Dept., 2017]). In Dance Magic Inc .• v.

Pike Realty Inc .. , 85 AD3d 1083; 926 .AD2d 5.88 [2d Dept., 2011]) a

tenant sought a claim for a breach of the covenant of quiet

enjoyment following flooding in the premises. The court

explained that "by the express terms of the lease, the plaintiffs

were required to pay rent wl:1.ile remaining in possessi.on of the

subject pr.emises as a condition precedent to receiving the

benefit of quiet enjoyment of· the premises ...The plaintiffs paid

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r1;;,nt for the subject premises through November 2007, but they

failed to pay rent while retaining possession of the subject

premises for a portion of December 2007. Since they remained in

possession of the sµl:J,ject premises while not paying, rent, the

plaintiffs failed to satisfy the conditi.on precedent in their

lease, and are thereby precluded from claiming a breach of the

covenant of quiet enjoyment 11 (id}. Indeed, the failure to pay

rent can only be deemed an election of remedies and consequently

has no claim for a breach of the covenant of quiet enjoyment

(Schwartz v. Hotel Carlyle Owner's Corp., 132 AD3d 541, 20 NYS3d

341 [1 st Dept. i 2015] ) . The plaintiff argues that they only

Stopped paying rent when the flooding occurred and they were

partially evicted the.i::eby. However, that excuse does not permit

the tenant to not pay rent and still pursue claims of the breach

o:E quiet enjoyment (see, 1590 Lexington LLC v. 1590 Corp., 53

Misc3d 155(A)i 50 NYS3d 27 [Supreme Court, Appellate Term 2016]),

Therefore, sin.ce the tenant chose not to pay rent the tenant

cannot pursue a. claim for quiet enjoyment,

Therefore, the motion seeking to dismis-s this claim is

granted.

So ordered.

ENT.ER:

DAT.ED: March 19, 2024 Brooklyn N.Y. Hein. Leon Ru JSC

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