Smashburger Acquisition - NY LLC v. Fulton Sq. LLC

2024 NY Slip Op 33875(U)

• Court: New York Supreme Court, Kings County
• Decided: October 29, 2024
• Docket: Index No. 523177/2023
• Status: Unpublished

Opinion

Smashburger Acquisition - NY LLC v Fulton Sq. LLC 2024 NY Slip Op 33875(U) October 29, 2024 Supreme Court, Kings County Docket Number: Index No. 523177/2023 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 10/29/2024 01:28 PM INDEX NO. 523177/2023 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/29/2024

SUPREME COURT OF THE ST.ATE .QF NEW YORI< COUNTY OF KINGS : CIVIL TERM: COMMERCIAL PART 8 -· -------. ·---. --.---- .. -•----- .-. -----------x SMASH-BURGER ACQUISITION - NY i..LC, Plaintiff, Decision and order

- against - Index N.o. 52'3'177/2023

FULTON SQUARE LLC, Defendant,. October 291 2024 --. -- .. -. -. --------.---- --------- .-. -------.-x PRESENT: HON. LEON RQCHELSMAN Motion. Seq. #1 _

The. defendant has mo-v.ed pursuant to CPiR §3212 seeking

·summary judgement ··rega_rding the cdunterclairh s filed.. The-

plaintiff o_pposes. the motion. Pape:i;-s were sub.1,ni tted. by $..11

partie. s and after revi~wing the arguments of' ,;111 parties this

c.ourt now mates th.e f ollowiri.g dete·rminatio n.

According to the complaint, t,he parties .entered into a lease

on Mar.ch 31, · 202-2 for space· ·located.· at -S-23 Fulton Sq:uare in Kings

County. The tenant int.ended to utilize the sp_p.ce a-s a restaur_ant

and the leas.e provides for work to be performeo. by the landlord

subject to. t_he tenant'--s subrn.issi<:;m of work p·1:ans. Indeed,- the

compla.i,.nt all'eges the tenant .submitted certain plans in October

2022 ., however, the landlord refused to -approve the pians arguing

a ce·.rtain type o._f exba-ust sy-s.tem was re·guired which was ·not

included within the plans. The dispute regarding this exh.3.ust

system e-v~ntua.lly 1-~d th_e plaintiff to te'rfnim:1t"e the l.ease. This

li3-w;:;uit.. f.ollowe.d and the i::.omplaint se:eks a declaratory judg.ement

the tenant had the legal right to terminate the lease.

Al terna_t.i vei.y, the -plainti:f f alleges a breach of._ --contr~ct. The

1 of 5 [* 1] FILED: KINGS COUNTY CLERK 10/29/2024 01:28 PM INDEX NO. 523177/2023 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/29/2024

defendant filed an answer and asserted counterclaims seeking~

declaratory judgement it fulfilled its obligations under the

lecJ.se and .tor breach of contract. The defendant has now moved

seeking summary judgement arguing there are no questions of fact

the tenant breached the lease and the landlord did not breach the

lease. As noted the motion is opposed.

Conclusions of Law

Where the material facts at issue in a case are 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 o:f fact to determine the legal cause of any

injury, 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 of law (Marino v. Jamison, 189 AD3d 1021,

136 NYS3d 324 [2d Dept., 2021).

Pursuant to Article 87 of the lease the landlord was

required to perform all work included withirt .a letter tha:n became

Exhibit Bat to the lease cJ.t the landlord's expense. That article

states that "landlord shall not be required to perform or cause

the performance of any other work in or to the Demised Premises

or the Building to ready the Demised Premis_es for Tenant I s

occupancy other than Lc1.ndlqrd' s Work" (see, Standard Form of

Store Lease, CJI87 [NYSCEF Doc. No. 18]). Further, Article 53.11

2 of 5 [* 2] FILED: KINGS COUNTY CLERK 10/29/2024 01:28 PM INDEX NO. 523177/2023 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/29/2024

of the lease, concerning the exhaust system at issue, states that

the tenant "shall properly vent and exhaust odors, smoke or

fumes, from the Demised Premises, installing if necessary,

prior to opening the Demised Premises for business and iri

compliance with all laws, such system or systems to accomplish

the same" {see, ;3tandard Form of Store Lease, ':[5'.3.11 [NYSCEF Doc.

No. 18 J ) • The lease does not explain the precise exhaust system that is required to be installed by the tenant. The landlord

argues there are no questions of fact the only exhaust system

that will satisfy the lease and applicable New York City codes is

the system proposed by the landlord which includes a costly

precipitator. However, without any discovery at ail surely there

are questions of fact whether that is the only exhaust system

that will satisfy the lease. The mere fa<::t the tenant ini tia.lly

proposed this system and then ultimately rejected it when i t

proved expensive does not meari the tenant conceded there are no

other alternative exhaust systems that are applicable. ·Moreover,

the Department of Buildings did hot conclude· a precipitator was

required. Rather, the Department of Buildings concluded that "it

is ou:r i.mderstandirtg that a:n Emission control Device (L. e. a

precipita:tot) would mitigate smoke, grease, gases, vapors,

and odors from the discharge at a level that would comply with the requirements of se:ctior1 2022 NYC..,.MC Section 506. 3; 12 .2" (see,

Department of Buildings Construction Code Determination Form, .. . .

3 of 5 [* 3] FILED: KINGS COUNTY CLERK 10/29/2024 01:28 PM INDEX NO. 523177/2023 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/29/2024

page 1 [NYSCEF Doc. No. 25]). Thus, a precipitator would surely

satisfy the exhaust requirements. That does not mean it is the

only method available to comply with the relevant rules,

regulations and the lease. The parties must engage iii discovery

to determine if there are any other systems that can ~atisfy the

lease as well as administrative code requirements. Therefore,

the motion seeking summary judgement concerning the first

counterclaim is denied.

Turning to the issue of the commencement date, the landlor<:l

seeks a summary determination there are no questions of fact the

cornrnencement date was March 31, 2023. In support of that

conclusion the landlord argues that the certificate of occupancy

had be.en in existence sirice 1992 and that all the work the

landlord was required to perform was concluded by that date. The

landlord argues i t completed all the work it was required to

complete which included "in.stalling the slab framing, walls,

restaurant entrance doors, and appropriate utility connections.;

- ensuring that the exterior walls, doors, arid roof 0£ the

Premises were watertight; - providing Tenant access to the roof

So that Tenant could install Vci.tious equipment; and - installing

an exte:rio-r grease interceptor and HVAC unit" (see, Memorandum in

Reply, page 4 [NYSCEF Doc. No. 44]). However, the lease required

the landlord to engage in sixteen enumerated jobs including

providing adequate lighting, natural gas service, internet

4 of 5 [* 4] FILED: KINGS COUNTY CLERK 10/29/2024 01:28 PM INDEX NO. 523177/2023 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/29/2024

requirements and compliance with all Federal and State ADA

requirements. Moreover, a certificate of occupancy from 1992

cannot be sufficient proof that all the work was performed· in

2023. Thus, the landlord has failed to eliminate all questions

of fact whether the work w·as substantially completed by the above

noted dat.e. Therefore, the motion seeking summary judgement

concerning the second counterclaim is dep.ied. Likewise, the request seeking summary judgement concer-ning

the third counterclaim is likewise denied. There are questions

of fact which must be addressed before a determination can be

made whether any party breached the lease.

So o,rdered.

ENTER:

DATED: October 29, 2024 Brooklyn N.Y. Hon. Leon Ruchelsman JSC

5 of 5 [* 5]