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FILED: KINGS COUNTY CLERK 05/03/2018 11:10 AM INDEX NO. 510844/2016
NYSCEF DOC. NO. 345 RECEIVED NYSCEF: 05/03/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-----------------------------X X
CHERRY HILL GOURMET, INC., :
:
Plaintiff, :
: Index No. 510844/16
-against- :
: NOTICE OF ENTRY
LUNDY'S MANAGEMENT CORP., :
:
Defendant. :
-----------------------------X X
LUNDY'S MANAGEMENT CORP., :
:
Defendant and :
Third-Party Plaintiff, :
-against- :
:
SHEEPSHEAD RESTAURANT ASSOCIATES, :
INC., :
:
Third-Party Defendant. :
-----------------------------X X
PLEASE TAKE NOTICE, that the within is a true copy of the Decision and
Order (Ash, J.) duly entered in the office of the Clerk of the within-named Court on April 4,
2018.
Dated: New York, New York ROSENBERG & ESTIS, P.C.
2018 Attorneys for Defendant and Third-Party
May 3,
PlaintiffLundy's Management Corp.
By:
Gregory ong
733 Third Avenue
New York, New York 10017
(212) 867-6000
RE<0539410001'2305430v1
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NYSCEF DOC. NO. 345 RECEIVED NYSCEF: 05/03/2018
To: ZINGMAN & ASSOCIATES PLLC
Attorneys for Plaintiff Cheny Hill Gourmet Inc.
110 East 42nd Street, 17th Floor
New York, New York 10017
Attention: Mitchell S. Zingman, Esq.
HAGAN, COURY 4 ASSOCIATES
Attorneys for Third-Party Defendant
Sheepshead Restaurant Associates Inc.
908 4th Avenue
Brooklyn, New York 11232
Attention: William J. Coury, Esq.
RE<05394300019305430v1
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NYSCEF DOC. NO. 345 RECEIVED NYSCEF: 05/03/2018
FILED: KINGS COUNTY CLE
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 04/04/2018
At an IAS Term, Comm-11 of the Supreme Court of
the State of New York, held in and for the County of
Kings, at the Courthouse, at Civic Center, Brooklyn,
New York, on the 3rd day of 2018.
P R E S E N April,
T:
HON. SYLVIA G. ASH,
Justice.
----- ----- -- - -- - ----- --------- --- - --- - ----X
CHERRY HILL GOURMET, INC.,
Plaintiff, DECISIONAND ORDER
- against -
Index 0 510844/2016
LUNDY'S MANAGEMENT CORP., Mot.Seq. 3 & 4
Defendant.
- -------------------- --- ------------ ---- --XX
LUNDY'S MANAGEMENT CORP.,
Defendant and
Third-Party Plaintiff,
- against - l
SHEEPSHEAD RESTAURANT ASSOCIATES, INC.,
Third-Party Defendant.
- -- - -- - -- - -_ _ _ _ _ _ --- - -- -- -- -- - -- ----- -- - - X
The following papers numbered 1 to 14 read herein: Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed 1 - 4
Afñdavits 5 - 11
Opposing (Affirmations)
Affidavits (Affirmations) 12 - 14
Reply
After oral argument and upon the foregoing papers, the motion by Defendant, LUNDY'S
MANAGEMENT CORP. ("Lundy's"), for partial summary judgment against Plaintiff, CHERRY
(" Hill"
HILL GOURMET, INC. ("Cherry Hill") and todismiss Cherry Hill's affirmative defenses isdecided
as follows:
(1) summary judgment as to Lundy's firstcounterclaim for contractual indemnity isdenied;
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NYSCEF DÓC. NO. 341 RECEIVED NYSCEF: 04/04/2018
(2) summary judgment as to Lundy's second counterclaim a judgment
seeking declaratory
that "Cherry Hill breached itsobligations under the Subleases, the and all
Zoning Resolution,
applicable laws and store"
by illegally using operating the Premises as a Use Group 6 food isdenied,
and, further, said counterclaim is dismissed as Lundy's can be afforded a full and adequate remedy
under itsclaim for breach of contract;
(3) summary judgment is granted in favor of Lundy's on itsthirdcounterclaim for breach of
contract with regards to the breaches asserted in paragraphs 87-94 of Lundy's Answer with
Counterclaims but is otherwise denied;
(4) summary judgment is granted in favor of Lundy's on its twenty-fourth counterclaim
seeking attorney's fees to the extent that Lundy's may recover attorney's fees associated with the
instant action stemming from Cherry Hill's breaches under the Subleases but that attorney's fees
accrued in association with the prior bankruptcy and nonpayment proceedings may not be recovered
in this proceeding (see Wavertree Corp. v 136 Waverly Assocs., 258 AD2d 392, 392 [1st Dept
1999]);
judgment as to Lundy's eighth and ninth counterclaims for breach of contract
(5) summary
and judgment to Cherry Hill's alleged failure to pay $99,622.55 in real estate
declaratory relating
taxes is denied without prejudice to renew. The Court cannot discern from the evidence submitted
what period of time was covered the $1 15,863.44 real estate tax payment set forth in the March
by
18, 2015 stipulation;
judgment isdeniedas to Lundy's tenth counterclaim for breach of contract but
(6) summary
granted as to Lundy's eleventh counterclaim for judgment regarding the return of atleast
declaratory
10 spaces to Lundy's pursuant to Paragraph 16.8 of the 2007 Sublease, and as incorporated
parking
the2011 and 2013 and the parties are directed to comply with the foregoing lease
by Subleases,
provision. Hill failed to raise an issue as to whether Lundy's waived the "no oral
Cherry
modification" proof of the alleged $200,000
clause because itfailed to provide any payment;
judgment is denied as to Lundy's twelfth counterclaim for breach of contract
(7) summary
but granted as to Lundy's thirteenth and fourteenth counterclaims to the extent that the Court finds
that Paragraph 9.5 of the 2007 Sublease, and as incorporated by the 2011 and 2013 Subleases,
requires Hill to install a water meter or submeter in the Sublease Premises and that Cherry
Cherry
Hill is directed to with said provision within 120 days of the date of this Order;
comply
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(8) summary judgment is granted as to Lundy's twenty-second counterclaim seeking a
declaratory judgment that the Subleases require Cherry Hill to pay its proportionate share of the
Main Building's insurance expenses;
(9) motion to dismiss Cherry Hill's affirmative defenses is granted as toCherry Hill's
fifteenth affirmative defense but is otherwise denied; and
(10) summary judgment dismissing Cherry Hill's eleventh cause of action under General
Business Law §349 is granted and that Cherry Hill's eleventh cause of action is dismissed.
The remainder of Lundy's motion for injunctive relief (motion sequence 4), tothe extent not
decided this Court's short form order dated March 28, 2018, is decided as follows:
by
(1 Hill isenjoined from a wood-burning charcoal grillin violation of the New
1) Cherry using
York City Building Code;
Hill is enjoined from or garbage containers serving the
(12) Cherry removing re-locating
forth in Exhibit C to the 2013 sublease for reason; however, Lundy's
subject premises as set any
removal service so that garbage does notiunduly accumulate
must engage a regular garbage carting
in the area;
update the Court on its efforts in out open applications under
(13) Cherry Hill shall closing
Department of identification numbers: (i)321267847 for plumbing; (ii)
the following NYC Building
321578903 for fire and!(iv) 321397859 for
321267847 for flood zone compliance; (iii) suppression;
charcoal grillsand exhaust system at the conference on May I5, 2018;
Lundy's to supplement itsanswer with counterclaims; and
(14) leave is granted to
injunctive reliefagainst Hill is otherwise denied.
that Lundy's motion for Cherry
(15)
This constitutes the Decision and Order of the Court.
E N T E R,
Sylvia G. Ash, J.S.C.
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FILED: KINGS COUNTY CLERK 05/03/2018 11:10 AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 345 RECEIVED NYSCEF: 05/03/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------X X CHERRY HILL GOURMET, INC., : : Plaintiff, : : Index No. 510844/16 -against- : : NOTICE OF ENTRY LUNDY'S MANAGEMENT CORP., : : Defendant. : -----------------------------X X LUNDY'S MANAGEMENT CORP., : : Defendant and : Third-Party Plaintiff, : -against- : : SHEEPSHEAD RESTAURANT ASSOCIATES, : INC., : : Third-Party Defendant. : -----------------------------X X PLEASE TAKE NOTICE, that the within is a true copy of the Decision and Order (Ash, J.) duly entered in the office of the Clerk of the within-named Court on April 4, 2018. Dated: New York, New York ROSENBERG & ESTIS, P.C. 2018 Attorneys for Defendant and Third-Party May 3, PlaintiffLundy's Management Corp. By: Gregory ong 733 Third Avenue New York, New York 10017 (212) 867-6000 RE<0539410001'2305430v1 1 of 5 FILED: KINGS COUNTY CLERK 05/03/2018 11:10 AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 345 RECEIVED NYSCEF: 05/03/2018 To: ZINGMAN & ASSOCIATES PLLC Attorneys for Plaintiff Cheny Hill Gourmet Inc. 110 East 42nd Street, 17th Floor New York, New York 10017 Attention: Mitchell S. Zingman, Esq. HAGAN, COURY 4 ASSOCIATES Attorneys for Third-Party Defendant Sheepshead Restaurant Associates Inc. 908 4th Avenue Brooklyn, New York 11232 Attention: William J. Coury, Esq. RE<05394300019305430v1 2 of 5 FILED: KINGS COUNTY CLERK 05/03/2018 11:10 AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 345 RECEIVED NYSCEF: 05/03/2018 FILED: KINGS COUNTY CLE NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 04/04/2018 At an IAS Term, Comm-11 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 3rd day of 2018. P R E S E N April, T: HON. SYLVIA G. ASH, Justice. ----- ----- -- - -- - ----- --------- --- - --- - ----X CHERRY HILL GOURMET, INC., Plaintiff, DECISIONAND ORDER - against - Index 0 510844/2016 LUNDY'S MANAGEMENT CORP., Mot.Seq. 3 & 4 Defendant. - -------------------- --- ------------ ---- --XX LUNDY'S MANAGEMENT CORP., Defendant and Third-Party Plaintiff, - against - l SHEEPSHEAD RESTAURANT ASSOCIATES, INC., Third-Party Defendant. - -- - -- - -- - -_ _ _ _ _ _ --- - -- -- -- -- - -- ----- -- - - X The following papers numbered 1 to 14 read herein: Papers Numbered Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 1 - 4 Afñdavits 5 - 11 Opposing (Affirmations) Affidavits (Affirmations) 12 - 14 Reply After oral argument and upon the foregoing papers, the motion by Defendant, LUNDY'S MANAGEMENT CORP. ("Lundy's"), for partial summary judgment against Plaintiff, CHERRY (" Hill" HILL GOURMET, INC. ("Cherry Hill") and todismiss Cherry Hill's affirmative defenses isdecided as follows: (1) summary judgment as to Lundy's firstcounterclaim for contractual indemnity isdenied; 1 of 3 3 of 5 FILED: KINGS COUNTY CLERK 05/03/2018 11:10 AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 345 RECEIVED NYSCEF: 05/03/2018 FILED : KINGS COUNTY CLERK 04 / 04 / 2018 01 : 07 PM inx wu. m a l ue u1e NYSCEF DÓC. NO. 341 RECEIVED NYSCEF: 04/04/2018 (2) summary judgment as to Lundy's second counterclaim a judgment seeking declaratory that "Cherry Hill breached itsobligations under the Subleases, the and all Zoning Resolution, applicable laws and store" by illegally using operating the Premises as a Use Group 6 food isdenied, and, further, said counterclaim is dismissed as Lundy's can be afforded a full and adequate remedy under itsclaim for breach of contract; (3) summary judgment is granted in favor of Lundy's on itsthirdcounterclaim for breach of contract with regards to the breaches asserted in paragraphs 87-94 of Lundy's Answer with Counterclaims but is otherwise denied; (4) summary judgment is granted in favor of Lundy's on its twenty-fourth counterclaim seeking attorney's fees to the extent that Lundy's may recover attorney's fees associated with the instant action stemming from Cherry Hill's breaches under the Subleases but that attorney's fees accrued in association with the prior bankruptcy and nonpayment proceedings may not be recovered in this proceeding (see Wavertree Corp. v 136 Waverly Assocs., 258 AD2d 392, 392 [1st Dept 1999]); judgment as to Lundy's eighth and ninth counterclaims for breach of contract (5) summary and judgment to Cherry Hill's alleged failure to pay $99,622.55 in real estate declaratory relating taxes is denied without prejudice to renew. The Court cannot discern from the evidence submitted what period of time was covered the $1 15,863.44 real estate tax payment set forth in the March by 18, 2015 stipulation; judgment isdeniedas to Lundy's tenth counterclaim for breach of contract but (6) summary granted as to Lundy's eleventh counterclaim for judgment regarding the return of atleast declaratory 10 spaces to Lundy's pursuant to Paragraph 16.8 of the 2007 Sublease, and as incorporated parking the2011 and 2013 and the parties are directed to comply with the foregoing lease by Subleases, provision. Hill failed to raise an issue as to whether Lundy's waived the "no oral Cherry modification" proof of the alleged $200,000 clause because itfailed to provide any payment; judgment is denied as to Lundy's twelfth counterclaim for breach of contract (7) summary but granted as to Lundy's thirteenth and fourteenth counterclaims to the extent that the Court finds that Paragraph 9.5 of the 2007 Sublease, and as incorporated by the 2011 and 2013 Subleases, requires Hill to install a water meter or submeter in the Sublease Premises and that Cherry Cherry Hill is directed to with said provision within 120 days of the date of this Order; comply 2 2 of 3 4 of 5 FILED: KINGS COUNTY CLERK 05/03/2018 11:10 AM INDEX NO. 510844/2016 NYSCEF DOC. NO. 345 RECEIVED NYSCEF: 05/03/2018 FILED : K COUNTY CLERK 04 04 2018 01:07 PM m im. a 1u m 4 a u1 6 NY£CEF" RECEIVED NYSCEF: 04/04/2018 dOC. NO. 341 (8) summary judgment is granted as to Lundy's twenty-second counterclaim seeking a declaratory judgment that the Subleases require Cherry Hill to pay its proportionate share of the Main Building's insurance expenses; (9) motion to dismiss Cherry Hill's affirmative defenses is granted as toCherry Hill's fifteenth affirmative defense but is otherwise denied; and (10) summary judgment dismissing Cherry Hill's eleventh cause of action under General Business Law §349 is granted and that Cherry Hill's eleventh cause of action is dismissed. The remainder of Lundy's motion for injunctive relief (motion sequence 4), tothe extent not decided this Court's short form order dated March 28, 2018, is decided as follows: by (1 Hill isenjoined from a wood-burning charcoal grillin violation of the New 1) Cherry using York City Building Code; Hill is enjoined from or garbage containers serving the (12) Cherry removing re-locating forth in Exhibit C to the 2013 sublease for reason; however, Lundy's subject premises as set any removal service so that garbage does notiunduly accumulate must engage a regular garbage carting in the area; update the Court on its efforts in out open applications under (13) Cherry Hill shall closing Department of identification numbers: (i)321267847 for plumbing; (ii) the following NYC Building 321578903 for fire and!(iv) 321397859 for 321267847 for flood zone compliance; (iii) suppression; charcoal grillsand exhaust system at the conference on May I5, 2018; Lundy's to supplement itsanswer with counterclaims; and (14) leave is granted to injunctive reliefagainst Hill is otherwise denied. that Lundy's motion for Cherry (15) This constitutes the Decision and Order of the Court. E N T E R, Sylvia G. Ash, J.S.C. 3 .3 of 3 i 5 of 5