On June 27, 2016 a
Exhibit,Appendix
was filed
involving a dispute between
Cherry Hill Gourmet, Inc.,
and
Lundy'S Management Corp.,
for Real Property - Other (Yellowstone Injunction)
in the District Court of Kings County.
Preview
FILED: KINGS COUNTY CLERK 12/11/2018 07:56 PM INDEX NO. 510844/2016
NY CEF
NYSCEF DOC.
DOC. NO.
NO. 341
353 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 12/11/2018
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 of 2018.
day April,
P R E S E N T:
HON. SYLVIA G. ASH,
Justice.
--- - -- - - -- - --------------------------- - -- -X
CHERRY HILL GOURMET, INC.,
Plaintiff, DECISION AND ORDER
- against -
. Index # 510844/2016
LUNDY'S MANAGEMENT CORP., . Mot.Seq. 3 & 4
Defendant.
------------ ---------------- ----- - - ------ -- X
LUNDY'S MANAGEMENT CORP.,
Defendant and
Third-Party Plaintiff,
- against -
SHEEPSHEAD RESTAURANT ASSOCIATES, INC.,
Third-Party Defendant.
---------- ------------------------·- - -- -
- ----- - -X
The following papers numbered_1_ to 14 read herein: Paners Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits Annexed 1 - 4
(Affirmations)
Affidavits 5 - 11
Opposing (Affirmations)
Affidavits 12 - 14
Reply (Affirmations)
After oral argument and upon the foregoing papers, the motion by Defendant, LUNDY'S
MANAGEMENT CORP. ("Lundy's"), for partial summmy judgment against Plaintiff. CHERRY
HILL GOURMET, INC. ("Cherry Hill") and to dismiss Cherry Hill's affirmative defenses isdecided
as follows:
(1) summary judgment as to Lundy'sfirst counterclaim for contractual indemnity is denied;
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(2) summary judgment as to Lundy's second counterclaim a
seeking declaratory judgment
that "Cherry Hill breached its obligations under the Subleases, the Zoning Resolution, and all
applicable laws by and the as store"
illegally using operating Premises a Use Group 6 food is denied,
and, further, said counterclaim is dismissed as Lundy's can be afforded a full and adequate remedy
under its claim for breach of contract;
(3) summary judgment is granted in favor of Lundy's on itsthird counterclaim 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 itstwenty-fourth counterclaim
seeking attorney's fees to the extent that Lundy's may recover attorney's fees associated with the
instant action stemming from Hill's breaches under the Subleases but that attorney's fees
Cherry
accrued in association with the prior bankruptcy and nonpayment proceedings not be recovered
may
in this proceeding (see Wavertree Corp. v 136 Assocs., 258 AD2d 392 [1st Dept
Waverly 392,
1999]);
(5) summary judgment as to Lundy's eighth and ninth counterclaims for breach of contract
and declaratory judgment relating to Cherry Hill's alleged failure to pay $99,622.55 in real estate
taxes is denied without prejudice to renew. The Court cannot discern from the evidence submitted
what period of time was covered by the $115,863.44 real estate tax payment set forth in the March
18, 2015 stipulation;
(6) summary judgment is denied as to Lundy's tenth counterclaim for breach of contract but
granted as to Lundy's eleventh counterclaim for declaratory judgment regarding the return of at least
10 parking spaces to Lundy's pursuant to Paragraph 16.8 of the 2007 Sublesse, and as incorporated
by the 2011 and 2013 Subleases, and the parties are directed to comply with the foregoing lease
provision. Cherry Hill failed to raise an issue as to whether Lundy's waived the "no oral
modification"
clause because itfailed to provide any proof of the alleged $200,000 payment;
(7) summary judgment is denied as to Lundy's twelfth counterclaim for breach of contract
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 Cherry Hill to install a water meter or submeter in the Sublease Premises and that Cherry
Hill is directed to comply with said provision within I20 days of the date of this Order;
2
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(8) summary judgment is granted as to Lundy's twenty-second counterclaim a
seeking
declaratory judgment that the Subleases require Hill to its proportionate share of the
Cherry pay
Main Building's insurance expenses;
(9) motion to dismiss Cherry Hill's affirmative defenses is granted as to Hill's
Cherry
fifteenth affirmative defense but is otherwise denied; and
(10) summary judgment di Hill's eleventh cause of action under General
smissing Cherry
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), to the extent not
decided by this Court's short form order dated March 28, 2018, is decided as follows:
(11) Cherry Hill is enjoined from using a wood-burning charcoal grillin violation of the New
York City Building Code;
Hill is enjoined from removing or re-locating garbage containers serving the
(12) Cherry
subject premises as set forth in Exhibit C to the 2013 sublease for any reason; however, Lundy's
must engage a regular garbage removal service so that garbage does not[unduly accumulate
carting
in the area;
Hill shall update the Court on itsefforts in closing out open applications under
(13) Cherry
the NYC Department of identification numbers: (i) 321267847 for plumbing; (ii)
following Building
for flood zone 321578903 for fire suppression; and (iv) 321397859 for
321267847 compliance; (iii)
charcoal grills and exhaust system at the conference on May 15, 2018;
leave is granted to Lundy's to supplement itsanswer with counterclaims; and
(14)
that Lundy's motion for injunctive relief against Hill is otherwise denied.
(15) Cherry
This constitutes the Decision and Order of the Court.
E N T E R,
Sylvia G. Ash, J.S.C.
3
.3 of 3
Document Filed Date
December 11, 2018
Case Filing Date
June 27, 2016
Category
Real Property - Other (Yellowstone Injunction)
Status
Disposed-Court Date/Application Pending
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FILED: KINGS COUNTY CLERK 12/11/2018 07:56 PM INDEX NO. 510844/2016 NY CEF NYSCEF DOC. DOC. NO. NO. 341 353 RECEIVED RECEIVED NYSCEF: NYSCEF: 12/11/2018 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 of 2018. day April, P R E S E N T: HON. SYLVIA G. ASH, Justice. --- - -- - - -- - --------------------------- - -- -X CHERRY HILL GOURMET, INC., Plaintiff, DECISION AND ORDER - against - . Index # 510844/2016 LUNDY'S MANAGEMENT CORP., . Mot.Seq. 3 & 4 Defendant. ------------ ---------------- ----- - - ------ -- X LUNDY'S MANAGEMENT CORP., Defendant and Third-Party Plaintiff, - against - SHEEPSHEAD RESTAURANT ASSOCIATES, INC., Third-Party Defendant. ---------- ------------------------·- - -- - - ----- - -X The following papers numbered_1_ to 14 read herein: Paners Numbered Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits Annexed 1 - 4 (Affirmations) Affidavits 5 - 11 Opposing (Affirmations) Affidavits 12 - 14 Reply (Affirmations) After oral argument and upon the foregoing papers, the motion by Defendant, LUNDY'S MANAGEMENT CORP. ("Lundy's"), for partial summmy judgment against Plaintiff. CHERRY HILL GOURMET, INC. ("Cherry Hill") and to dismiss Cherry Hill's affirmative defenses isdecided as follows: (1) summary judgment as to Lundy'sfirst counterclaim for contractual indemnity is denied; . 1 of 3 FILED: KINGS COUNTY CLERK 12/11/2018 07:56 PM INDEX Amon NO. mu. 510844/2016 alUo44/zU1b NYSCEF NYSCEF DÓC. DOC. NO. NO. 341 353 RECEIVED RECEIVED NYSCEF: NYSCEF: 12/11/2018 04/04/2018 (2) summary judgment as to Lundy's second counterclaim a seeking declaratory judgment that "Cherry Hill breached its obligations under the Subleases, the Zoning Resolution, and all applicable laws by and the as store" illegally using operating Premises a Use Group 6 food is denied, and, further, said counterclaim is dismissed as Lundy's can be afforded a full and adequate remedy under its claim for breach of contract; (3) summary judgment is granted in favor of Lundy's on itsthird counterclaim 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 itstwenty-fourth counterclaim seeking attorney's fees to the extent that Lundy's may recover attorney's fees associated with the instant action stemming from Hill's breaches under the Subleases but that attorney's fees Cherry accrued in association with the prior bankruptcy and nonpayment proceedings not be recovered may in this proceeding (see Wavertree Corp. v 136 Assocs., 258 AD2d 392 [1st Dept Waverly 392, 1999]); (5) summary judgment as to Lundy's eighth and ninth counterclaims for breach of contract and declaratory judgment relating to Cherry Hill's alleged failure to pay $99,622.55 in real estate taxes is denied without prejudice to renew. The Court cannot discern from the evidence submitted what period of time was covered by the $115,863.44 real estate tax payment set forth in the March 18, 2015 stipulation; (6) summary judgment is denied as to Lundy's tenth counterclaim for breach of contract but granted as to Lundy's eleventh counterclaim for declaratory judgment regarding the return of at least 10 parking spaces to Lundy's pursuant to Paragraph 16.8 of the 2007 Sublesse, and as incorporated by the 2011 and 2013 Subleases, and the parties are directed to comply with the foregoing lease provision. Cherry Hill failed to raise an issue as to whether Lundy's waived the "no oral modification" clause because itfailed to provide any proof of the alleged $200,000 payment; (7) summary judgment is denied as to Lundy's twelfth counterclaim for breach of contract 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 Cherry Hill to install a water meter or submeter in the Sublease Premises and that Cherry Hill is directed to comply with said provision within I20 days of the date of this Order; 2 2 of 3 FILED: KINGS COUNTY CLERK 12/11/2018 07:56 PM INDEX INUEX NO. NU. 510844/2016 01u094/zU10 NYSCEF" NYSCEF DOC. NO. 353 341 RECEIVED RECEIVED NYSCEF: 12/11/2018 dOC. NO. NYSCEF: 04/04/2018 (8) summary judgment is granted as to Lundy's twenty-second counterclaim a seeking declaratory judgment that the Subleases require Hill to its proportionate share of the Cherry pay Main Building's insurance expenses; (9) motion to dismiss Cherry Hill's affirmative defenses is granted as to Hill's Cherry fifteenth affirmative defense but is otherwise denied; and (10) summary judgment di Hill's eleventh cause of action under General smissing Cherry 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), to the extent not decided by this Court's short form order dated March 28, 2018, is decided as follows: (11) Cherry Hill is enjoined from using a wood-burning charcoal grillin violation of the New York City Building Code; Hill is enjoined from removing or re-locating garbage containers serving the (12) Cherry subject premises as set forth in Exhibit C to the 2013 sublease for any reason; however, Lundy's must engage a regular garbage removal service so that garbage does not[unduly accumulate carting in the area; Hill shall update the Court on itsefforts in closing out open applications under (13) Cherry the NYC Department of identification numbers: (i) 321267847 for plumbing; (ii) following Building for flood zone 321578903 for fire suppression; and (iv) 321397859 for 321267847 compliance; (iii) charcoal grills and exhaust system at the conference on May 15, 2018; leave is granted to Lundy's to supplement itsanswer with counterclaims; and (14) that Lundy's motion for injunctive relief against Hill is otherwise denied. (15) Cherry This constitutes the Decision and Order of the Court. E N T E R, Sylvia G. Ash, J.S.C. 3 .3 of 3