Preview
FILED: QUEENS COUNTY CLERK 03/10/2022 03:41 PM INDEX NO. 728594/2021
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/10/2022
"E"
EXHIBIT
FILED:
...-. QUEENS COUNTY ...- --
CLERK 03/10/2022
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NYSCEF
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05/18/2020
Short Form Order
FILED
5tl8/2020
NEW YORK SUPREME COURT-QUEENS COUNTY 12:15 PM
c0UNTY CLERK
QUEENSCOUNTY
Present: HONORABLE CHEREÉ A. BUGGS IAS PART 30
Justice
---------------------------------------------------------- Index No. 703206/2020
CAVALI NY, INC.,
Plaintiff, Motion
Date: March 11, 2020
-against-
Motion Cal. No.:
CIAMPA STEINWAY, LLC. Motion Sequence No.: 2
Defendant.
_________________________________..________________________
The following e-file papers numbered 14-23 and 25-40 submitted and considered on this
Order to Show Cause by plaintiff CAVALINY INC. (hereinafter referred to as "Plaintiff") seeking
an Order pursuant to Civil Practice Law and Rules (hereinafter referred to as "CPLR") 602(b) and
325 (b) removing and consolidating this action with the non-payment proceeding located in New
York City Civil Court, County of Queens, titled Ciampa Steinway LLC v Cavali NY Inc., bearing
Index No. 60821/ 2019 (hereinafterreferredto as the "Non-Payment Proceeding") and for such other
and further relief as this Court deems just and proper.
Papers
Numbered
Order to Show Cause- Memo of Law-Exhibits............. EF 14-23
Affinnation in Opp- Memo of Law- Exhibits............... EF 25-40
This is an action surrounding a lease agreement. On or about July 2, 2018, Plaintiff leased
the premises located at 36-21 Steinway Street, Long Island City, New York 11101 (hereinafter
referred to as the "Premises") from the defendant CIAMPA STEINWAY LLC (hereinafter referred
to as "Defendant") for the period of July 1, 2018 to June 30, 2028 (hereinafter referred to as the
"Lease"). Defendant alleges that pursuant to the terms of the lease Plaintiff was to begin paying rent
in October 2018 but failed to do so until 2019. Defendant instituted the Non-
February Therefore,
Payment Proceeding in the New York City Civil Court, County of Queens to collect rent due and
owing.
FILED: QUEENS COUNTY CLERK 03/10/2022 03:41 PM INDEX NO. 728594/2021
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CPLR 602 (b) states:
(b) Cases pending in different courts. Where an action is pending in the supreme
court itmay, upon motion, remove to itself an action pending in another court and
consolidate itor have ittried together with that in the supreme court. Where an action
is pending in the county court, it may, upon motion, remove to itself an action
pending in a city, municipal, district or justice court in the county and consolidate it
or have ittried together with that in the county court.
CPLR 325(b) states:
(b) From court of limited jurisdiction. Where it appears that the court in which an
action ispending does not have jurisdiction to grant the relief to which the parties are
entitled, a court having such jurisdiction may remove the action to itself upon
motion. A waiver of jury trial in the first court is inoperative after the removal.
At issue is the provision of the lease which states:
"In addition, ifthe tenant's liquor license application is delayed for an administrative
investigation or hearing solely due to any alleged misconduct at the premises which
occurred prior to the execution of this lease, then no rent or additional rent shall be
completed."
due until such investigation or hearing is
hearing"
Plaintiff states that the State Liquor Authority ("SLA") held a "500 foot related to
the granting of a license for the Premises. Plaintiff argues, "[u]pon information and belief at the
relevant SLA hearing, the SLA noted that the subject premises proper had indeed been the subject
license."
of past complaints and this added greatly to the delay of granting of any SLA Therefore,
Plaintiff did not obtain the license until January 11, 2019 hence why they allegedly began making
rent payments in February of 2019.
Defendant argues the existence of three liquor licenses within 500 feet of each other is not
"misconduct"
but requires a hearing and does not prevent the issuance of a license. That, in
hearing"
accordance with the Lease, Plaintiff's rent was due upon the completion of the "500 foot
in October of 2018.
"Where common questions of law or fact exist, a motion to consolidate [pursuant to CPLR
602(b) ] should be granted absent a showing of prejudice to a substantial right by the party opposing
motion"
the (Hae Sheng Wang v Pao-Mei Wang, 96 AD3d 1005, 1009 [2d Dept 2012] citing Kally
v. Mount Sinai Hosp., 44 A.D.3d 1010 [2d Dept 2007]).
The crux of the Non-Payment Proceeding is the interpretation and application of the
aforementioned clause within the Lease. The crux of the action before this Court relies upon the
same. The Non-Payment Proceeding cannot be resolved unless a determination is made on whether
-2-
FILED: QUEENS COUNTY CLERK 03/10/2022 03:41 PM INDEX NO. 728594/2021
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Defendant committed any misconduct at the Premises, prior to the Lease, that sparked an
administrative investigation which delayed Plaintiff's application for a liquor license. Similarly, the
same questions need to be resolved for this Court to determine whether there was breach of contract,
breach of fiduciary duty, breach of covenant of good faith and fair dealing, unjust enrichment or
breach of warranty of suitability. Therefore itis,
ORDERED that the Non-Payment Proceeding, located in New York City Civil Court,
County of Queens titled Ciampa Steinway LLC v Cavali NY Inc., bearing Index No. LT 60821/ 2019,
shall be removed pursuant to CPLR 602 (b) to the Supreme Court Queens County and consolidated
forjoint trial;and it isfurther,
ORDERED, that the caption of this consolidate actions shall be as follows:
----------------------------------------------------------x Index No. 703206/2020
CAVALI NY, INC.,
Plaintiff,
-against-
CIAMPA STEINWAY, LLC.
Defendant.
----------------------------------------------------------x Index No. To be assigned
CIAMPA STEINWAY, LLC,
Petitioner,
-against-
CAVALI NY, INC.,
Respondent.
_________________________________________________________Ç
And itis further
ORDERED, that the Clerk of the New York City Civil Court, County of Queens, upon being
served with a copy of this Order with Notice of Entry and payment of any required fees, shall transfer
allpapers filed under Index number LT 60821/19 to the Clerk of the Supreme Court of the State of
New York, County of Queens; and itis further,
-3-
FILED: QUEENS COUNTY CLERK 03/10/2022 03:41 PM INDEX NO. 728594/2021
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ORDERED, that the movant shall serve a copy of this Order with Notice of Entry within
thirty (30) days of entry on allparties to the actions combined on the Clerk of the Supreme Court of
the State of New York, County of Queens and at the time of filing of the Notes of Issue, upon the
Clerk of the Trial Term office of the Supreme Court of the State of New York, County of Queens.
The foregoing constitutes the decision and Order of this Court.
Dated: May 15, 2020
Hon. Chereé A. Buggs, JSC
FILED
5n8t2020
12:14PM
COUNTYCLERK
QUEENSCOUNTY
-4-
Preview
FILED: QUEENS COUNTY CLERK 03/10/2022 03:41 PM INDEX NO. 728594/2021 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/10/2022 "E" EXHIBIT FILED: ...-. QUEENS COUNTY ...- -- CLERK 03/10/2022 --,...-, ...-...- 03:41 .... . PM INDEX NO. 728594/2021 NYSCEF NYSCEF DOC. DOC. NO. NO. 59 44 RECEIVED RECEIVED NYSCEF: NYSCEF: 03/10/2022 05/18/2020 Short Form Order FILED 5tl8/2020 NEW YORK SUPREME COURT-QUEENS COUNTY 12:15 PM c0UNTY CLERK QUEENSCOUNTY Present: HONORABLE CHEREÉ A. BUGGS IAS PART 30 Justice ---------------------------------------------------------- Index No. 703206/2020 CAVALI NY, INC., Plaintiff, Motion Date: March 11, 2020 -against- Motion Cal. No.: CIAMPA STEINWAY, LLC. Motion Sequence No.: 2 Defendant. _________________________________..________________________ The following e-file papers numbered 14-23 and 25-40 submitted and considered on this Order to Show Cause by plaintiff CAVALINY INC. (hereinafter referred to as "Plaintiff") seeking an Order pursuant to Civil Practice Law and Rules (hereinafter referred to as "CPLR") 602(b) and 325 (b) removing and consolidating this action with the non-payment proceeding located in New York City Civil Court, County of Queens, titled Ciampa Steinway LLC v Cavali NY Inc., bearing Index No. 60821/ 2019 (hereinafterreferredto as the "Non-Payment Proceeding") and for such other and further relief as this Court deems just and proper. Papers Numbered Order to Show Cause- Memo of Law-Exhibits............. EF 14-23 Affinnation in Opp- Memo of Law- Exhibits............... EF 25-40 This is an action surrounding a lease agreement. On or about July 2, 2018, Plaintiff leased the premises located at 36-21 Steinway Street, Long Island City, New York 11101 (hereinafter referred to as the "Premises") from the defendant CIAMPA STEINWAY LLC (hereinafter referred to as "Defendant") for the period of July 1, 2018 to June 30, 2028 (hereinafter referred to as the "Lease"). Defendant alleges that pursuant to the terms of the lease Plaintiff was to begin paying rent in October 2018 but failed to do so until 2019. Defendant instituted the Non- February Therefore, Payment Proceeding in the New York City Civil Court, County of Queens to collect rent due and owing. FILED: QUEENS COUNTY CLERK 03/10/2022 03:41 PM INDEX NO. 728594/2021 NYSCEF NYSCE F DOC. DOC. NO. NO. 59 44 RECEIVED RECEIVED NYSCEF: NYSCEF: 03/10/2022 05/18/2020 CPLR 602 (b) states: (b) Cases pending in different courts. Where an action is pending in the supreme court itmay, upon motion, remove to itself an action pending in another court and consolidate itor have ittried together with that in the supreme court. Where an action is pending in the county court, it may, upon motion, remove to itself an action pending in a city, municipal, district or justice court in the county and consolidate it or have ittried together with that in the county court. CPLR 325(b) states: (b) From court of limited jurisdiction. Where it appears that the court in which an action ispending does not have jurisdiction to grant the relief to which the parties are entitled, a court having such jurisdiction may remove the action to itself upon motion. A waiver of jury trial in the first court is inoperative after the removal. At issue is the provision of the lease which states: "In addition, ifthe tenant's liquor license application is delayed for an administrative investigation or hearing solely due to any alleged misconduct at the premises which occurred prior to the execution of this lease, then no rent or additional rent shall be completed." due until such investigation or hearing is hearing" Plaintiff states that the State Liquor Authority ("SLA") held a "500 foot related to the granting of a license for the Premises. Plaintiff argues, "[u]pon information and belief at the relevant SLA hearing, the SLA noted that the subject premises proper had indeed been the subject license." of past complaints and this added greatly to the delay of granting of any SLA Therefore, Plaintiff did not obtain the license until January 11, 2019 hence why they allegedly began making rent payments in February of 2019. Defendant argues the existence of three liquor licenses within 500 feet of each other is not "misconduct" but requires a hearing and does not prevent the issuance of a license. That, in hearing" accordance with the Lease, Plaintiff's rent was due upon the completion of the "500 foot in October of 2018. "Where common questions of law or fact exist, a motion to consolidate [pursuant to CPLR 602(b) ] should be granted absent a showing of prejudice to a substantial right by the party opposing motion" the (Hae Sheng Wang v Pao-Mei Wang, 96 AD3d 1005, 1009 [2d Dept 2012] citing Kally v. Mount Sinai Hosp., 44 A.D.3d 1010 [2d Dept 2007]). The crux of the Non-Payment Proceeding is the interpretation and application of the aforementioned clause within the Lease. The crux of the action before this Court relies upon the same. The Non-Payment Proceeding cannot be resolved unless a determination is made on whether -2- FILED: QUEENS COUNTY CLERK 03/10/2022 03:41 PM INDEX NO. 728594/2021 NYSCEF NYSCEF DOC. DOC. NO. NO. 59 44 RECEIVED RECEIVED NYSCEF: NYSCEF: 03/10/2022 05/18/2020 Defendant committed any misconduct at the Premises, prior to the Lease, that sparked an administrative investigation which delayed Plaintiff's application for a liquor license. Similarly, the same questions need to be resolved for this Court to determine whether there was breach of contract, breach of fiduciary duty, breach of covenant of good faith and fair dealing, unjust enrichment or breach of warranty of suitability. Therefore itis, ORDERED that the Non-Payment Proceeding, located in New York City Civil Court, County of Queens titled Ciampa Steinway LLC v Cavali NY Inc., bearing Index No. LT 60821/ 2019, shall be removed pursuant to CPLR 602 (b) to the Supreme Court Queens County and consolidated forjoint trial;and it isfurther, ORDERED, that the caption of this consolidate actions shall be as follows: ----------------------------------------------------------x Index No. 703206/2020 CAVALI NY, INC., Plaintiff, -against- CIAMPA STEINWAY, LLC. Defendant. ----------------------------------------------------------x Index No. To be assigned CIAMPA STEINWAY, LLC, Petitioner, -against- CAVALI NY, INC., Respondent. _________________________________________________________Ç And itis further ORDERED, that the Clerk of the New York City Civil Court, County of Queens, upon being served with a copy of this Order with Notice of Entry and payment of any required fees, shall transfer allpapers filed under Index number LT 60821/19 to the Clerk of the Supreme Court of the State of New York, County of Queens; and itis further, -3- FILED: QUEENS COUNTY CLERK 03/10/2022 03:41 PM INDEX NO. 728594/2021 NYSCEF NYSCEF DOC. DOC. NO. NO. 59 44 RECEIVED RECEIVED NYSCEF: NYSCEF: 03/10/2022 05/18/2020 ORDERED, that the movant shall serve a copy of this Order with Notice of Entry within thirty (30) days of entry on allparties to the actions combined on the Clerk of the Supreme Court of the State of New York, County of Queens and at the time of filing of the Notes of Issue, upon the Clerk of the Trial Term office of the Supreme Court of the State of New York, County of Queens. The foregoing constitutes the decision and Order of this Court. Dated: May 15, 2020 Hon. Chereé A. Buggs, JSC FILED 5n8t2020 12:14PM COUNTYCLERK QUEENSCOUNTY -4-