Preview
FILED: KINGS COUNTY CLERK 10/12/2017 05:19 PM INDEX NO. 510844/2016
NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 10/12/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
X
CHERRY HILL GOURMET, INC.,
Index No.: 510844/16
Plaintiff,
NOTICE OF MOTION FOR
-against- PARTIAL SUMMARY
: JUDGMENT AND TO DISMISS
LUNDY'S MANAGEMENT CORP., : AFFIRMATIVE DEFENSES
Defendant.
X
LUNDY'S MANAGEMENT CORP.,
Defendant and
Third-Party Plaintiff,
-against-
SHEEPSHEAD RESTAURANT ASSOCIATES, INC., :
Third-Party Defendant. :
X
PLEASE TAKE NOTICE, that upon the annexed affidavit of George Kazantzis,
sworn to on September 29, 2017, the exhibits attached thereto, the Rule 19-A Statement of
Material Facts, dated September 29, 2017, the memorandum of law, dated September 29, 2017,
and all prior proceedings had herein, defendant Lundy's Management Corp. ("Lundy's") will
move this Court at Commercial Part 11, Room 541, in the Courthouse located at 360 Adams
Street, Brooklyn, New York, at 9:30 a.m. on November 8, 2017, or as soon thereafter as counsel
can be heard, for an order and judgment:
(a) Pursuant to CPLR 3212, granting Lundy's partial summary judgment as to
liability on its first counterclaim for contractual indemnity and directing a
hearing to determine the amount of Lundy's' damages including interest,
reasonable attorneys' fees, costs, and disbursements;
(b) Pursuant to CPLR 3212, granting Lundy's summary judgment on its
second counterclaim and declaring that Cherry Hill breached the subleases
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by operating and using the premises as a Use 6 food store in violation of
the Zoning Resolution and applicable laws;
(c) Pursuant to CPLR 3212, granting Lundy's partial summary judgment as to
liability on its third counterclaim for Cherry Hill's breach of contract in
causing numerous violations and directing a hearing to determine the
amount of damages that Cherry Hill must pay Lundy's;
(d) Pursuant to CPLR 3212, granting Lundy's partial summary judgment as to
liability on its eighth counterclaim for Cherry Hill's breach of contract in
failing to pay its proportionate share of real estate taxes to Lundy's and
directing a hearing to determine the amount of damages that Cherry Hill
must pay Lundy's;
(e) Pursuant to CPLR 3212, granting Lundy's summary judgment on its ninth
counterclaim and declaring that:
(1) Pursuant to paragraphs 3.2 and 3.4 of the 2007 sublease, as
incorporated by the 2011 and 2013 subleases, Cherry Hill's
proportionate share of the real estate taxes for the period from July
2014 through June 2015 was not "due" until Lundy's issued a bill
for that period to Cherry Hill;
(2) The stipulation of settlement, dated March 18, 2015 (the
"Stipulation"), only settled the amount of real estate taxes that had
been billed to Cherry Hill and were "due through" March 18, 2015
and were in arrears, and that it did not settle any amount of real
estate taxes that Lundy's had not billed to Cherry Hill and were not
due or in arrears; and therefore
(3) Cherry Hill must pay Lundy's $99,622.55, representing Cherry
Hill's proportionate share of the real estate taxes from July 2014
through June 2015, plus interest and late fees;
(f) Pursuant to CPLR 3212, granting Lundy's partial summary judgment as to
liability on its tenth counterclaim for Cherry Hill's breach of contract in
failing to notify Lundy's which ten parking spaces that Cherry Hill
proposes to return to Lundy's as required by the subleases and depriving
Lundy's of the use of those ten parking spaces, and directing a hearing to
determine the amount of damages that Cherry Hill must pay Lundy's;
(g) Pursuant to CPLR 3212, granting Lundy's summary judgment on its
eleventh counterclaim and declaring that Cherry Hill must comply with
the subleases by notifying Lundy's and identifying at least ten parking
spaces that Cherry Hill proposes to return to Lundy's and that Cherry Hill
must cease using such spaces if they are accepted by Lundy's;
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(h) Pursuant to CPLR 3212, granting Lundy's partial summary judgment as to
liability on its twelfth counterclaim for Cherry Hill's breach of contract in
failing to install either a water meter or a submeter in the premises, and
directing a hearing to determine the amount of damages that Cherry Hill
must pay Lundy's;
(i) Pursuant to CPLR 3212, granting Lundy's summary judgment on its
thirteenth counterclaim and declaring that Cherry Hill must comply with
the subleases and the Stipulation and install a water meter or a submeter in
the premises;
0) Pursuant to CPLR 3212, granting Lundy's summary judgment on its
fourteenth counterclaim for a permanent injunction directing Cherry Hill
to immediately install either a water meter or a submeter in the premises;
(k) Pursuant to CPLR 3212, granting Lundy's summary judgment on its
twenty-second counterclaim and declaring that Cherry Hill must pay
Lundy's for Cherry Hill's proportionate share of the insurance expenses
for the main building pursuant to the subleases;
Pursuant to CPLR 3212, granting Lundy's partial summary judgment as to
liability on its twenty-fourth counterclaim for attorneys' fees, costs, and
expenses, and directing a hearing to determine the amount of fees, costs,
and expenses that Cherry Hill must pay Lundy's;
(m) Pursuant to CPLR 3212, granting Lundy's summary judgment on its
twelfth affirmative defense dismissing Cherry Hill's eleventh cause of
action;
(n) Pursuant to CPLR 3211(b), dismissing Cherry Hill's twenty-six
affirmative defenses; and
(o) Awarding Lundy's such other and further relief as is appropriate.
PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214(b),
answering papers, if any, and any notice of cross-motion, with supporting papers, if any, must be
served upon the undersigned at least seven (7) days prior to the return date of this motion.
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Dated: New York, New York ROSENBERG & ESTIS, P.C.
September 29, 2017 Attorneys for Lundy's .
By:
Brett B. Theis
733 Third Avenue
New York, New York 10017
(212) 867-6000
To: ZINGMAN & ASSOCIATES PLLC
Attorneys for Cherry Hill
110 East 42nd Street, 17th Floor
New York, New York 10017
(212) 207-3825
HAGAN, COURY & ASSOCIATES
Attorneys for Third-Party Defendant
Sheepshead Restaurant Associates Inc.
908 4th Avenue
Brooklyn, New York 11232
(718) 788-5052
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Preview
FILED: KINGS COUNTY CLERK 10/12/2017 05:19 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 10/12/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X CHERRY HILL GOURMET, INC., Index No.: 510844/16 Plaintiff, NOTICE OF MOTION FOR -against- PARTIAL SUMMARY : JUDGMENT AND TO DISMISS LUNDY'S MANAGEMENT CORP., : AFFIRMATIVE DEFENSES Defendant. X LUNDY'S MANAGEMENT CORP., Defendant and Third-Party Plaintiff, -against- SHEEPSHEAD RESTAURANT ASSOCIATES, INC., : Third-Party Defendant. : X PLEASE TAKE NOTICE, that upon the annexed affidavit of George Kazantzis, sworn to on September 29, 2017, the exhibits attached thereto, the Rule 19-A Statement of Material Facts, dated September 29, 2017, the memorandum of law, dated September 29, 2017, and all prior proceedings had herein, defendant Lundy's Management Corp. ("Lundy's") will move this Court at Commercial Part 11, Room 541, in the Courthouse located at 360 Adams Street, Brooklyn, New York, at 9:30 a.m. on November 8, 2017, or as soon thereafter as counsel can be heard, for an order and judgment: (a) Pursuant to CPLR 3212, granting Lundy's partial summary judgment as to liability on its first counterclaim for contractual indemnity and directing a hearing to determine the amount of Lundy's' damages including interest, reasonable attorneys' fees, costs, and disbursements; (b) Pursuant to CPLR 3212, granting Lundy's summary judgment on its second counterclaim and declaring that Cherry Hill breached the subleases RE\87804\0002\2185202v3 1 of 4 FILED: KINGS COUNTY CLERK 10/12/2017 05:19 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 10/12/2017 by operating and using the premises as a Use 6 food store in violation of the Zoning Resolution and applicable laws; (c) Pursuant to CPLR 3212, granting Lundy's partial summary judgment as to liability on its third counterclaim for Cherry Hill's breach of contract in causing numerous violations and directing a hearing to determine the amount of damages that Cherry Hill must pay Lundy's; (d) Pursuant to CPLR 3212, granting Lundy's partial summary judgment as to liability on its eighth counterclaim for Cherry Hill's breach of contract in failing to pay its proportionate share of real estate taxes to Lundy's and directing a hearing to determine the amount of damages that Cherry Hill must pay Lundy's; (e) Pursuant to CPLR 3212, granting Lundy's summary judgment on its ninth counterclaim and declaring that: (1) Pursuant to paragraphs 3.2 and 3.4 of the 2007 sublease, as incorporated by the 2011 and 2013 subleases, Cherry Hill's proportionate share of the real estate taxes for the period from July 2014 through June 2015 was not "due" until Lundy's issued a bill for that period to Cherry Hill; (2) The stipulation of settlement, dated March 18, 2015 (the "Stipulation"), only settled the amount of real estate taxes that had been billed to Cherry Hill and were "due through" March 18, 2015 and were in arrears, and that it did not settle any amount of real estate taxes that Lundy's had not billed to Cherry Hill and were not due or in arrears; and therefore (3) Cherry Hill must pay Lundy's $99,622.55, representing Cherry Hill's proportionate share of the real estate taxes from July 2014 through June 2015, plus interest and late fees; (f) Pursuant to CPLR 3212, granting Lundy's partial summary judgment as to liability on its tenth counterclaim for Cherry Hill's breach of contract in failing to notify Lundy's which ten parking spaces that Cherry Hill proposes to return to Lundy's as required by the subleases and depriving Lundy's of the use of those ten parking spaces, and directing a hearing to determine the amount of damages that Cherry Hill must pay Lundy's; (g) Pursuant to CPLR 3212, granting Lundy's summary judgment on its eleventh counterclaim and declaring that Cherry Hill must comply with the subleases by notifying Lundy's and identifying at least ten parking spaces that Cherry Hill proposes to return to Lundy's and that Cherry Hill must cease using such spaces if they are accepted by Lundy's; 2 RE\87804\0002\2185202v3 2 of 4 FILED: KINGS COUNTY CLERK 10/12/2017 05:19 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 10/12/2017 (h) Pursuant to CPLR 3212, granting Lundy's partial summary judgment as to liability on its twelfth counterclaim for Cherry Hill's breach of contract in failing to install either a water meter or a submeter in the premises, and directing a hearing to determine the amount of damages that Cherry Hill must pay Lundy's; (i) Pursuant to CPLR 3212, granting Lundy's summary judgment on its thirteenth counterclaim and declaring that Cherry Hill must comply with the subleases and the Stipulation and install a water meter or a submeter in the premises; 0) Pursuant to CPLR 3212, granting Lundy's summary judgment on its fourteenth counterclaim for a permanent injunction directing Cherry Hill to immediately install either a water meter or a submeter in the premises; (k) Pursuant to CPLR 3212, granting Lundy's summary judgment on its twenty-second counterclaim and declaring that Cherry Hill must pay Lundy's for Cherry Hill's proportionate share of the insurance expenses for the main building pursuant to the subleases; Pursuant to CPLR 3212, granting Lundy's partial summary judgment as to liability on its twenty-fourth counterclaim for attorneys' fees, costs, and expenses, and directing a hearing to determine the amount of fees, costs, and expenses that Cherry Hill must pay Lundy's; (m) Pursuant to CPLR 3212, granting Lundy's summary judgment on its twelfth affirmative defense dismissing Cherry Hill's eleventh cause of action; (n) Pursuant to CPLR 3211(b), dismissing Cherry Hill's twenty-six affirmative defenses; and (o) Awarding Lundy's such other and further relief as is appropriate. PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214(b), answering papers, if any, and any notice of cross-motion, with supporting papers, if any, must be served upon the undersigned at least seven (7) days prior to the return date of this motion. 3 RE\87804\0002\2185202v3 3 of 4 FILED: KINGS COUNTY CLERK 10/12/2017 05:19 PM INDEX NO. 510844/2016 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 10/12/2017 Dated: New York, New York ROSENBERG & ESTIS, P.C. September 29, 2017 Attorneys for Lundy's . By: Brett B. Theis 733 Third Avenue New York, New York 10017 (212) 867-6000 To: ZINGMAN & ASSOCIATES PLLC Attorneys for Cherry Hill 110 East 42nd Street, 17th Floor New York, New York 10017 (212) 207-3825 HAGAN, COURY & ASSOCIATES Attorneys for Third-Party Defendant Sheepshead Restaurant Associates Inc. 908 4th Avenue Brooklyn, New York 11232 (718) 788-5052 4 RE\87804\0002\2185202v3 4 of 4