This case is not published in a printed volume and its disposition appears in a table in the reporter.
Plaintiff, pro se: Sameul Youssof
Attorney for Defendant: Nativ Winiarsky, Esq. KUCKNER BRUH, LLP
Carolyn E. Demarest, J.
Upon the foregoing papers in this action by plaintiff Sidereal Studios (Sidereal) against 214 Franklin LLC (Franklin) for a declaratory judgment, a permanent injunction, and damages for an alleged breach of contract ( Sidereal Studios v. 214 Franklin LLC, Sup Ct, Kings County, index No. 12893/07 (action No.1), Sidereal moves, by order to show cause dated April 18, 2007, for an order, pursuant to CPLR 6312, enjoining and restraining Franklin, together with its agents, attorneys, servants, and employees, from: (1) entering, accessing, infringing upon, or otherwise interfering with its commercial space, located at Suite 101 (the demised premises) in the building at 214 Franklin Street, in Brooklyn, New York (the building) for the purpose of undertaking certain construction, alterations, renovations, improvements, and modifications to the building and the demised premises, including, but not limited to, the addition of a new floor, (2) taking back, ousting, evicting, reclaiming, and temporarily or permanently depriving it of any portion of the demised premises in connection with the alteration or otherwise, and (3) taking any other measures which will interfere with its use and occupancy of the demised premises.
Sidereal moves, in a second order to show cause dated July 10, 2007, for an order: (1) declaring a 15-day notice to cure dated June 29, 2007, served on it by Franklin, null and void and of no force and effect, and/or striking the notice to cure in its entirety, in light of a temporary restraining order issued by the court on June 12, 2007, (2) temporarily, preliminarily, and permanently enjoining and restraining Franklin, together with its agents, attorneys, servants, employees, and anyone else acting on its behalf from taking any action to terminate, recover possession of, or otherwise interfere with its leasehold interest in the premises and/or to commence any summary proceeding to evict it from the demised premises based upon this notice to cure, (3) imposing an award of sanctions against Franklin for issuing and serving this notice to cure, which, it alleges, is frivolous, and in violation of the temporary restraining order, and (4) awarding it any other relief this court deems just and proper, including, but not limited to, an award of its legal fees, costs, and disbursements.
Franklin (by a September 7, 2007 cross motion) cross-moves, in action #1, for summary judgment dismissing Sidereal's complaint and granting its counterclaim for: (1) an order declaring that the parties' lease agreement provides it with the right of access to the demised premises for the purpose of installing two support columns, each approximately 1-1 foot square, (2) an order directing Sidereal to provide it with access to the demised premises for the installation of the two support columns, and (3) an order awarding it costs and attorneys' fees as provided in the lease.
In a second action by plaintiffs Sidereal and Samuel Youssof (Youssof) (who is the owner of Sidereal) for injunctive and declaratory relief regarding two notices to cure dated June 18, 2007, damages, and attorneys' fees ( Sidereal v. 214 Franklin LLC, Sup Ct, Kings County, index No. 24087/01 (action #2), Sidereal and Youssof move, by order to show cause filed July 3, 2007, for an order: (1) staying and tolling the running and expiration of the cure dates set forth in the two 15-day notices to cure dated June 18, 2007 that Franklin served upon them regarding the demised premises, pending a determination of the underlying merits of this action, (2) temporarily, preliminarily, and permanently enjoining and restraining Franklin, together with its agents, attorneys, servants, employees, and anyone else acting on its behalf, from taking any action to terminate, recover possession of, or otherwise interfere with Sidereal's leasehold interests in the premises and/or to commence any summary proceeding to evict Sidereal from the premises, and (3) awarding Sidereal any other relief this court deems just and proper, including, but not limited to, an award of Sidereal's legal fees, costs, and disbursements.
Franklin is the owner of a building, located at 214 Franklin Street, in Brooklyn, New York, solely occupied by commercial tenants. The two-story structure has an occupancy classification for manufacturing use. Plaintiff leases 1577 square feet of space.
Sidereal is a sole proprietorship, owned by Youssof, who is its president. Sidereal is engaged in the business of architectural woodwork and manufactures, among other things, cabinets, furniture, millwork, and paneling. On September 15, 2004, Sidereal entered into a written lease with Franklin to use and occupy the demised premises (Suite 101 on the first floor of the building) for "woodworking/cabinet space." The lease provides for a base rent of $1,764 per month for 2007. The term of the lease commenced on October 1, 2004 and ran until September 30, 2007. Pursuant to paragraph 60 of the rider to the lease, Sidereal was given an option to renew for two more years, but Franklin could terminate and void this option should Sidereal be found in default of any provision of the lease.
At the inception of Sidereal's tenancy in October 2004, Sidereal installed two ventilation fans in the wall of the demised premises, which operate to draw clean air from the hallway of the building into the demised premises. Sidereal maintains expensive bulky machinery (i.e., a cabinet saw, planer, jointer, drum sander, and line boring machine) and raw material and supplies (plywood, sheet goods, lumber exceeding 16 feet in length and hardware) at the demised premises. According to Sidereal, it fully utilizes every square foot of the demised premises for its business operations. As part of its tenancy, Sidereal also made use of a loading dock.
In 2006, Franklin, in order to sustain and enhance the economic viability of its building, decided to add a third floor to increase the amount of the building's rental space. Franklin's original architect, Scarano Architects, PLLC (Scarano) drafted plans. In May or June 2006, Scarano's plans and applications for permits to undertake construction were submitted by Franklin to the New York City Department of Buildings (the DOB). In November 2006, Franklin commenced construction at the building. On November 15, 2006, Franklin received a stop work order for work without a permit from the DOB, but on January 11, 2007, Franklin received the required permit for the alterations. On January 30, 2007, Franklin erected a sidewalk shed in the front of the building. According to Youssof, the narrow spacing of the support columns and low horizontal braces comprising the shed precluded vehicles from backing into the loading dock, rendering the loading dock useless to Sidereal to receive deliveries of materials, such as plywood, lumber, and finished woodwork.
In February 2007, Joseph Torres (Torres), the managing member of Franklin, advised Youssof of Franklin's plan to add a new floor to the building. He informed Youssof of Franklin's original plan, which was to permanently reclaim 307 square feet or 20% of the demised premises for installation of an interior stairwell to serve the new floor. Franklin claimed that it had the right to do so pursuant to paragraphs 13 and 44 of the lease. Paragraph 13 of the lease provides:
"Owner or Owner's agents shall have the right (but shall not be obligated) to enter the demised premises in any emergency at any time, and, at other reasonable times, to examine the same and to make such repairs, replacements and improvements as Owner may deem necessary and reasonably desirable to any portion of the building . . . Owner may during the progress of any work in the demised premises take all necessary materials and equipment into said premises without the same constituting an eviction, nor shall Tenant be entitled to an abatement of rent while such work is in progress, nor to any damages by reason of loss or interruption of business or otherwise."
Paragraph 44 of the rider to the lease provides:
"Tenant shall permit Landlord to erect, use, maintain and repair pipes, ducts, cables, conduits, plumbing, vents and wires to and through the demised premises, as and to the extent that Landlord now, or hereafter may, deem necessary or ...