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LLC v. Lucky 168 Restaurant Corp.

Other Lower Courts

January 15, 2008

174 Mott Group, LLC, Petitioner,
v.
Lucky 168 Rest. Corp., A Restaurant known as "Jazzi Wok" Running 24 Feet along Broome Street and 30 feet along Mott Street and the basement thereat, Respondent.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

OPINION

Barbara Jaffe, J.

In this commercial nonpayment summary proceeding, petitioner seeks a final judgment awarding it possession of the above-listed premises and a judgment for rent and additional rent arrears, attorney fees, costs, and disbursements.

I. PROCEDURAL BACKGROUND

In a three-day rent demand dated August 17, 2007, petitioner notified respondent that it owed $54,225.35 in rent and additional rent for the subject premises for the period from June 2006 through August 2007, including real estate taxes and late fees. On or about September 5, 2007, petitioner commenced the instant proceeding.

In its answer, respondent denied the allegations set forth in the petition, interposed five affirmative defenses (inaccurate description of the subject premises contained in the pleadings, improper service of the predicate demand, no additional rent owed as to the basement premises, petitioner's failure to present it with bills for the real estate taxes, and constructive eviction), and a counterclaim for constructive eviction, seeking $250,000.

II. TRIAL EVIDENCE

Testifying for petitioner were two of its principals, Jenny Haim and Hesky Haim. Testifying for respondent was Ken Chin, respondent's owner's husband and general manager.

A. Petitioner's direct case

On June 22, 2005 and June 30, 2005, Funky Broome, Inc. assigned to respondent, with the consent of petitioner's predecessor in interest, leases it held to the store and basement premises at 176 Mott Street, New York, New York, respectively dated December 16, 1999 and June 8, 2000, each to expire November 30, 2009. (Pet. Exhs. 2, 3). Respondent took the premises, pursuant to paragraphs 46 and 45 of the respective riders to the leases, "as is" and without any representation or warranty with respect to the fitness of the premises for their intended uses or purposes. ( Id .).

Pursuant to paragraph 41 of the rider to the store lease, the monthly rent for the store was $6,083.26 from December 1, 2005 to November 30, 2006, $6,326.59 from December 1, 2006 to November 30, 2007, and $6,579.65 from December 1, 2007 to November 30, 2008. (Pet. Exh. 2). Pursuant to paragraph 41 of the rider to the basement lease, the monthly rent for the basement was $2,552.56 from June 1, 2005 to May 31, 2006, $2,680.19 from June 1, 2006 to May 31, 2007, and $2,814.20 from June 1, 2007 to May 31, 2008. (Pet. Exh. 3). In paragraph 44 of the rider to the store lease, respondent agreed to pay, annually and in advance, 10 percent of the annual increase in real estate taxes above the 1999/2000 base year ($60,826.16), as assessed for the entire premises. (Pet. Exh. 2).

Pursuant to paragraphs 27 of the store lease and basement lease, bills, statements, notices or communications from petitioner to respondent "shall be deemed sufficiently given or rendered if, in writing, delivered to [respondent] personally or sent by registered or certified mail addressed to [respondent] . . ." In paragraphs 42 of the riders to the store lease and basement lease, all sums and charges required to be paid in addition to the base rent are deemed additional rent and must be paid "within ten (10) days after presentation of a bill therefore [sic] by [petitioner] to [respondent]." Additionally, respondent agreed to include with each late payment a $100 late fee. (Pet. Exhs. 2, 3).

Respondent also agreed, in paragraphs 56 and 54, respectively, of the riders to the store lease and basement lease, that it would make, at its own cost and expense, all repairs within the premises to the plumbing and drainage system, and perform all work necessary for their proper maintenance as determined by petitioner. (Pet. Exhs. 2, 3). Further, in paragraphs 67 and 64, respectively, of the two riders, petitioner agreed to repair structural defects only, which the parties agreed would not include the sewer pipe from the main premises to the leased premises if any damages to it needing repair are caused by respondent's use only. ( Id .). Thus, although respondent is assigned the duty of repairing the plumbing and draining system within its premises, it is not responsible for repairs to the sewer pipe leading into its premises from the main premises unless it is the sole cause of the damage necessitating such repairs.

In paragraphs 66 and 63, respectively, of the two riders, respondent agreed that "[i]n the event the landlord successfully brings an action or special proceeding . . . [it] will pay to the landlord, as a consequence of such action or proceeding, the reasonable attorney's fees incurred by the landlord, but in no event less than $600.00 for each action or special proceeding." (Pet. Exh. 2).

By quitclaim deed dated November 27, 2006, petitioner purchased the demised premises. (Pet. Exh. 1). However, by letter dated February 14, 2006, which respondent acknowledges receiving, petitioner notified respondent that it was the new owner of the building as of February 13, 2006, and ...


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