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Neri's Land Improvement, LLC v. J. J. Cassone Bakery

September 29, 2009

NERI'S LAND IMPROVEMENT, LLC, ET AL., APPELLANTS,
v.
J. J. CASSONE BAKERY, INC., RESPONDENT.



In an action, inter alia, for a judgment declaring that a certain restrictive covenant is unenforceable and should be extinguished pursuant to RPAPL § 1951, the plaintiffs appeal (1) from an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated December 10, 2007, which denied that branch of their motion which was to deem the defendant's motion to dismiss the amended complaint abandoned pursuant to 22 NYCRR 202.48 and granted the defendant's cross motion to settle an order nunc pro tunc, and (2), as limited by their brief, from so much of an order of the same court, also dated December 10, 2007, as granted the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the amended complaint for failure to state a cause of action.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, RUTH C. BALKIN and ARIEL E. BELEN, JJ.

(Index No. 22775/06)

DECISION & ORDER

ORDERED that the first order dated December 10, 2007, is affirmed; and it is further,

ORDERED that the second order dated December 10, 2007, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The plaintiffs, Neri's Land Improvement, LLC (hereinafter Neri's Land) and Neri's Bakery Products, Inc. (hereinafter Neri's Bakery, and together with Neri's Land, Neri), operate a bakery on two parcels of property located in Port Chester, New York, and owned by Neri and/or its subsidiaries. The defendant, J.J. Cassone Bakery, Inc. (hereinafter Cassone), also operates a bakery in Port Chester on a parcel of property located approximately nine-tenths of a mile away from the two properties where Neri operates its bakery business.

In 1999 Cassone acquired title to a parcel of property situated between the two properties where Neri operates its bakery business (hereinafter the premises). Thereafter, in 2003, Cassone transferred the premises by deed to 41 Pearl Street Holding Company, LLC (hereinafter 41 Pearl Street). The deed contained a restrictive covenant prohibiting the use of the premises "as a bakery or for any purpose related or ancillary to a bakery" for a period of 50 years from the date of the deed. Subsequently, in 2006, 41 Pearl Street transferred the premises by deed to Neri's Land. In that deed, Neri's Land expressly acknowledged the existence of the restrictive covenant, which is set forth in the deed, and agreed to be bound by the restrictive covenant.

Neri commenced this action against Cassone, inter alia, for a judgment declaring that the restrictive covenant is unenforceable and should be extinguished pursuant to RPAPL 1951, as well as for injunctive relief and to recover damages based on Cassone's alleged violation of General Business Law § 340. Subsequently, Cassone moved to dismiss Neri's amended complaint. The Supreme Court, inter alia, granted the motion and directed the submission of an order on notice.

Thereafter, Neri moved, inter alia, to deem Cassone's motion to dismiss the amended complaint abandoned pursuant to 22 NYCRR 202.48 on the ground that Cassone had failed to settle an order on notice within 60 days. Cassone cross-moved to settle an order nunc pro tunc. The Supreme Court denied that branch of Neri's motion which was to deem Cassone's motion to dismiss the amended complaint abandoned pursuant to 22 NYCRR 202.48 and granted Cassone's cross motion to settle an order nunc pro tunc. Subsequently, the Supreme Court granted Cassone's motion pursuant to CPLR 3211(a)(7) to dismiss the amended complaint for failure to state a cause of action.

Under the circumstances, the Supreme Court providently exercised its discretion in denying that branch of Neri's motion which was to deem Cassone's motion to dismiss the amended complaint abandoned pursuant to 22 NYCRR 202.48 and in granting Cassone's cross motion to settle an order nunc pro tunc (see Parisi v McElhatton, 209 AD2d 495). Cassone set forth a valid excuse for the short delay, its actions were devoid of any intent to abandon the motion to dismiss, and there is nothing in the record showing that Neri was prejudiced by the brief delay (see Marzullo v General Motors Corp., 34 AD3d 540; Parisi v McElhatton, 209 AD2d at 495; cf. Seeman v Seeman, 154 AD2d 584).

The Supreme Court properly granted that branch of Cassone's motion which was to dismiss the first cause of action in Neri's amended complaint ...


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