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Seventh Avenue Associates v. 176 Broadway Owners Corp.

Sup Ct, New York County

May 29, 2013

SEVENTH AVENUE ASSOCIATES, Plaintiff,
v.
176 BROADWAY OWNERS CORP., Defendant Index No. 103889/12

Unpublished Opinion

Subm.; 1/9/13

For plaintiff: Robert G. Silversmith, Esq. Silversmith & Assocs. Law Firm, PLLC

For Defendant Brett L. Carrick Esq. Cantor, Epstein & Mazzola, LLP

PRESENT: BARBARA JAFFE, J.S.C.

DECISION AND ORDER

BARBARA JAFFE, J.:

By order to show cause dated September 27, 2012, plaintiff moves for an order enjoining defendant: (1) to allow plaintiffs subtenant, Varocco Maiden, LLC (Pronto Pizza) to perform and complete renovations and alterations to the premises leased by plaintiff; (2) from obstructing or interfering with Pronto Pizza's renovations and alterations; (3) from tortiously interfering with the lease between plaintiff and its subtenants; (4) to allow plaintiffs subtenant, Capital One Bank (Bank), to comply with American Disabilities Act (ADA) requirements for the leased premises; and (5) to execute Owner's authorizations on New York City Department of Buildings (DOB) and other governmental applications as required to enable Pronto Pizza to perform alterations and open for business; and also declaring that the Lease and Offering Plan provide that defendant's consent is not required as a predicate to alterations, except for waste, and that the renovations and alterations at issue here do not constitute waste. Defendant opposes.

By order to show cause dated October 19, 2012, defendant moves for an order enjoining plaintiff from performing or permitting Pronto Pizza from performing any renovation, alteration or construction within the demised premises and directing it to cease any renovation, alteration or construction pending a determination on plaintiffs order to show cause. Plaintiff opposes.

The motions are consolidated for disposition.

I. PERTINENT BACKGROUND

The building at issue was previously owned by 176 Broadway Owners Corp. (Owners Corp.), of which Harold Thurman was a principal. By lease signed in October 1980, Owners Corp. leased to 176 Broadway Builders Corp., of which Thurman was also a principal, the ground floor commercial space and basement in the building for a 50-year term. The lease contains no restriction on alterations. (Affidavit of Brad Thurman, dated Sept. 19, 2012 [Thurman Affid.]).

Subsequently, the building was converted to a cooperative. An offering plan to create the cooperative, dated November 2, 1979, mentions the lease, and provides that the landlord/co-op is required to comply with all of the landlord's obligations under the lease. (Id., Exh. D).

Sometime thereafter, Builders Corp. assigned the lease to Thurman and Patrick Consalves. (Id., Exh. A). And on December 29, 1991, Thurman and Consalves assigned the lease to 176 Funding Corp. (Funding Corp.), which thereafter, by agreement dated August 1, 1994, assigned the lease to plaintiff. (Id.). All of the assignments provide that the assignee obtains the lease subject to the rents, covenants, ...


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