Danzig Scherer Hyland & Perretti, LLP, New York, NY
(Michael R. O'Donnell, Bethany A. Abele, and Michael P.
Crowley of counsel), for appellants-respondents.
& Associates, PLLC, Nanuet, NY (Brian K. Condon and Amy
M. Mara of counsel), for respondent-appellant.
WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS ROBERT J. MILLER
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action for a judgment declaring the rights of the parties
with respect to certain leased premises, the defendants
appeal, as limited by their brief, from so much of an order
of the Supreme Court, Orange County (Slobod, J.), dated May
21, 2015, as denied their motion, inter alia, for summary
judgment on their counterclaims and, in effect, to
preliminarily enjoin the plaintiff from remaining in the
leased premises, and the plaintiff cross-appeals, as limited
by his brief, from so much of the same order as denied that
branch of his cross motion which was for summary judgment
dismissing the defendants' counterclaims.
that the order is affirmed insofar as appealed and
cross-appealed from, without costs or disbursements.
plaintiff is a tenant of the defendants, Chelsea GCA Realty
Partnership, L.P., and CPG Partners, L.P. (hereinafter
together the Landlord), in the Woodbury Common Premium
Outlets (hereinafter the Shopping Center), where the
plaintiff operates an Au Bon Pain store in an approximately
2, 600-square-foot space in the food court. As part of a
renovation of the Shopping Center, the Landlord plans to
demolish the existing food court and build a new one in a
different location. The plaintiff's lease, which is set
to expire on May 31, 2018 (hereinafter the lease), contains a
relocation provision, Article XIV, stating, in part, that
"in the event the Demised Premises consist of 1, 500
square feet of space or less, Landlord shall be entitled to
relocate [the plaintiff] as provided in the Article if
Landlord determines that relocation of [the plaintiff] is in
the best interest of the Shopping Center in the conduct of
December 2014, the Landlord, relying on Article XIV of the
lease, notified the plaintiff of its intent to relocate him
to the new food court area, and indicated that if the
plaintiff elected to cancel the lease in lieu of accepting
the Landlord's offer, he was required to so notify the
Landlord within 10 days of his receipt of the notice. The
plaintiff has steadfastly opposed the Landlord's right to
invoke Article XIV and has refused to relocate or vacate the
premises. The plaintiff commenced this action for a judgment
declaring the parties' respective rights with respect to
lease, like any other contract, should be interpreted
according to the plain meaning of the language employed
(see Vermont Teddy Bear Co. v 538 Madison Realty
Co., 1 N.Y.3d 470, 475), and "courts should be
extremely reluctant to interpret an agreement as impliedly
stating something which the parties have neglected to
specifically include" (Rowe v Great Atl. & Pac.
Tea Co., 46 N.Y.2d 62, 72; Vermont Teddy Bear Co. v
538 Madison Realty Co., 1 N.Y.3d at 475 [internal
quotation marks omitted]). Here, in light of the language
used in Article XIV of the lease, as well as the undisputed
fact that the subject premises consist of approximately 2,
600 square feet, the Landlord has failed to establish, prima
facie, that it had the right to relocate the plaintiff
pursuant to Article XIV of the lease. Therefore, that branch
of the Landlord's motion which was for summary judgment
on its counterclaim for a judgment declaring that it was
entitled to terminate the lease by reason of the
plaintiff's breach of Article XIV was properly denied
without regard to the sufficiency of the plaintiff's
opposition papers (see Winegrad v New York Univ. Med.
Ctr., 64 N.Y.2d 851, 853).
the Landlord contends that the plaintiff is in default under
section 13.01(f) of the lease, which defines as an
"Event of Default" any "default by [the
plaintiff] or any affiliate of [the plaintiff] under any
other lease with Landlord or any affiliate of Landlord."
Specifically, the Landlord contends that another corporate
entity owned by the plaintiff, which had entered into a
short-term lease for a kiosk space within the Shopping Center
(hereinafter the kiosk lease), defaulted under the terms of
the kiosk lease, thereby automatically resulting in a
cross-default by the plaintiff pursuant to section 13.01(f)
of the lease. However, in its submissions in support of its
motion for summary judgment, the Landlord failed to eliminate
triable issues of fact regarding the existence of a default
under the kiosk lease. Moreover, the Landlord failed to
establish, prima facie, that it was entitled as a matter of
law to terminate the lease pursuant to section 13.01(f)
without giving prior notice of default to the plaintiff and
without affording the plaintiff any opportunity to cure.
Accordingly, that branch of the Landlord's motion which
was for summary judgment on its counterclaim for a judgment
declaring that it was entitled to terminate the lease by
reason of the plaintiff's breach of section 13.01(f) was
properly denied without regard to the sufficiency of the
plaintiff's opposition papers (see id. at 853).
Supreme Court also properly denied that branch of the
Landlord's motion which was, in effect, to preliminarily
enjoin the plaintiff from remaining in the leased premises. A
preliminary injunction will not be granted unless the movant
first establishes: (1) a likelihood of ultimate success on
the merits, (2) that irreparable injury will occur absent the
granting of the preliminary injunction, and (3) a balancing
of the equities in the movant's favor (see CPLR
6301). "[P]reliminary injunctive relief is a drastic
remedy which will not be granted unless a clear right thereto
is established under the law and the undisputed facts upon
the moving papers, and the burden of showing an undisputed
right rests upon the movant" (Hoeffner v John F.
Frank, Inc., 302 A.D.2d 428, 429-430 [internal quotation
marks omitted]). Applying these principles to the instant
case, the Landlord has failed to establish its entitlement to
the requested relief (see Kohn v Friedman, 71 A.D.3d
1095, 1096; Abinanti v Pascale, 41 A.D.3d 395, 396).
to the cross appeal, the plaintiff, in cross-moving for
summary judgment, failed to eliminate all triable issues of
fact regarding the Landlord's allegations that he
defaulted under section 13.01(f) of the lease. Accordingly,
that branch of the plaintiff's cross motion which was for
summary judgment dismissing the Landlord's counterclaims
was properly denied without regard to the sufficiency of the
Landlord's opposition papers (see Winegrad v New York
Univ. Med. Ctr., 64 N.Y.2d at 853).
plaintiff's remaining contentions either have been
rendered academic in light of our ...