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251 West 30th St. LLC v. 251 West 30th St. Owner, LLC

Supreme Court, New York County

March 31, 2017

251 West 30th St. LLC d/b/a Slake, Plaintiff,
v.
251 West 30th St. Owner, LLC, Defendant.

          For Plaintiff:Gordon & Rees LLP, Mark A. Trokan, Esq., Ronald A. Giller, Esq., Jennifer Guidea, Esq.

          For Defendant: Moses & Singer LLP, Henry J. Bergman, Esq.

          Hon. Charles E. Ramos J.S.C.

         In motion sequence 002, Defendant 251 West 30th St. Owner LLC ("Owner") moves for a preliminary injunction preventing plaintiff 251 West 30th St. LLC ("Tenant") from using the fire escape route ("Fire Egress") located at 251 West 30th Street ("Subject Premises") for non-emergency purposes.

         For the reasons set forth below, this Court grants Owner's motion for a preliminary injunction.

         Background

         The Subject Premises is a sixteen story structure with a variety of commercial tenants, including residents, a school, music studios, workshops, and offices. Tenant occupies space consisting of a ground floor store, a mezzanine, and the entire second floor (the "Venue").

         In 2004, non-parties Justin Tower, Ltd. ("Previous Owner") and SCB Enterprises LLC ("Previous Tenant") entered into a commercial lease (the "Lease"), in which the Previous Owner leased the Venue to the Previous Tenant for a term of ten years commencing on December 1, 2004, with two five-year extension options. The Lease describes the Venue as "excluding public areas" of the Subject Premises (Ballinger Aff., Exh. B).

         By assignment and assumption of the Lease between the Previous Tenant and Tenant dated January 23, 2014, and with consent of Previous Owner, the Lease was assigned to the Tenant. Tenant maintains that it properly and effectively extended the initial term of its ten-year lease (Ballinger Aff., ¶4). In contrast, Owner alleges that Tenant did not effectively renew the Lease due to its failures to cure at least seven Department of Buildings ("DOB") violations (Nocera Aff., ¶4).

         Tenant further alleges that it has spent approximately $1.8 million on improvements and operation costs (Ballinger Aff., ¶2). The Previous Owner purportedly made improvements to the West 30th Street Staircase and corridor by painting the walls and floors and installing electronic displays (Ballinger Aff., ¶15).

         Paragraph 6 of the Lease, entitled Requirements of Law, Fire Insurance, provides, in relevant part:

Tenant, at Tenant's sole cost and expense, shall promptly comply with all present and future laws, orders and regulations of all state, federal, municipal and local governments, departments, commissions and boards and any direction of any public officers pursuant to law, and all orders, rules and regulations of the New York Board of Fire Underwriters or the Insurance Services Office, or any similar body which shall impose any violation, order or duty upon Owner or Tenant with respect to the demised premises... Tenant shall not do or permit any act or thing to be done in or to the demised premises which is contrary to law, or which will invalidated or be in conflict with public liability, fire or other policies of insurance at any time carried by or for the benefit of Owner. (Id.)

         Paragraph 41(b) of the Rider attached to the Lease ("Rider") requires Tenant to conduct its business in an orderly manner to avoid unreasonable annoyance, discomfort, and/or injury to other tenants, patrons, pedestrians, and adjacent residents (Id.).

         Paragraph 42(o) of the Rider provides, in relevant part, that "Tenant acknowledges and agrees that it will not block, or permit to be blocked, egress and ingress to the freight ...


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