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Splash, LLC v. Shullman Family Limited Partnership

Supreme Court, Westchester County

April 20, 2017

Splash, LLC, SPLASH MANAGEMENT GROUP, LLC, SPLASH BEDFORD HILLS, LLC, MARK CURTIS and CHRISTOPHER FISHER, Plaintiffs,
v.
Shullman Family Limited Partnership, ROBERT SHULLMAN, MICHAEL SHULLMAN and RUSSELL SPEEDERS CAR WASH, LLC, Defendants.

          George J. Calcagnini, Attorneys for Plaintiffs. Via NYSCEF

          Finger & Finger, A Professional Corporation Attorneys for Defendants Shullman Family Limited Partnership, Robert Shullman and Michael Shullman Via NYSCEF

          Litchfield Cavo LLP Attorneys for Defendant Russell Speeder's Car Wash, LLC Via NYSCEF

          LAWRENCE H. ECKER, J.

         The following papers numbered 1 through 83 were read on the motion of defendant Russell Speeder's Car Wash, LLC ("Speeder") [Mot. Seq. 11], made pursuant to CPLR 3212, for summary judgment dismissing the complaint and the imposition of sanctions, including attorney's fees, against Splash, LLC, Splash Management Group, LLC, Splash Bedford Hills, LLC, Mark Curtis and Christopher Fisher ("Plaintiffs"), and the motion of the Shullman Family Limited Partnership, Robert Shullman and Michael Shullman ("SFLP" or "Defendants"), made pursuant to CPLR 3212 [Mot. Seq. 12] for summary judgment dismissing the complaint:

         PAPERS NUMBERED

         Speeder's Notice of Motion, Affirmation, Exhibits 1-18, 1 - 21

         Memorandum of Law

         SFLP's Notice of Motion, Affirmation, Affidavit, Affidavit, 22 -50

         Exhibits A-X, Memorandum of Law

         Affidavit in Opposition (to both motions), Affirmation, 51-79

         Affidavit, Affidavit, Exhibits A-X, Memorandum of Law, Speeder's Reply Affirmation, Exhibits A-B 80-82

         SFLP's Reply Memorandum of Law 83

         Upon the foregoing papers, the court determines as follows:

         The factual background of this case has been fully set forth in the prior orders of the court (Connolly, J.), dated, October 8, 2013, 11 Misc.3d 1217(A), and (Lefkowitz, J.), dated January 6, 2014. SFLP is the owner and was formerly the landlord to plaintiffs of the premises located at 527 North Bedford Road, Bedford Hills, New York. Plaintiffs are affiliated limited liability companies and their principal members who formerly operated a car wash at the premises. During the final extension on their lease that was due to expire on April 30, 2013, and after both parties knew the lease would not be renewed, plaintiffs signed a lease in 2010 for new premises at 562-570 North Bedford Road to move their car wash business to that location, a short distance from the original premises. The new lease was made contingent upon plaintiffs obtaining the required variances, permits, and approvals from the Town of Bedford Zoning Board of Appeals and Planning Board to allow the plaintiffs to construct and operate a car wash at the new location. Plaintiffs sought and eventually obtained the required municipal approvals to develop the property.

         Plaintiffs commenced the instant action against defendants on April 30, 2013, the same day as the lease at 527 North Bedford Road was due to expire. Plaintiffs allege causes of action for tortious interference with business relations, breach of implied covenant of good faith, intentional property damage, negligent property damage and failure to return security deposit. Specifically, plaintiffs allege the municipal hearing and approval process was delayed as a result of the defendants' actions in secretly soliciting Dino DeFeo and Greg DiNapoli, two local residents objecting to plaintiff's application before the Town of Bedford Zoning Board of Appeals ("ZBA") and Planning Board. Plaintiffs allege defendants did so in an effort to cause the plaintiffs economic harm by preventing them from relocating their car wash business. Plaintiffs allege that the defendants acted in bad faith and with actual malice by secretly retaining a land use attorney and various experts, including traffic and noise experts, to have DeFeo and DiNapoli oppose the plaintiffs' applications and file legal proceedings to stop or delay the plaintiffs from establishing their car wash at the new location. The plaintiffs further allege that the defendants instructed the land use attorney and the experts to fraudulently misrepresent to the officials of the Town of Bedford that they had been hired and retained by DeFeo and DiNapoli, when they were, in fact selected, hired, retained, and paid by the defendants.

         Plaintiffs further claim that as the result of the defendants' bad faith actions in opposing, obstructing, and delaying the approval process, plaintiffs failed to receive the necessary variances, special use permits, and site plan approval with sufficient time to build their car wash at the new location and re-establish their business before their lease expired on April 30, 2013, which forced them to hold over in the former leased premises with defendants. Plaintiffs allege defendants acted with actual malice and with the intent to cause the plaintiffs economic harm in that the defendants planned to open their own car wash business at the existing location and misappropriate the plaintiffs' customers and business to themselves.

         Plaintiffs also assert causes of action for intentional and negligent property damage, claiming that they sustained property damage when the defendants' agents or employees intentionally, carelessly, or negligently punctured the waterproof materials on the roof of the premises while performing a site inspection in March 2013, which caused extensive quantities of water to leak into the premises. They also seek the return of their original security deposit with interest.

         After the Town of Bedford ("Town") approved plaintiffs' land use applications for the new business location, nonparty Dino DeFeo commenced an Article 78 proceeding against Bedford and certain of the plaintiffs to annul the Town's determination. (DeFeo v Zoning Board of Appeals, Town of Bedford, Index No. 1178/2013). By Decision and Order, dated October 4, 2013, this Court (Zambelli, J.) denied so much of DeFeo's Article 78 petition as sought to annul the Planning Board's "negative declaration" under the State Environmental Quality Review Act (SEQRA), but annulled the Town's determination to grant use variances, holding the Zoning Board of Appeals had granted them without rational basis. The court also vacated as moot the area variances, special use permits and site plan. Both sides appealed. On March 23, 2016, the judgment was affirmed by the Appellate Division, Second Department [137 A.D.3d 1123].

         After plaintiffs held over in their tenancy at the former premises following the lease expiration on April 30, 2013, a summary eviction proceeding ensued. The Bedford Town Court (Jacobson, J.) granted the eviction petition and plaintiffs vacated the premises by the stayed eviction date of September 30, 2013. They subsequently took occupancy and ...


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