18 Assocs., LLC v. Court St. Pizza, Inc.

Full title: 18 ASSOCIATES, LLC, Petitioner, v. COURT STREET PIZZA, INC. a/k/a Court…

Court: Civil Court, City of New York, Kings County.

Date published: Sep 8, 2017

66 N.Y.S.3d 653 (N.Y. Civ. Ct. 2017)

Opinion

No. 090111/2013.

09-08-2017

18 ASSOCIATES, LLC, Petitioner, v. COURT STREET PIZZA, INC. a/k/a Court Street Pizzeria, Inc. d/b/a Antonio's Pizzeria a/k/a Antonio's Pizza Café, "ABC Corporation," "XYZ, Inc.," Respondent.

Cornicello, Tendler & Baumel–Cornicello, LLP, New York, for petitioner. Eaton & Torrezano, LLP, Brooklyn, for respondent.

HARRIET L. THOMPSON, J.

Cornicello, Tendler & Baumel–Cornicello, LLP, New York, for petitioner.

Eaton & Torrezano, LLP, Brooklyn, for respondent.

HARRIET L. THOMPSON, J.

In or about July 25, 2013, 18 ASSOCIATES, LLC., by Mona Gora, as managing member, authorized the service of a Notice to Cure on the above-named Respondent. The Notice to Cure claims that the Respondent's use and occupation of the subject premises is in violation of Articles 35, 60, and rules and regulations number 5 and 6 of the lease agreement entered into between the parties dated May 24, 2011, based on the installation of signage, advertisement and lettering on the outside of the building without the Petitioner's prior written consent; in violation of Articles 3 and 45 of the lease in that the Respondent made alterations to the premises without the Petitioner's prior authorization and consent; in violation of Article 35 of the lease in that the Respondent obstructed and encumbered the sidewalk in front of the premises for purposes other than ingress or egress by placing a ‘sandwich sign’ outside the premises that leans against the building; in violation of Article 40 of the lease, the Respondent was using the premises for a purpose not permitted under the lease insomuch that the lease allows the Respondent to "use the premises for the preparation and sale, at retail, of pizza, Italian good, salads, deserts, related food items and non-alcoholic beverages and for no other purpose whatsoever" and the Respondent is selling gyros, wraps, buffalo wings, beef patties, French fries, breakfast sandwiches and soups; in violation of Articles 35, 40 and 87 of the lease, the Respondent is permitting odors to be emitted from the premises which is objectionable and interferes with the use and occupancy of the Petitioner, other occupants and tenants of the building; in violation of Articles 3 and 56 of the lease insomuch that there are two building permits for alterations under job number 320347530 and 320393132 which remain open without final signoffs by the Department of Buildings (hereinafter "DOB").

The notice further provides that pursuant to Article 17 of the lease that the Respondent was required to cure the above defaults on or before August 16, 2013, that being no less than 15 days after service of the notice. The notice explicitly says, "in order to cure the default under the lease, the tenant must ‘remove the signage, advertisement and lettering not previously approved in writing by the landlord, close out the open building permits, refrain from selling items not permitted by the lease and properly ventilating the premises to prevent odors from emanating out of the premises."

The affidavit of service executed on July 25, 2013 by Yvonne R. Yurnet affirms service of the Notice to Cure at the premises sought to be recovered, namely 32 Court Street, Ground floor retail space, Brooklyn, New York 11201 by certified mail and first class mail with certificate of mailing. Additionally, service was made on the named Respondent at 64 Burton Avenue, Staten Island, N.Y. 10309 by certified mail and by first-class mail with certificates of mailing. Proof of the certified mail receipts, dated July 25, 2013 to both of the aforementioned addresses by the above means are annexed to the pleadings.

On August 19, 2013, the Petitioner-corporation authorized the service of a Five Day Notice of Termination that terminated the Respondent's tenancy effective September 2, 2013 for the failure of the Respondent to (1) remove signage, advertisement and lettering on the outside of the premises; (2) obtain final approval and/or signoff from the Department of Buildings; (3) remove two open building permits for work performed at the premises; (4) remove items from the menu which are not permissible and (5) stop the discharge of odors from the premises.

The Notice of Termination was served by certified mail, return receipt and first-class mail with a certificate of mailing at the both above addresses.

When the Respondent did not surrender possession, the Petitioner authorized the service of the Notice of Petition and Petition. The pleadings were served by substituted service by delivering copies thereto to Frank Russo, a person of suitable age and discretion on September 10, 2013. The affidavit of service further provides that copies of the notice of petition and petition were served by certified mail, return receipt requested and by first-class regular mail on the same date to the above addresses.

The petition was noticed to be heard on September 20, 2013 in Commercial Part 52 at 10:00 a.m. and adjourned to October 11, 2013 for Respondent to interpose an answer by October 2, 2013.

The Respondent appeared by counsel and interposed an answer which contained nine affirmative defenses, to wit: the petition fails to adequately describe the premises sought to be recovered (first affirmative defense); the petition fails to state a cause of action upon which relief can be granted (second affirmative defense); Petitioner has breached the lease between the parties and the Respondents are relieved of the obligation to pay rent (third affirmative defense); the premises contained numerous violations due to acts or omission of the Petitioner and Petitioner has failed to repair the subject premises and the Respondent is relieved of the obligation to pay rent (fourth affirmative defense); the Petitioner has failed to secure the premises (fifth affirmative defense); Respondent is in full compliance with the lease agreement and has been at all times (sixth affirmative defense); the Petitioner's notice of petition and petition and notice of default and/or five day notices are defective (seventh affirmative defense); the Petitioner's notice of petition and petition and notice to cure and five day notice were not served pursuant to law (eighth affirmative defense); and the court does not have jurisdiction of the Respondent (ninth affirmative defense). The relief sought therein is dismissal of the petition, an order directing the Petitioner to cure violations and make all repairs at the subject premises by a date certain and for the legal fees.

On October 11, 2013, the parties, on consent, adjourned the case to November 7, 2013 after a court conference. It then appears that the case was adjourned to the undersigned by Judge K. Levine. Then, adjourned to December 19, 2013 for motion practice.

On October 9, 2013, the Petitioner had served a Notice of Motion returnable on October 11, 2013 seeking to dismiss the Respondent's affirmative defenses and for summary judgment. The Respondent submitted opposition papers dated December 6, 2013 and the Petitioner submitted reply papers dated December 18, 2013.

It appears that on the adjourned date of December 19, 2013, the matter was adjourned to January 28, 2014 at 2:30 p.m. for settlement negotiations. At that time, the Court order the payment of use and occupancy by the Respondent without prejudice. The Petitioner was required to provide a rent statement to substantiate all of the rent and additional rent due and owing to date. The Respondent agreed to retain an engineer inspect the subject premises for any defects and the undersigned judge agreed to perform inspection of the subject building and premises without notice to either side.

This case was adjourned to the following dates for reasons that are not relevant for this determination: January 28, 2014, February 1, 2014, April 1, 2014, May 19, 2014, June 11, 2014, June 24, 2014 and August 13, 2014.

For the sake of brevity, after several court conferences, the undersigned judge granted the Petitioner's motion to dismiss and for summary judgment to the extent that the first, second, fifth, seventh, eighth and ninth affirmative defenses were dismissed. The third and fourth affirmative defense and part of the sixth affirmative defense survived dismissal and the Court granted leave for the Respondent to supplement the fourth affirmative defense. Additionally, after a review and analysis of the Petitioner's supporting evidence found that pursuant to CPLR § 3212(g), the Petitioner substantiated the requisite elements of RPAPL § 741 and narrowed the issues for trial to the Respondent's violations of the above provisions of the lease agreement.

The Petitioner also served a Notice to Admit and the Respondent serve verified answers thereto; those documents are contained in the court file.

After the conference, the undersigned judge entered an interim order dated April 18, 2014, directing the Respondent to cease and desist utilizing the electrical wires, conduits, outlets, materials, equipment, and fixtures installed in the basement, and to cease and desist "cooking" food in the basement by using hot plates, cooktops or induction cooktop equipment pending a presentation of sufficient proof that such items were properly installed and were properly operated in accordance with the applicable laws and regulations with DOB and in accordance with the rental agreement.

This Court conducted a non-jury trial on the following dates: November 13, 2014, November 14, 2014, November 19, 2014, December 15, 2014, February 10, 2015 and February 11, 2015.

On the first date of trial, on November 13, 2014, the Petitioner called Rachel Tuckerman, Esq., as the first witness. She was employed by 18 ASSOCIATES, LLC as "in-house counsel" from May 13, 2013 through August 22, 2014.

During her testimony, the following documents were admitted into evidence on consent pursuant to the oral decision and order on the record on the motion to strike and for summary judgment by the Petitioner: Petitioner's Exhibit "1," a certified copy of the deed of ownership for the subject building; Petitioner's Exhibit "2," a lease agreement, rider and house rules and regulations, dated May 24, 2011, between 18 ASSOCIATES, LLC and COURT STREET PIZZA, INC. for the premises known as 32 Court Street, Retail space and basement known as Suite 101 and C–101, respectively; Petitioner's Exhibit "3" is a certificate of occupancy, dated May 10, 1968 hat authorize occupancy for stores (Use Group 6), an office building (23 stories) and a school (fifth floor); a drawing, dated November 28, 2011, for an alteration type 2 interior application for renovations by Respondent; and Petitioner's Exhibit "5, a drawing date dated April 22, 2011 for an alteration type 2 interior renovation application, for the interior renovation, plumbing work, no increase in bulk of far, no change in use or occupancy including the installation of the sprinkler system, the sprinkler risers, the proposed sprinklers as well as a drawing of the pizzeria; Petitioner's Exhibit "6, a certified copy of the renovation application submitted by the Respondent for the alteration type 2 for the subject premises which states that the application was approved on November 6, 2011 and signed off on October 16, 2013. In addition, Petitioner's Exhibit "7", a letter from the Borough Commissioner, referred to as a ‘letter of completion’ dated November 6, 2014, that explicitly states that the above application number 320347530, under block 255, lot 44, was signed off on October 16, 2013 and "because this job was filed as Directive 14 of 1975, the owner retained a registered professional engineer or a registered architect who certified that he or she inspected the work approved on this application and that it complies with the applicable laws, rules and regulations of the Department of Buildings. Based on the nature of the work filed on this application, a new certificate of occupancy is not required."; Petitioner's Exhibit "8," a certified copy of the Department of Buildings' application under job number 32039313 for the sprinkler system that was approved on March 1, 2013. The application states that it is an alteration type 2, new sprinkler application in conjunction with job number 320347530. Lastly, Petitioner's Exhibit "9", titled "Proposal" from New Skyline Exhaust and Ventilation, Inc. which states as follows: "installation of the following: two 18–gauge filter trap in pizza oven hood and two supplied and installed one 16x20 2–inch commercial carbon air filter for odor and chemical elimination" for a cost of $750.00 and underneath the above, it states that the services were paid in full on August 10, 2013.

In addition, the Court admitted into evidence as Court No. 1, Petitioner's Notice to Admit and as Court No. 2, the Respondent's verified response to the Notice to Admit.

The witness offered no testimony about the submission of the plans admitted as Exhibits "4" and "5" since they were prior to her employment. However, she testify that in August 2013, she went to the basement of the subject premises to investigate allegations about the improper operation of the Respondent's business. While on the inspection, she went into the basement of the pizzeria where she observed cooking equipment including a hot plate and saw food like tomato sauce.

The witness further testified that there were complaints about the pizzeria including the selling of unpermitted food items; a sign on the window; and the office building had a strong smell like grease and pizza. "We knew about the open permit that he had, so it just led us to investigate if there was anything else going on in the premises after we had knowledge of these infractions" (Tuckerman, Tr., p. 17, l.9–12). She testified that when she and the superintendent inspected the basement, they saw pots, pans and hot plates, strainers and tomato sauce. "There was actual cooking going on. There were food items and ingredients. It looked like a process of preparing food". (Tuckerman, Tr., p. 18, l.3–7). The witness further testified on the time that she was in the basement, they saw open cans of tomato sauce and tomatoes. "Items that needed to be cooked, prepared, dough, hot plates. There was no actual cooking when I was down there. But, these things I saw. (Tuckerman, Tr., p. 20, l.12–16).

The witness further testified that she went to the basement again before the end of 2013, after they had served a Notice to Cure and Notice of Termination, at one point, everything had been removed. The Respondent's agent fully cooperated with her after the service of the notice to cure and notice of termination by allowing access to the basement. She was unable to recall what she observed in the basement after the service of the predicate notices and had to refer to photographs, not yet admitted into evidence.

The Petitioner had marked as Exhibits "10–A" through "10–I," a series of photographs of the basement that were taken by her on December 27, 2013 and January 27, 2014. Since she took all of the photographs, after voir dire, they were admitted into evidence; the extraneous writings on the documents were redacted after objection. Although she testified that there was a microwave oven in the basement, none of the photographs depicted a microwave oven. She also observed three hot plates in total while in the basement but was not explicit about the time that she observed these items.

She further testified that she has been on the grounds floor of the property many times. During her inspection of the ground floor, she testified that she observed other items than pizza sold at the premises. "She saw fried foods, such as mozzarella sticks, calamari, maybe French fries. She couldn't be sure". (Tuckerman, Tr., p. 36, l.22–23). From the time that she was employed by the Petitioner until August 17, 2013, there were fried items sold at the premises and breakfast foods such as eggs, croissants, bagels, smoothies, and wheat grass shots.

The Petitioner offered into evidence Petitioner's Exhibit "11," a photograph taken on August 19, 2013 by the witness of menus on the ground floor in the pizzeria including breakfast and lunch sandwiches, and create your own salad.

Subsequently, the Petitioner admitted into evidence, without objection, Petitioner's Exhibits "12–A" and "12–B," photographs of different types of menus displayed on the ground floor of the subject premises on October 3, 2013.

She observed that all of the food products shown in Petitioner's "12–A" and 12–B" were sold at the subject premises from the beginning of her employment until the end of her employment. She, in fact, testified that "I got breakfast there." (Tuckerman, Tr., p. 44, l.9–12). She further said that when she purchased breakfast, she had eggs, sometimes a bagel, mostly eggs and coffee. The eggs were prepared on the same griddle or hot top as her earlier testimony. She further admitted that on the date of trial, she went to the premises to get some coffee and some eggs.

The Petitioner's Exhibit "13–A" (handwritten menu sign), Petitioner's Exhibit "13–B" (dirty a/c return, Petitioner's Exhibit "13–C" (photo of a staff worker and a cluttered counter near the cash register) and Petitioner's Exhibit "13–D" (photograph of a large pizza oven (four door oven) with boxes on the floor and litter), and Petitioner's Exhibit "14–A"—"14–E" (photographs of menu signs); Petitioner's Exhibit "14–F" (photographs of different types of bagels and cream cheeses) and Petitioner's Exhibit "14–G" and Petitioner's Exhibit "14–H" (Hot and cold sandwich signs) taken in or about October 17, 2014.

She didn't observe the sale of all the food items on the menus, but remembered people ordering fried calamari, mozzarella sticks and chicken wings. She admitted that she did not observe any food preparation at the demised premises except as stated above. For example, although she saw steaks, she said she only saw the food being heated up and not necessarily prepared at the location.

She also acknowledged observing the sign about the service of wheat grass. The witness was uncertain of when this sign was installed but did remember that it was one of the first things that the Respondent removed after service of the Notice to Cure and Notice of Termination. Although she acknowledged that the handwritten sign had been removed around August 2013, the wheat grass sign remained in the window throughout 2013 and 2014. The witness even believed that, at least as of the date of trial, she believed that the wheat grass sign still remains. (Tuckerman, Tr., p. 54, l.7–22).

Petitioner admitted into Exhibit "15–A" (handwritten announcement of new food items) and "15–B" (handwritten announcement of new food items and typed written marketing advertisement for "Honest–Tea").

She testified that the Respondent did not have permission from the Petitioner to install the menus in the window or in the storefront.

The parties agreed to admit Petitioner's Exhibit "16" (letter date June 9, 2014 regarding "condition of premises" from Rachel Tuckerman, Esq. to Sal Casaccio with four photograph of the storefront window dated June 3, 2014 and June 4, 2014 with written objections of the photographs including "sign affixed with scotch tape, fruit in window & plastic cups covers, must clean, address sign low quality, unauthorized stickers and signs on the door and white paper taped to cover unavailable items" and illegible writing in the corner of photo No.3.

Subsequently, Petitioner's Exhibit "17–A" (phelum ceiling), Petitioner's Exhibit "17–B" (hole in the drop ceiling near ductwork installed by Respondent), Petitioner's Exhibit "17–C" (mezzanine slab with holes patched and large hole open) and "17–D" (ceiling above Respondent's drop ceiling with electrical wiring coming from various part of the ceiling and walls above drop ceiling), taken by the witness on or about January 20, 2014. She testified that she gained access through the pizzeria by Sal Casaccio to take the photographs and had to use a ladder for that purpose. "We were investigating the smell, whether there was anything going on in the plenum that would lend itself to that (Tuckerman, Tr., p. 61, l.10–13).

Next, admitted into evidence was Petitioner's Exhibit "18", taken by the witness on January 17, 2014. The photograph depicted the outside of the premises. "The grill that was taken off the faXade. This is the duct that's coming from the plenum through—the tenant faces the outside". (Tuckerman, Tr., p. 62, l.11–14). In order to photograph this condition, the witness testified that "[w]e had to have the grill removed, take a wire, have the grill removed and the picture was taken." (Tuckerman, Tr., p. 63, l.15–17). The witness further testified that "[w]e had someone from Master Fire System Company to investigate the ductwork from the outside. So, he came and took off the grill, took the photographs." (Tuckerman, Tr., p. 64, l.18–21).

Subsequently, a letter, dated August 7, 2014, admitted as Petitioner's Exhibit "19", marked "hand-delivery" to the principal of the Respondent-corporation, state issues of a bamboo shade improperly installed in the window and other issues of cleanliness, not the issue with the vent or grille.

In reply, Petitioner's Exhibit "20", a letter from Sal Casaccio to Mona Gora, undated, requesting a meeting with Mona Gora, disputing the requirement to install the sprinkler system; concerns about the smell of pizza and his finding from his HVAC company that it is not the exhaust but the holes in the ceilings that allow the smell to travel to the elevator shafts; his lack of knowledge of any objections to the menu items; and unreported flooding in the basement. He also expressed a willing to resolve any disputes and to take any suggestions that she had to make the pizzeria "a more upscale look".

The witness testified you could smell "a smell of pizza in the lobby, in the penthouse and in certain other areas." (Tuckerman, Tr ., p. 67, l.4–5). The witness states that she smelled the odors before August 17, 2013 and after August 17 2013.

When asked how many times she smelled pizza, she said on numerous occasions and there was no specific pattern of the smell; she smelled it once or twice a week. She especially noticed the odors around lunchtime, 11:00, 4:00 and 10:00. "11 to 4. Maye 11:00 to 3:00" (Tuckerman, Tr., p. 69, l.10–15). She stated that the smells were not strong and not effect the Petitioner's use and occupancy of the premises, but you could smell them. Although tenants and occupants commented on the smell of pizza in the building, it was primarily the people that worked there and not necessarily patrons or guests that came into the building.

On cross-examination, the witness acknowledged that notwithstanding the gap between the vent and the ductwork for the pizza oven that was depicted in Petitioner's Exhibit "18" was discovered by the Petitioner in January 2014, she admitted that the Petitioner did not notify the Respondent until July 2014 when the Court suggested that the Respondent conduct his own inspection by his own engineer (Tuckerman, Tr., p. 75, l.16–25; p.76, l.1–25; p.77, l.1–20). It was nearly six months before the Respondent had any notice of this condition. Additionally, although there were also discovery of holes that could allow the smells to enter the building. When asked did the Petitioner do anything to resolve the pizza smell after discovery of the condition depicted in Petitioner's Exhibit "18," the witness testified that the condition was not abated by the Petitioner because she did not think it was her responsibility (Tuckerman, Tr., p. 78, l.1–24). The vent that had the space was not created by the owner and the owner was not required to correct the condition. She believed that the condition in Petitioner's Exhibit "18" was brought to Court, and shown to the Respondent.

The witness acknowledge that handwritten sign depicted in Petitioner's Exhibit "15–A" was removed, but claims it was removed after the date of service of the Notice to Cure or Notice of Termination.

In regard to the menus inside of the pizza store, the witness stated that at some point, the menus were taped on the inside of the window, and were there after August 17, 2013.

The witness acknowledged that the hotplates used by the Respondent were operated by electricity and not by gas. She never observed cooking by an open-flamed; the hotplates were operated by electricity on the first floor and in the basement.

The witness was then excused.

The Petitioner called Christopher Bodenmiller as their next witness. The witness testified that he is a resident of Brooklyn, and holds a professional engineering license in the State of New York. His specialty involves HVAC-heating, ventilation and air conditioning. He has a degree in mechanical engineering and obtained his bachelor's degree from Brooklyn Polytech, now known as NYU Polytech. He has worked on a myriad of different projects including high-rise apartment buildings, infrastructure and "office outfit" for some institutional owners. He also worked on "interior spaces" such as network studios which also have different office space, cooking kitchens, cafeterias, and different kinds of storage facilities.

The witness testified that he was hired by the Petitioner to inspect 32 Court Street to "review the ventilation system, exhaust system for the pizza oven and to respond to two previous reports, one by an engineer that was hired by the tenant and one by Smog Hog, is a vendor of something known as precipitator (Bodenmiller, Tr., p. 84, l.12–16). The witness defined a precipitator as "something that squishes exhaust air in certain locations. If you have grease or kitchen exhaust hot, it will have carbon filters to magnetize it, it will wash it so that the exhaust is relatively clean. It is just more of a relief air. It is still maybe elevated in temperature at that point." (Bodenmiller, Tr., p. 84, l.18–24).

Pursuant to his retainer, the witness testified that he inspected the main lobby of the building to determine if there were pizza smells in the lobby. He went to these parts of the building at around 5:30 to 6:00 in the evening. He also went into the pizzeria itself. He went into the elevator and traveled to the top of the building to see if he could smell pizza. He stated that he did not observe anything noticeable at the building and noticed a little pizza smell at the front of the lobby. On the interior, nothing. (Bodenmiller, Tr., p. 85, l.2–16).

He was also asked if he observed any ductwork and he responded the "pizza oven has a type 2 hood, which is raised just for heat. On top of it, it has a round connection that goes up into the ceiling. In the ceiling, it connects to an exhaust fan, it connects to a duct that runs to the edge of the building, and it does not connect, it does not connect to the grille because it is supposed to be a does not connect to the grille. There shouldn't be a grille on the edge there. Should be louvres, the ductwork was freefalling, part through the grille." (Bodenmiller, Tr., p. 86, l.1–11). The witness further described the louvres to mean "open that this is some blades to allow air to come in, but to make certain that rain doesn't come in. It is not open to the outside." (Bodenmiller, Tr ., p. 86, l.18–21). Depending on the way that you want the air to blow from the duct, would determine the kind of louvres that are installed. There could be a fixed blade louvres in one position. The louvres could be horizontal, and could blows up depending on the specific needs. Specifically regarding this property, he testified that there were no louvres; there is a grille that was angled downward which allowed exhaust to come down out of the grille.

In addition, the witness also affirmed through visual observation that the grille was not connected to the ductwork. Although he did not measure the gap between the duct and the grille, he estimated that there were a few inches, maybe more, between the grille and ductwork. He said that you could see the effect of the grille and the ductwork not being connected from the outside. "In my report there is a picture of a grille. You could see staining outside of it. The grille is supported by four rivets. You will see staining at the grille itself. You won't see it up and around. Leakage." (Bodenmiller, Tr., p. 88, l.16–20). According to the witness, the lack of the sealant and the rivets between the ductwork and the grillwork allowed leakage into the building, and as a result of the leakage, the air will force itself into the other parts of the building instead of through the ductwork and out of the building.

The Petitioner's attorney asked the following questions and the witness made the following answers: "In your professional opinion, is the ductwork according to code in the pizza parlor?" Answer: no. Question: Would the smell be a public nuisance? Answer: yes. I mean if people were complaining about it, of course, yes." (Bodenmiller, Tr., p. 93, l.1–6). Based on his inspection and supporting report, the Petitioner admitted into evidence Petitioner's Exhibit "21".

The witness further testified that his report was "requested by Rachel Tuckerman to investigate the exhaust system for the pizza oven and to review the complaint in this Smog Hog report to investigate the exhaust system for the pizza oven and to review the complaint in this Smog Hog report and counterclaim the engineer's report by the tenant". (Bodenmiller, Tr., p. 93, l.24–25; p.94, l.1–3).

The witness explained "we have the hood followed by an elbow fan and then you're flowing into the ductwork to a grille. The ductwork is able to handle more pressure with a thicker gauge at a higher temperature. The higher the temperature, the more pressure exerted. Size matters based upon capacity. If you have a bigger duct, you want it more ridged. The larger the ductwork, the thicker the gauge, where pressure rises with the fan, you want a thicker gauge, you want to seal it. There is less leakage of the exhaust into your ceiling." (Bodenmiller, Tr., p. 95, l.11–25).

The witness further testified that the type of cooking that was done at the demised premises including preparation of tomato sauces require a type 2 hood, and not a type 1 hood. The witness testified that a type 1 hood is used for cooking applications that could create heat, grease and steam. Type 2 hood is used for heat and for some dishwashing, dishwashers and sanitizer devices. It should be just heat and measure. (Bodenmiller, Tr., p. 96, l.24–25; p.93, l.1–3). A good old type 2 hood is not for any grease application. No matter what was being cooked on the grill, the grease application type 1 hood would have been required. In the instant case, the type 2 hood would need to be modified to a type 1 hood. Type 2, by itself, would not be able to handle that type of cooking.

With respect to the griddle, Bodenmiller testified that the type 1 hood would have to be located above it. If there was any deep fat fryer in the property, similarly, the hood would have to be located directly above it and it would have to be expanded by several inches. Depending upon the type of hood, it could be three or four directions. It could be an island hood. Then it would have all four directions. If it was a wall hood, it would be in three directions. The type of hood that would be required for any deep fat fryer would be a type 1 hood. Even when cooking sauces including tomato sauces, the witness testified, when there is an open flame involved, probably a type 1 hood should be used.

The witness further testified to a hypothetical question: if tomato sauce was being cooked on an electrical outlet, what type of hood would you need. He stated that such cooking without a hood would not be proper under NYC code, but if a hood was installed, the type of hood needed for that type of cooking would be "electric, it might be type 2. If it is gas fire, type 1." (Bodenmiller, Tr., p. 98, l.24–25).

The witness also testified that a griddle would require a type 1 application. The witness further testified that any type 1 deals with grease and things other than just plain heat, and type 2 is used for heat only. In addition to a type 1 hood for this type of cooking, the witness further stated that type 1 hoods may require an Ansul systema commercial suppression system. There was no Ansul system in the subject premises.

The witness testified that the NYC code requires that the hood for a type 1 or a type 2 application be insulated because the unit pulls hot air with grease or fire. The witness further stated "[t]he code 2008 calls for calcium —calcium silicate or equal resistance value of the calcium-silicate or manufactured—allocated duct for the application. You can buy something that's already pre-manufactured, use it instead of wraps you could put around it. It protects um around the ductwork in case of anything, this will make anything catch fire. (Bodenmiller, Tr., p. 100, l.23–25; p.101, l.1–9). He further explained that the ductwork heat up, the purpose of the insulation is to stop a fire for at least a period of two hours.

In the demised premises, he states that "the exhaust air was spilling into the exhaust fan into what I'll call pizzeria ceiling cavity as well as coming from the a/c unit return. You have two sets of air coming in. A/C unit and typical fed-out application is non-conductive. You don't put a duct in the a/c unit pulls the a/c, pulls the space that air both return air from the pizzeria is up in the ceiling and exhaust. I notice in several of my pictures, I show holes in the ceiling above the ceiling as well as the diffuser still up there. I believe that some of the air is getting into the building now that some of the other holes were blocked off." (Bodenmiller, Tr., p. 103, l.14–25; p.104, l.1–2).

In addition to the other issues of the air being diffused because of the duct issue, the witness further stated that "in the original report um the tenant had put out the engineer, at the time, had noticed several holes were piping was for the radiator in the lobby it wasn't sealed. Air in the adjacent space was spilling into the lobby Later, by my avail. Any kind of place where just water it is going to air wants to spill where it can if there's a path of least resistance. It is going to go there unless directed by a fan. (Bodenmiller, Tr., p. 104, l.4–9; p.104, l.10–14).

The witness stated the lobby radiator and the pizzeria had a common wall. In that wall, there were pipes which were not sealed directly. There were holes for the air to escape from the pizzeria and had the air go into the lobby. (Bodenmiller, Tr., p. 104, l.21–25; p.105, l.1–2). Apparently, the holes in the wall near the radiator, the witness testified, were repaired before his report, and he had asked the consignee at the desk had he smelled any pizzas in the hallway, and informed that it was "decreased." The witness stated, "[i]t wasn't the radiator. It was a hole where the radiator was where you had holes in the wall that allowed the smell from the pizzeria to travel into the lobby. (Bodenmiller, Tr., p. 106, l.18–21).

The witness further stated that the gauge in the ductwork had little to do with the actual problem. The witness confirmed that the real problem is the space between the grille and the ductwork that allows the disbursement of air all around it. He further stated that "the heat and pizza smell, it will pressurize the ceiling cavity and then any area that it could escape from, it will. The basic path of least resistance. If you have a hole in the wall above the ceiling, if there is a grill on the return side might push down into the pizzeria and the pizzeria again, it will short-circuit itself into the hood. Your hood, at the time, you're pulling air out positive in the ceiling, but at the same time, your fan is pulling air out of the space that the air can get pulled back into the pizzeria, we call short-cycle." (Bodenmiller, Tr., p. 108, l.25; p.109, l.1–13).

"[H]eat and pizza smell within the pizzeria in this case, I don't think much. It is only one pizza oven." When shown Petitioner's Exhibit "18," the witness did not state that the condition was grease. He said it could be, and he did not have an opportunity to touch it, because at the time that he was there, the oven was being used and the temperature could range as high as 180 degrees. Sometimes, it's 212 degrees. He said he could not touch it, because he would have gotten burned. However, he did state that the condition of the ductwork could allow grease particles to be thrown on the grille and some of it could splatter. The ductwork looked like it was rusted-it could be from grease or water. The witness stated that hypothetically that any grease saturation on the beam would be a safety hazard and could be "lighter fluid"; the condition does, in fact, get worse over time.

Also, the witness was shown Petitioner's Exhibits "6," "7" and "8", and stated Petitioner's Exhibit "6," showed that the Respondent's application was re-filed on August 16, 2011, date filed on August 17, 2011, closed out after August 17, 2013 and signed off on October 16, 2013. As to Petitioner's Exhibit "8," he stated that the sprinkler application was filed on November 10, 2011, approved on March 1, 2013 and was never sign-off by DOB. Additionally, Petitioner's Exhibit "4" (Alteration plans for the storefront and basement), he stated did not contain any plans for any type of hood in the basement; did not include any authorization to use the basement as a "prep kitchen" and did not contain any countertops. The witness further testified that even if electrical burners were used in a commercial setting, a hood would be required. The witness never went into the basement of the property so he could not testify about the basement.

The witness was excused and the trial was adjourned to November 14, 2014. (The witness was not available on the next trial date. By agreement, the Petitioner called another witness, Glenn S Kessler, out of turn on the following trial date of November 14, 2014. The Court will continue with the testimony of Bodenmiller for the sake of continuity of his testimony and this decision.)

On November 19, 2014, Respondent commenced cross-examination of Bodenmiller. The witness acknowledged that his report, Petitioner's Exhibit "21" was based on the ABS report, the Smog Hog report, and his examination and inspection on June 20, 2014. On the date of his inspection, the Respondent, Rachel Tuckerman, Esq., and the superintendent, Ramjohn, was there for a couple of minutes. The Respondent was the only individual that was present the entire time and he was there approximately 1 to 1½ hour. He acknowledged that he did not go up on a ladder and remove the grilled; he only looked at the grille from the sidewalk outside of the property. The witness further testified that he did not remove the grille and did not see anybody else remove it in his presence. From "my observation as is, it is not louvres. It is a grille, and the grille direction was facing down toward the ground. (Bodenmiller, Tr., 11/19/14, p. 20, l.6–8).

The witness was asked whether or not this grilled had been changed in any way from the date of the Respondent's initial buildout to the date that the engineer conducted his inspection, and he admitted that prior to his inspection, someone from Smog Hog had gone up on a latter, had taken the grille off and then put it back. The witness could not tell whether or not Smog Hog had reinstalled the grill properly or improperly.

The witness further stated that the hood in the pizzeria, a type 2 hood, was acceptable for deck type pizza ovens and the size of the hood meet CFE minimum requirement code, which allows a proper flow of air. In this instance, the hood and the fan were within the code and appropriate for this type of oven. The witness testified that "the lack of means to provide makeup air," was not a code violation for using natural means of makeup air and that his job was to "look at the hood to see if it was code compliant, and I was there to respond to the report about the smell going up and down the building." (Bodenmiller, Tr. 11/19/14, p. 24, l.15–17).

When asked whether or not there was a determination about the pizza smell going up and down the building, the witness stated that his finding was consistent with the ABS engineer. The witness further testified that he read Respondent's Exhibit "A" (ABS Engineering Report of Antonio's Pizza) and referred to that report in his "third significant finding" in his own report. The witness stated that "the previous engineering report by ABS described and illustrated openings between the pizzeria and the building lobby that have now been patched." (Bodenmiller, Tr., 11/19/14, p. 25, 8–11).

The witness stated that the other potential problems in the ceiling, were not found by ABS, but by him. The witness stated that "the mitigation of air into the lobby has decreased and was not in the lobby. At the time of my survey for my observations, the pizza exhaust air that was spilling into the ceiling cavity is being transported into the main building and even up in the building, in the openings, in the walls and the ceiling, and the duct and diffusers to mitigate the transportation of air, the exhaust ducts, as required by the codes, need to be directly connected to the grille to further decrease the chance of recirculation of the air from the exhaust grill I'm on four. Sorry." (Bodenmiller, Tr. 11/19/14, p. 25, l. 21–25; p.26, l.1–7).

The witness further described how food odors were emitted into the public hallways. The witness concurred with the ABS report, which said that the air was coming through the radiator and being sucked up by the elevators; the elevators were creating negative pressure and pulling the air up. The witness acknowledges that the work on the radiators had been done prior to his inspection; and by the time he got there, the work had been done and the problem resolved. There was apparently two holes around the radiator; however, no work was performed in the ceiling. After further cross examination, the witness testified that there were not multiple holes near the radiators but instead the space around the piping on the radiator had openings that were contributing to the emittance of air in the lobby and this fact was also confirmed by the ABS report.

The witness then affirmed that on June 20, 2014, when he was at the pizza restaurant, he examined the ceiling above the ceiling in the pizzeria and then he saw another ceiling above that where there were holes throughout. The witness further testified that this ceiling "was listed as photo 4 in my report. You'll see this is a drop ceiling. Below is the pizzeria, and above is another ceiling and there is a hole right there". He could not testify when these holes were made or who made them. He also could not tell if these holes were made above Sal's Pizza before he was in possession. The witness did state that "it is (food smell like pizza) going to go up into the hole because the ceiling is pressurized. It will go up, and it will fill the pressure through that hole. I could not tell where the odors would go after it goes through hole". (Bodenmiller, Tr., 11/19/14, p. 31, l.20–22). He attempted to go the next floor above, but could not. The witness further testified that he believed that the area that he would've needed to get into was the mezzanine or the second floor-whatever space it would have been above there to tell where the smell would go from there. He could not get up there.

The witness described how the building was built: There is a pizzeria drop ceiling; there is an older ceiling, the older ceiling that's attached to the building would've been the next level and that is where the hole was located. That was called the slab or floor plate. He was asked if he had had an opportunity to observe the floorplate at all during his visit, and he stated, no. The witness was asked if he pulled any plans for the construction of the building to determine when it was built, how it was built, if there was a floorplate or a slab or anything else, and the witness answered, no he did not). (Bodenmiller, Tr., 11/14/14, p. 32, l.1–25; p.33, l.1–15).

The witness acknowledged that he did not have an opportunity to look into the hole to determine what was above the hole. He also testified that in his report, "I said it is a possible ‘path for smells from the pizza parlor’ to get throughout the building." Possible path is not definitive. It just gives it a possible path into the building. (Bodenmiller, Tr. 11/19/14, p. 34, l.24–25; p.35, l.1–2).

Furthermore, the witness did not state affirmatively that repairing or closing the hole would eliminate the problem. He seems to state that it is architectural in nature and may create a fire hazard or something else, but to help with the health and the smell, if you patched the ductwork, it should eliminate the source from the pizza oven. (Bodenmiller, Tr. 11/19/14, p. 46, l.13–20). As to his recommendations to prevent any additional odors from going into the public area or the building, the witness stated "to help decrease it a lot is to connect the duct like it should have been to the grille." (Bodenmiller, Tr. 11/19/14, p. 47, l.4–6).

According to the witness, to resolve the problem with the louvres blowing down and "noxious" odors coming into the property, the witness stated "little more than 10 feet, but it also says in the code, noxious odors still need to be mitigated. So, simply switching the grille or putting the louvre horizontally and blowing horizontal takes care of that problem." (Bodenmiller, Tr. 11/19/14, p. 55, l.11–15). In his opinion, whether operational or not, is for the louvre to blow horizontal.

After substantial cross-examination, the Respondent concluded cross-examination.

On redirect, the witness testified that he had a different opinion than ABS about the ductwork. He stated that "the ductwork is round and the opening is square, so there has to be a transition there (sic). It was cut wrong or there needs to be a transition piece so that there has to be from square to circle, otherwise it will go around it. That would be what I would say if that's what he is referring to that you have a round to square, then yes. He would need to kind of make it work for the transition from round to rectangle the two spaces don't match up. So, because it is rectangle, it is longer in one direction. If you have 16–inch duct and 16–inch by 8–inch grille, you are going to have a space on the sides that aren't going to match the grille. So, you are actually going to have openings beyond unless there is a transition piece around the grille the ductwork would have to shrink and the 16 by 8 grille, you're not allowed to shrink ductwork. The grille has to be bigger. The grille should be, you know, slightly larger, so you can get around the ductwork. The ductwork can have transition pieces to go around the entire grille so there is no space (Bodenmiller, Tr. 11/19/14, p. 70, l.1–25; p.71, l.1–5). He clearly stated that Petitioner's Exhibit "18" does not show any transition.

Then, the witness described the remedial work required to remedy this improper installation by providing that "you would have almost like round and then go into like a pyramid shape in a rectangular and go around the grille". (Bodenmiller, Tr. 11/19/14, p. 72, l.12–14). He agreed, in part, with the determination made by the ABS report that the duct work and the grille were not installed properly and was improperly sealed. Additionally, the witness further testified that the gauge on the ductwork was not up to code. The gauge in this case was an 18–inch gauge and the code requires a 16–inch gauge.

On re-cross-examination, the witness concluded in his report, the Respondent would be able to mitigate the transport of the air of the exhaust duct, as required by code, if the duct is directly connected to the grille and by sealing the ductwork. He further admitted that the exhaust system was not leaking in any place except at the location of the exit point where the grille is. (Bodenmiller, Tr. 11/19/14, p. 83, l.11–16). Although he admitted that the leaks from the ductwork were minimal, he did not put that in his report as a major conclusion. He also admitted that he didn't put in his report that pizza smells were coming from the ductwork because it wasn't wrapped with a fire-retardant material.

In summary, the witness affirmed that the major findings was about the grille and the other items that were not up to code. The items that were not up to code were the ceiling and the fire rating. He concluded that even though these were non-compliant code violations, they did not necessarily support his findings about the admission of the cooking odors in the building.

On November 14, 2015, the Petitioner called GLENN S. KESSLER, ESQ ., an attorney who has been a commercial tenant at 32 Court Street, Suite 704, Brooklyn, New York for approximately 18 years. He testified that shortly after the pizzeria took occupancy of the first floor, he started smelling the pizza, smoke and other odors of that nature. The witness testified that he smells the pizza in the lobby, and on the 22nd and 23rd floors of the building. He said that "he smelled the pizza burning pizza smell quite strongly. My office is on the 7th floor I'm in 704. I smell the pizza smell on a regular basis on his floor". (Kessler, Tr., p. 4, l.3–11).

The witness stated that he has new clients and old clients in his office and immediately, they ask him if there's a fire in the building. Why am I smelling restaurant smells up on the 7th floor? (Kessler, Tr., p. 4, l.3–11).

The witness further testified that he had occasion to walk his rent check up to the 23rd floor. When he walked out into the hallway on the 7th floor, he immediately smelled a very, very, very strong odor of burning. He thought that there may be a fire and reported it to the Petitioner's employee, Jennifer. He gave her the rent check, and she came down with him to the 7th floor and also smelled it. It was a very strong odor. (Kessler, Tr., p. 3, l.21–25).

The witness described the condition as "I would say it is more often than not, on a daily basis. Sometime it was less. Sometimes it was more. Sometimes it's unmistakable and frankly, as I said a week ago today, I thought there was a fire in the building." (Kessler, Tr., p. 5, l.20–23).

In addition, the witness further testified that he had eaten at the pizza parlor; in fact, he had a bacon, egg and cheese sandwich and an apple skewers that very morning before trial.

On cross-examination, he testified that he has a very good and amenable relationship with the Petitioner's managing member, had renewed his lease about 2 to 3 years ago and will remain in occupancy of the building because he is "happy there".

The Petitioner's next called Anslen Ramjohn, the building superintendent for nearly 18 years. His duties involve maintenance and repair of all mechanical systems in the building; and he handles all city employees that come to the property. He has a HVAC license; a fire director license and is the EAP (emergency action plan) person in the building (non-fire related emergencies). In addition, he has a boiler license which gives him the authority to repair and maintain boilers.

He testified that he was familiar with ANTONIO'S PIZZA because he has been in the pizzeria and in the basement (C–101).

The Petitioner admitted into evidence Petitioner's Exhibit "22–A," (water pouring into a filthy slop sink) Petitioner's Exhibit "22–B" (dough on stainless steel countertop), Petitioner's Exhibit "22–C" (large industrial mixer next to slop sink) and Petitioner's Exhibit "22–D" (grease trap); photographs taken by MONA GORA on the date of her inspection of the storefront and basement.

He further testified that at the inspection, he noticed that there was a different countertop in the basement; steel construction was there as opposed to the earlier Formica countertops.

He testified that he has the opportunity to go down in the basement once or twice a month or as needed and while there, he observed several employees of the pizzeria preparing food in the basement over the past year including observing a meat slicer and/or cheese slicer there.

The witness testified that the outlets in the basement were regular 110 voltage outlets as opposed to the GFCI outlet with reset buttons. GFCI were appropriate for bathrooms or kitchens for safety in case of water infiltration.

He stated that he went into the phelum above ANTONIO'S PIZZA around December 2013. He identified the phelum as the space between the dropped ceiling and the ceiling above. He stated that "when I put my hand above the ceiling, the drop ceiling, I saw, there were, 2 by 4's in there. There were wires, electrical wires. There were air conditioning vents. There were holes above, on the ceiling." (Ramjohn, Tr., p. 18, l.21–24). The witness described the phelum area as follows: "There are sheetrock, dropped ceiling, then there is another ceiling above that, which is like a master in ladder ceiling, and above that is the floor plate. (Ramjohn, Tr., p. 19, l .16–18). The first ceiling is the suspended sheetrock ceiling; the ceiling above that is sheetrock, and the second ceiling was the original and metal. The witness testified that the holes were in the second ceiling.

He acknowledged that there was no heavy grease in that phelum area. He stated that the only place that there was heavy grease was at the building faXade near the vents.Unlike the above named engineer, the witness testified that he got up on the ladder and observed the condition in Petitioner's Exhibit "18", a photograph of the ductwork without the grille that clearly had grease on the wood that was "smashed in" and has grease as well as grease on the ductwork itself. He did not perform this work; he believed that it was either Sal or his mechanic.

The witness further testified that he had been in the interior of the pizzeria. He buys his breakfast there every morning from Monday through Friday. He further testified that he observed the kind of foods fried foods served there like mozzarella sticks, chicken wings, fried calamari, stuff like that. It was fried in a deep fryer.. (Ramjohn, Tr., p. 27, l.10–11) It was tabletop type of deep fryer and it was set up close to the pizza oven.

Over the objection of the Respondent's attorney, the Court admitted Petitioner's Exhibit "23–A" through "23–D". The Court determined no prejudice to the Respondent to admit the pictures that were taken without authorization and consent of the Respondent. Petitioner's Exhibit "23–A" depicts the tabletop fryer; Exhibit "23–B" a closer copy of the same tabletop fryer; Exhibit "23–C", the pizza oven, boxes and menu sign; Exhibit "23–D", the fryer again but clearly showing that the fryer is very close to the pizza oven.

The witness testified that he eats there nearly every day, and this morning (the date of trial), he got a sandwich with mushroom and spinach with swiss cheese and a shot of wheat grass and coffee. He said his meal was prepared on a hot plate grill; and he observed that there was no hood over the grill or deep fryer. The witness stated "they sell sandwiches, eggs, that is what I buy, so, you know, I don't really look at what else they sell so much but the eggs, the juice". He also sells wheat grass, health juices, coffee. (Ramjohn, Tr., p. 37, l.22–25; p.38, l.1–2).

Additionally, he testified that he observed the preparation of chicken wings and fried calamari, mozzarella sticks and gyros. He observed bagels being served in the shop; and also cold sandwiches (not hot sandwiches) including chicken salad, tuna salad, egg salad, classic turkey, peanut butter, jam and Nutella. He, of course, observed pizza being sold in the pizzeria.

On cross-examination, the superintendent acknowledged that he's been employed by the Petitioner since she took ownership of the building. The witness also testified and acknowledged that the prior occupant of the store was a yogurt store and the current sheetrock ceiling is the same ceiling as when they were in occupancy; the only difference was that the current tenant partially sheetrock the walls and then partially had tiles. The prior commercial tenant was in occupancy for roughly a year. Prior to the yogurt store, it was a jewelry store. The jewelry store had a drop ceiling; not a sheetrock ceiling.

He also stated that "[t]here is a gap between the drop ceiling and the plastered ceiling, and there is a gap between the plastered ceiling and the floorplate. (Ramjohn, Tr., p. 44, l.4–6). When asked who put the sheetrock ceiling that is now part of the pizzeria, he testified that the yogurt store. "The yogurt store and the holes that you observe when you went into the phelum on December 17 in this plastered ceiling, the second ceiling that we're referring to, were there then when the yogurt store was there." (Ramjohn, Tr., p. 46, l.9–12). The witness testimony could be summed up as follows: the yogurt store had installed the drop ceiling and once the drop ceiling was installed, he stated that you couldn't see anything else above that; it was totally sealed. The yogurt store installed the installed the sheetrock ceiling and the jewelry store installed the drop ceiling. He was firm that you could not see in the ceiling above the sheetrock ceiling.

The witness testified that prior to December 2013, he had no reason to go into that area of the ceiling. It was Sal who opened the vent to allow them to look into that area. The witness testified that when he looked up in the area, "I observed electrical wires. I observed opening to that second ceiling. I observed old ventilation grilles. I observed some exposed 2 by 4's. (Ramjohn, Tr., p. 48, l.10–12).

Upon further examination of the witness, he acknowledged that he was not present to see either of the past tenants installed the ceilings but know that their respective ceilings were different. As far as the witness was concerned, when asked about the holes above the sheetrock ceiling, the witness stated that there were just holes there where it leads to above that is the floorplate. It doesn't lead to anywhere but that space in between. (Ramjohn, Tr., p. 50, l.19–23).

Turning the witness' attention to the exterior of the building, the witness testified that Steven from Master Fire opened up the grille and closed the grille. He acknowledged that he did not use any machinery to open the grille and he did not collect any specimens or samples. No one took any notes and there was no assistant with him from Master Fire on the date of the inspection.

The witness further testified that after Steven from Master Fire came down from the ladder, he went up the ladder and also inspected the place himself. He further confirmed that there was a saturation of grease. Notwithstanding this fact, the witness stated that no action was taken by the Petitioner, himself or Master Fire to remediate the saturation of grease in that area.

The witness further testified that grill louvers were pointing straight out; not up or down. He further stated that the Master Fire technician did not seal this area, but, simply put the grille just like it was.

On redirect examination, the witness testified that in Petitioner's "10–E" and "10–D" were two different burners.

The trial continued on December 15, 2014, and the Petitioner called Mona Gora Sterling, one of the principals of the Petitioner-corporation with her offices located on the penthouse at the premises in this proceeding. She has specialized in real estate management and development since 1995 and has been working full time since 1995.

She testified that she usually comes to the building pretty early in the morning, around 7 o'clock or 8 o'clock a.m., and when she comes in through the lobby doors, there is a faint smell of pizza. On the night that she is there late, when she comes down the landing on the 22nd floor, she immediately smells pizza or baked goods, and "it's usually by the time I hit the landing and open the elevator door to leave at night. It hits me like a ton of bricks. It is a very strong smell of pizza or cooking cheese. That type of smell". (Sterling, Tr., p. 6, l.1–5; p.4, l.14–22). She has smelled pizza shortly after the pizzeria began operating their business in 2012.

When asked was the pizza smell consistent or does it change, she stated that "it does change, I mean, I'm very sensitive to it, because I am very sensitive to everything in my building. So, I'm very conscious when I walk in in the morning, it's a little bit lighter, not every day is it as strong as other days. Usually, when I come down at night, you know, and the morning, the pizza oven is not on because they're serving breakfast next door so it's the lingering smell from the previous evening, but when I come down at night, those ovens have been fired up for a long time so it's very strong." (Sterling, Tr., p. 6, l.8–18). The witness also testified that the smell is stronger at 8 o'clock and 9 o'clock at night than when she comes in early in the morning or in the middle of the day, she said she knows she's going to smell it. (Sterling, Tr., p. 7, l .6–10).

Petitioner's Exhibit "15–B," the witness stated is a photograph of an advertisement in the window box right outside the entrance of the pizza store. She testified that she did not give the Respondent authorization to put any advertisement in the window, but believed that the window box was supposed to be removed by the Respondent. Further, after August 16, 2013, the advertisement signs were slightly changed, but they were still advertisements there, but different advertisement signs.

The witness then examined a set of plans that were admitted into evidence as Petitioner's Exhibit "4" and Petitioner's Exhibit "5", plans of the basement use for refrigeration and storage and for a bathroom. She stated further that the plans did not include any prep kitchen, countertops, or dough preparation machinery, and did not refer to any cooking device, such as hotplates, burners or deep fat fryers. (Sterling, Tr., p. 13, l.1–18). The witness further testified that there was no ventilation in the basement; there were no vents or other devices required to get emit cooking odors. She testified that she did not believe that she ever granted oral or written authorization to the Respondent to use the basement as a prep kitchen.

She was in the basement of the Respondent's commercial store about four weeks ago and found it to be "very dirty, very dirty" and stated that her complaints involve seeing a glue strip hanging from the ceiling that collected flies and other bugs. She also stated that "the area near the boiler room is not supposed to have anything obstructing it, because there are pipes and some sewer pipes and stuff on the floor, and that room was completely loaded with debris and articles that belong to the tenant. I went down with my super, I was upset, because nothing is supposed to be in that room and they were using that as storage. They were using that as storage". (Sterling, Tr., p. 15, l.15–24). "Besides the debris used as a storage room, which there should be nothing in that room, the grease trapped was so gookey, is the only word I can use. I don't even know what it could be, I don't know if it could be opened or used for anything, it looked completely like corroded with grease around it". (Sterling, Tr., p. 16, l.9–14).

The witness further testified that "there was a slop sink that was very dirty, and it had a white pipe, and from that white pipe, the liquid that was coming out of there was not clear. The witness further testified that down in the basement, which was the first time that she had observed it when she was there a few weeks ago, they were prepping dough. "I hadn't seen the prepping of dough before, but they were prepping dough. I mean, it was very busy upstairs, and they were prepping a lot of dough down in the basement ." (Sterling, Tr., p. 17, l.8–11).

The witness further testified that the tenant is utilizing spaces that do not belong to them. "They're using it as storage for food products, pots and pans". There was like some clothing back there, and I believe there was some kind of couch or something that was loaded up with a lot of debris on it. That's pretty much what I saw down in the basement when I was there a month ago (Sterling, Tr., p. 17, l.12–19).

Petitioner's Exhibit "22–A", "a picture of a pipe that I saw spilling some kind of liquid into the slop sink, and it's like all this grime all around the slop sink. This is not a legal pipe. You could see the pipes that strap to the wall behind there, and I'm not even sure what this bag was, where all that debris hanging off it, but this is a makeshift pipe, that's not a legal pipe." (Sterling, Tr., p. 19, l.2–9). The witness stated that she did not give permission to have this installed and that she was shocked to see it there; Petitioner's Exhibit "22–A" shows that there was a ring in the sink that she said was black as the chair.

MS. GORA also testified strongly that she never received any alteration plans from the Respondent; the only plans that she received were attached to the lease which were for the storage. She did receive from her attorney's plans that she believed were pulled of the DOB website, Petitioner's Exhibits "6," "7" and "8." She was insistent that she did not give the Respondent authorization to install the stainless-steel prep tables depicted in Petitioner's Exhibit "22–B" and "22–C". Additionally, in Petitioner's Exhibit "21–C", the witness stated that she did not give the Respondent permission to have the dough machine.

She also observed that electrical outlets were installed on the wall above the counter were not GFCI outlets and no authorization was granted to install any electrical outlets in the basement. She was horrified that the Respondent was cooking with electric in the basement. She never gave permission for the Respondent to have slicer and a scale in the basement.

Petitioner's Exhibit "10–B", depicted the area of the basement. She made two inspections without prior notice and found it was dirty and smelly. Petitioner's Exhibit "10–H" was her inspection on December 27, 2013, and the other one, unannounced, was exactly one month later on January 27, 2014 and made a notation on the pictures saying, one month later, dirty, smelly, unannounced, and you can see that there's salad, there's other things jimmy-rigged to the top of the cabinet, the garbage is out, there are containers of food with caps there. I didn't know if I need to be any more descriptive than that." (Sterling, Tr., p. 29, l.14–21, p. 30, l.1–6).

In regards to the sprinkler system, she testified that the application was submitted and approved on March 1, 2013, and to the best of her knowledge, the sprinkler work was not complete, the application was still open and had not been signed off.

The attorneys for the respective parties stipulated to the following facts: the sprinkler application remained open; there was no work done on the sprinklers; a permit was never issued for the sprinklers, the sprinkler was never signed-off by DOB and the sprinkler application expired, which it does within a year if it is not permitted (Torrenzano, Tr.12/15/14, p. 32, l.8–13).

The parties also stipulated and agreed that the Petitioner did not give the Respondent authorization to sell any of the products that were excluded from the lease. She said "[d]efinitely not a deep fat fryer. I was so conscious before we even signed the lease, I was petrified of food and the odors, I would never allow the deep frying. The lease was very specific in what we allowed the tenant to provide" (Sterling, Tr., p. 35, l.19–23).

After substantial colloquy with the witness, there appeared to be a dispute about the authenticity of her signature on the notice to cure. She was not clear if she had signed the document. The parties stipulated that there were no amendments to the original notice to cure and notice of termination and she authorized service of both notice on the Respondent.

The witness was unable to affirmatively stated that the lease agreement restricted the use of the basement or provide any specified use for the basement. Her answers were evasive and did not ever answer this inquiry. She did, however, state "the condition when he rented the slop sink, was there previously from the previous tenant, the bathroom was there from the previous tenant so sometimes there is multiple floor plans that we have, because every time a tenant changes depending upon where they take the drawings from my office, they attach the demised premises and later they might attach something that's more detailed. What you presented to me earlier shows the exact breakout, we witnessed it together, the corridor with the slop sink (Sterling, Tr., p. 57, l.9–18).

The Court was directed to examine Articles 3 and 6 of the lease and to review the certificate of occupancy which states that the basement can only be utilized for ordinary use which is defined in the code as storage. (Sterling, Tr., p. 58, l.1–6).

When the witness was asked to look at the lease agreement, the diagrams of the first floor, and Lease Exhibit "A", the witness says "it is not exactly the diagram of what was leased to the tenant." (Sterling, Tr., p. 58, l.22–23). Petitioner's Exhibit "3" did not represent the space that was rented to the Respondent or contain the amount of square feet rented to the Respondent.

At the conclusion of her testimony, the Petitioner rested on its case-in-chief.

On February 10, 2015, the Respondent proceeded with its case-in-chief. The Respondent made a motion to dismiss on the grounds that the Petitioner failed to prove its prima facie case. The Respondent claim that the lease prohibits the affixation of any sign by tape, glue or other means. He argues that the Respondent had removed all objectionable signs except for the A rating sign required by the DOH. "There might have been some signs leaning up against them, but nothing was ever affixed to the window, and there were other signs leaned up against the window were eventually moved, as well, rather to just to keep his landlord happy and that was the evidence that was produced by the landlord. The door, which was not a window, he did not have to remove his stickers that were inside the window, that told what credit cards he used, but in good will to the landlord, he took them down, because she wasn't happy. (Torrenzano, Tr. 2/10/15, p. 5, l.5–24). The Respondent argues there is no violation of Section 60 of the lease and no evidence to prove this lease violation.

The attorney further argues that there was also a marquee on the outside of the building, like a small movie display box to put posters in there. He specifically refers to Article 35, number 5 which says that tenant cannot affix anything on the outside of the premises except for his name, like a signage. It further states that, in the event that the tenant violates this provision, the owner may remove same and may charge such expense incurred by the tenant. The Respondent attorney argues that it was an unlocked box, that if the landlord did not want the signs in there, "she could open it up, take it out and remove it. So, once again, that's not in violation of the lease". (Torrenzano, Tr., p. 6, l.1–21). The Petitioner failed to present evidence that anything was affixed to the outside of the premises and thus, failed to make out a prima facie case on signs on the outside of the building.

He also argues that the Petitioner also failed to prove that the Respondent did not close out all building permits. "The only timeframe that the tenant has to do something is within ten days after they sign off with the completion of the work, they have to get a certificate of final approval and give it to the landlord It says nothing about closing out building permits or timeframes to close out building permits. They presented no evidence as to why there is a violation of lease based upon this allegation". (Torrenzano, Tr.12/15/14, p. 8, l.9–20).

The attorney further argues "there's are two building permits, one for the construction, and one for the sprinklers. There were approved plans filed that was presented for the construction of the premises. A building plan was issued for the approved plans, work was done on this building permit as presented by the landlord. It was signed off on November—on October 9, 2013 by the plumber, the same plumber that was recommended and signed off by the landlord on October 16, 2013. A letter of completion was issued and delivered to the landlord, done within ten days, has nothing to do with building permits but we followed the lease for work to be done". (Torrenzano, Tr.12/15/14, p. 8, l.21–25; p.9. l–9).

"Regarding the sprinkler, an application was submitted for the sprinkler as shown by the landlord; it was approved but no permit was ever issued, no work was ever done, therefore, there was no sign off and therefore there was no certificate of approval. And, what happens with that is it just disappears because it didn't do something within a certain amount of time, it's no longer in existence, but there was never a permit issued for the sprinkler. It wasn't permitted—work was never done on it and therefore could not be signed off". (Torrenzano, Tr.12/15/14, p. 9, l.10–19).

"So, once again, the landlord has failed to make out a prima facie case on that section of their claim regarding permits". (Torrenzano, Tr.12/15/14, p. 9, l.20–22).

"And, as I brought out during Mona, the landlord's testimony, she hired her lawyer to draw up this lease and her requests and non-requests and constraints and her non-restraints and in it they put in related food items and they didn't put in any specifics as to what items he could not sell, even though their purpose throughout here, you can't have a dance hall, you cannot have off-track betting, even though they specify, they didn't specify any types of items that he could not sell, what kinds of food items, and she never got up and testified as to why these items were included in the lease or could be described as being in the lease or why she believed they were excluded from the lease because it doesn't say they're excluded from the lease. So, there has been no testimony brought by the landlord on the issues as to why these items are a violation of the lease. (Torrenzano, Tr.12/15/14, p. 10, l.18–25; p.11, l.1–9).

The attorney further argues that paragraph 87 prohibits noxious odors in the premises and asserts that there has been no testimony presented by anyone of a noxious odor. "A noxious odor is something that makes you sick. It is a noxious odor, whatever it is, that's my interpretation. There has been no evidence presented by anyone as to what noxious odors are and whether they exist". (Torrenzano, Tr.12/15/14, p. 11, l.1–8). He further asserts that there has been no testimony of "an obnoxious heard or smelled outside the premises. So, their other claim would be under this section that the tenant violation of the lease for noxious odor outside the premises. There's been no testimony of an obnoxious odor outside his premises and none was presented by the landlord on their case. The only evidence presented was one witness came in. His name was Glenn S. Kessler, and he testified that he'd been there for a long time and that he smelled pizza and his clients would smell pizza, and while he didn't look—it didn't prevent him from doing the work, in fact, he loves the building so much he's renewing his lease and staying in the building." (Torrenzano, Tr.12/15/14, p. 12, l.16–25; p. 13, l. 1–4).

He also stated the landlord, herself, said that she was smelling pizza smells, some cooked cheese and baked goods. She didn't refer to it as obnoxious or noxious, she didn't say that it prevented her from doing her work, she never testified that she lost any tenants because of it. In a building of 1,000 people, she couldn't bring in one instance that it caused her any harm.

The attorney further argues that there was no testimony that the vents in the building, in regards to the smell, that the engineer did not investigate as to whether or not they were operational and not operational. "In fact, there is no expert testimony within a reasonable degree of engineering testimony, because I was listening for it, saying that the pizza smell in the building, in my opinion, is the caused by this. All the engineers said is, could be there is a leak in a pipe, it could be where the vent is, could be coming from the pizza oven, could it—could be from elevators, it could be from the door, it could be a lot of things but there's is no evidence presented in legal form as to where the pizza smell is coming from." (Torrenzano, Tr.12/15/14, p. 8, l.14–23).

"There is no evidence as to who's responsible for the phelum area from that ceiling that was not leasing, that's not part of his lease. I even asked, I even tried to ask the witness on my cross-examination. Here is the lease. Show me that the phelum area is part of his lease box that he has rented out. Show me the space where the steps that are behind him that lead to the mezzanine between the walls is supposed to be his or not his and nobody would do that for me. That is not my burden to do that. That is the landlord's burden to say whose responsibility it is. They presented nothing judge." (Torrenzano, Tr.12/15/14, p. 14, l.24–25; p.15, l.1–10).

On the other hand, the attorney for the Petitioner argued that the Respondent's attorney did not point to the proper provision of the lease in regards to signage. He stated that the attorney omitted rule number 5 of the lease, which specifically incorporated into the lease by Article 35 of the lease. The provision states that no sign, advertisement or other letters shall be exhibited, inscribed, painted or affixed by tenant on any part of the demised premises or on the building or on the inside of the demised premises without the prior written consent of the owner. He argues that we have heard testimony by the landlord that she told him to remove the signs if the signs were not approved by the owner, that he didn't seek permission, that he just put the signs up. Now, you also have pictures and evidence which show that these signs existed after the notice to cure. You see signs in the window box, you see signs for wheat grass, you see the hand lettered signs for menu, and the attorney also argues that in regards to the marquee box that was on the exterior of the building, that the marquee box also displayed signs for various beverages sales and that is in evidence as part of Exhibit '15" and that the signage's were not approved and that Mrs. Tuckerman, Mrs. Gora and Mr. Ramjohn all testified that those signs were still on the property before and after the notice to cure. The attorney argues that the landlord did not have to result to self-help with regards to the signs, which was to rip down the signs physically and just take them out. They attorney analogized the provision of the lease which says that the owner can change the lock but that's not their only remedy in the lease. (Tendler, Tr., p. 18, l.1–18).

In regards to the building permit, the attorney argues that "we introduced into evidence two permits, both of which were procured by the Respondent, one ends in 30 and that is one for general construction and the other ends in 32 and that's for the sprinkler. The sprinkler permit is still open as of today and they've never closed out that permit. Your honor has subpoenaed Department of Buildings records and Your Honor has certified copies from the Department of Buildings and the witness including Mr. Bedenmiller and Mrs. Gora testified the permit for the sprinkler is still open until today." (Tendler, Tr., p. 18, l.19–25; p.19, l.1–5).

Further, he argues that it is undisputed that the general construction permit was open until October 19, 2013. That is subsequent to the expiration of the notice to cure. Mr. Tendler states that notwithstanding the date, it was open subsequent to the notice to cure.

The attorney argues that the lease contains a restrictive covenant and the court enforce them. He argues that Article 40 does, in fact, preclude various types of cooking, specifically, deep fat frying thus open-flame cooking or stovetops. He argues that Mr. Kessler testified that he had a bacon, egg and cheese sandwich cooked on the stovetop. There has been no testimony that that does not exist (Tendler, Tr., p. 21, l.15–24).

The Petitioner's attorney argues that the type of food served herein is against the restrictive covenant that limits the type of food to pizza and other related items. He argued that a Jamaican beef pattie is certainly not part of Tuscany. It's not Italian food. It's not related to pizza. He also states that the bagels, the cream cheese and the serving of breakfast are also unrelated food items. They attorney argues that the breakfast items, bacon, egg and cheese sandwiches are all of those things are not related to pizza. (Tendler, Tr., p. 23, l.2–5).

The attorney further argues that the testimony of the expert substantiated that for the type of cooking that was performed at the property there was no correct hood installed. "They had a type 2 hood, which is only for hot air as opposed to a type 1 which ventilates grease". (Tendler, Tr., p. 24, l.9–15). The attorney argues that "[w]hen you're making French fries, calamari, egg sandwiches, you're going to have grease, you're going to have airborne grease particles and when your hood is the wrong type of hood, you're going to have buildup of grease and odors. One thing that was testified to is the ventilation system. The ductwork did not come all the way to the end. It actually ended before it got to the grille, leaving a significant gap in between. Grease built up there, and I forgot whether Mr. Bodenmiller called it like a fire trap or some sort of explosive situation, but clearly, it was a dangerous situation there, and it continues to be a dangerous situation. He also testified that there were other problems with the setup, not just that it was the wrong hood. It wasn't insulated which would have controlled the odors". (Tendler, Tr., p. 24, l.16–25; p.25, l.1–6).

Then he pointed out that "[t]he early termination also meant that the discharge went into the ceiling plenty and it went through. The gauge was not the ridged gauge as required by the code. It was the wrong type of sheet metal that was there, so, clearly, this was done the wrong way, let's just say by the Respondent, and he was served with a notice to cure, he didn't cure it, said he put a filter on but didn't cure the smell. He didn't cure the connection. He knew about it, he had his own expert [went] in and that, by the way, it's part of the notice to admit that they admitted to. Their own expert report speaks about early termination of the—excuse me, of the ductwork and their own expert testified through the report—not testified, but put in a report that said that there was a pizza smell that said that there was a problem and his ventilation problems that they installed was part of it". (Tendler, Tr., p. 25, l.6–22).

After arguments, the Court reserved decision on the motion and directed the Respondent to proceed with its prima facie case.

The Respondent called Barbara Kenworthy. She testified that she worked in the subject building for many years as an employee of "Express Yourself.com LLC" operating under business name of "Smart Sign". From January 2005 to January 2015, her employer operated its business from 32 Court Street. Her company first occupied the 21st floor and due to expediential growth, moved to the 22nd floor-the top rental space in the building. At various times, they occupied both or either the 21st floor or the 22nd floor.

Several years after she moved into the building, the first thing she noticed was there was an overwhelming smell of pizza, which in her opinion was perfectly delightful, because she loved pizza. The overwhelming smell of pizza was only for a couple of months. After a few months of their occupancy, she never smelled pizza ever again on the 21st and 22nd floors. After June 2013, it was simply not there. (Kenworthy, Tr., p. 30, l.15–18).

The witness testified that her work hours where Monday through Friday from about 9 o'clock a.m. to 7 o'clock p.m. She took the elevator every day. She stated that other than the people carrying pizza in the elevator, she never smelled pizza in the lobby area either. (Kenworthy, Tr., p. 31, l.3–13).

On cross-examination, the witness indicated that she ate at the restaurant at least once a week, and when she ate there, she ate pizza. She acknowledged that some other kinds of sandwiches were prepared and served there.

The witness stated that the only time that she actually smelled pizza was within the first month or two, and then she did not smell it any longer.

She know that there were issued between the MONA GORA and the Respondent. She was advised by the management office that the tenant had put in some kind of ventilation system. "[E]verybody in the building knew that Mona was upset with them and many of us felt it was unwarranted so we checked with each other; the old rumor network ." (Kenworthy, Tr., p. 33, l.24–25; p.34, l.1–2).

She further stated that "[b]efore we moved there, again, the rumor mill was that there were many problems that were coming up. Actually, someone from Mona's office had asked people in our office if we would go in and testify that we smelled the pizza smell and no one wanted to, because nobody smelled it. So, right before we left, I had also announced my retirement from the company and my last day at work, I went down to the pizza store and said, hey, look, if you really need someone to say there was no smell, I'd be happy to do that for you." (Kenworthy, Tr., p. 34, l.18–25; p.35, l.1–4).

The witness further stated that she came in voluntarily without a subpoena and was not paid for her testimony. There office space was on the 22nd floor, and the landlord was on the 23rd floor. She obtained the information about the ventilation system from other tenants in the building. She stated, "I believe that I notice, we all noticed it. I knew some of the people that worked under Mona, and I asked them what changed, and they said, they put in some kind of a ventilation system. I think—I mean, I'm rephrasing, I don't remember what their exact words were" (Kenworthy, Tr., p. 36, l.6–11).

She was asked if there were ever any complaints in her office during the time frame that she smelled the pizza, and she said "no, actually, what everybody said was the smell made them hungry and made them salivating for pizza". "Question: Did anybody come to you from management, or the owner herself, regarding the smells in your particular unit? Answer: I don't think they did until last year, and she didn't come at all, she would send somebody to do it. When I saw her in the hallway, she would ask me if I smelled it, and I would tell her no." (Kenworthy, Tr., p. 37, l.6–12). Although the witness could not remember the exact date, when further inquiries were made if there was no pizza smell after 2012, the witness answered, "whatever that change date was, I know it was the first few months they were there, it was there and then it was gone." (Kenworthy, Tr., p. 39, l.7–10).

She lastly testified that she did not have a bad relationship with MONA GORA.

The witness was then excused.

The Respondent called Salvatore Casaccio, the joint owner of the pizzeria with his mother, Maria Casaccio. On May 24, 2011, he entered into a lease agreement with the Petitioner for the subject premises.He testified that he has been in the pizza business for nearly 25 years and has been in this neighborhood for approximately 25 years. He stated that he had been in the food business for probably 40 years. He had a pizzeria at 409 Fulton Street, Brooklyn, NY, currently, occupied by the "Shake Shack". Court Street Pizza is the same kind of business; he is opened for business 7 days a week and works from about 7 o'clock a.m. to 8 to 9 o'clock p.m.

The witness testified since he took occupancy, the same signs that were currently up in the storefronts were the signs that were there from "day 1". (Casaccio, Tr., p. 46, l.20–22). The menus boards that were admitted into evidence as Petitioner's Exhibits "11," "12" and "12–B", he testified were the identical menu boards that were located inside of his store since the day he opened.

The witness testified that Petitioner's Exhibits "13–A" through "13–B," specifically "13–A" was a menu sign inside the pizzeria. He said that "the menu sign had been there since I opened up and then I removed this sign because Mona didn't like it. It was handwritten." (Casaccio, Tr., p. 48, l.8–10). Although he could not remember the exact month that it was removed, he believed it was in 2012, a few months after he opened up he removed it when MONA GORA said that she didn't like the way it looked. The sign was up there when he moved in about May 2011 and removed the sign in or about January 2012.

The witness also stated that the menu boards admitted as Petitioner's Exhibit "14–A" through "14–E" has been in his store since he opened; only exception was Petitioner's Exhibit "14–F", a photograph of bagels on one of the counters in the pizzeria, that was relatively new. He confirmed that all of the menu items are for sale to the public except for the gyros. The witness further identified a marquee that was outside of his location and "A" sign (Petitioner's "15–B"). The "A" sign he said: "I used to have outside which I was told to remove it by my landlord". "She was fixing the building and they put up scaffolding. Scaffolding and they put it up. It was supposed to be up a couple of weeks, but they had it up for about a year and a half, and there was nowhere to see my location. I couldn't see my store, and I put an A-sign basically on the other side of the scaffolding where it was not impeding any traffic and nobody could get to it because it was on the other side of the thing, but she didn't like it, and she made me take it down." (Casaccio, Tr., p. 52, l.19–25; p.53, l.1–5). When she told him to remove the sign, he removed it immediately.

The marquee outside of the store, he testified was perpendicular to his store, and did not contain any lock; all you have to do is just pull it open. "What happened was originally, I was going to build a new storefront there. Due to landmark limitations, we were not allowed to do it so the marquee has to remain there, and I was not allowed to remove it. So, when there was nothing in it, it was very dirty and filthy. So, when people were walking into my store, it wasn't pleasing, so I spoke to Mona, she said you could put something in there, and I put a couple of things in there that she did not like, and eventually, she didn't say anything about what I had in there, but she didn't like this writing in the bottom. So, I took that out, and I put something else in there but the picture was okay, she said she had no problems with the picture." (Casaccio, Tr., p. 54, l.18–25; p.55, l.1–6).

Respondent's Exhibit "E", admitted on consent, is a photograph of the front of the building that was taken by the Respondent that showed the marquee on the wall of the left side of the property and the other stores to his right. The witness testified that he took this photograph because MONA GORA had complained about his sign; the sign was not pleasant-looking. This photograph was meant to show that his pizzeria sign was not a bad-looking sign in comparison to the other sign of the other tenant next to him that was burnt out. He also wanted to show that the other tenants have signs in their windows, and I wanted to show her that my sign is pretty pleasant-looking (Casaccio, Tr., p. 59, l.3–7).

The witness reviewed additional photographs and testified about Petitioner's "10–A" through "10–I". Specifically, Petitioner's Exhibit "A", I see a pot of sauce being heated up; I see a pot of water where I used to make my macaroni, my pasta. It's marked fryer, this is not a fryer, it's hot water," said the witness. (Casaccio, Tr., p. 59, l.22–25). The witness testified that the slicing machine is used to slice mozzarella for their mozzarella pies.

The witness acknowledged that the area where he was storing his personal property in the basement was for storage. He kept his flour, salt and sugar in that area. The witness stated that for sanitary reasons, the aforementioned products were kept in properly sealed receptacles.

In looking at the photograph of the countertop, the witness stated that countertop was not installed by affixation to the wall or floor, "those are separate; basically, they are separate small counters that are next to each other, it's not installed or anything. They just stand upright." (Casaccio, Tr., p. 61, l.5–8).

The heating units, the witness said: "that's those new magnetized heating units that work on magnesium, they don't work on coils or on any kind of—in other words, you can touch that and put a regular pot on it and nothing would happen, only a particular type of metal would get hot with that unit." (Casaccio, Tr., p. 61, l.19–24). He stated that the picture of his hand on the heating unit was taken to show that he could not get burned even with the unit on; the unit does not produce heat as alleged by Petitioner unless it is united with magnesium pot. No heat is generated, particularly when the unit is not in use.

The witness also looked at Petitioner's Exhibits "22–A" through "22–D." Particularly, the photograph of the slop sink, the witness testified that the slop sink is not in a room where food is prepared, and that the pipe that was coming into the sink was a condenser from the refrigerator. This pipe was intended to prevent water from the refrigerator from dropping to the floor (Petitioner's Exhibit "22–A".) He identified Petitioner's Exhibit "22–B" as a prep table; stainless steel, not attached to the floor or walls and located in the basement where he has the dough machine to make dough and dough balls. Petitioner's Exhibit "22–D," although a poor quality photograph, is his grease-trap. He testified that the "our grease trap which is in the area of the building's basement, and what that odes is to prevents-it's a back-flow prevention device. What it does is our sink is connected to this grease-trap and the water is filtered through before it goes into the system. The reason it looks like that is, because the building had about three to four floods and they went into my basement and the building sewer happens to be in this room, which is in my basement and the floods caused a lot of damage in my area, I lost a lot of inventory, I lost a lot of material and the grease-trap, the metal around it got a little rusty from the water from the basement." (Casaccio, Tr., p. 64, l.20–25;p .65, l.1–3; p. 65, l.19–25; p. 66, l. 1–7). The witness further testified the basement flooded at least three times and it happened after heavy rains. The last time flood was in 2012.

With regards to the signs in Petitioner's Exhibits "15" and "15–A", he stated that there was placards; they can stand up and be placed anywhere. He admitted that the placard on the right was affixed to the window, but has been removed when he was informed by MONA GORA that it had to be removed prior to this case.

Petitioner's Exhibit "16", the witness stated showed a photograph of the front entrance of the pizzeria. "In the window, there's a letter from the Health Department, which was required to have and displayed it where everyone can see it, and on the door, I have stickers of credit cards and delivery services that I use so people can call up and order either online or by telephone and pay with a credit card." (Casaccio, Tr., p. 70, l.7–12). The witness further stated that "I didn't realize that the stickers were a problem. When she told me to take the stickers out of the window, I took the sign out of the window, but I didn't realize that this was going to be such an issue, that the stickers on the door were going to be a problem. I was under the assumption it was never brought up that those signs were a problem until just recently and then I removed them, maybe a couple of months ago. He stated that it was Rachel who told him to remove them, but he didn't know exactly who, but it was a management company." (Casaccio, Tr., p. 32, l.18–25; p .71, 1).

Petitioner's Exhibits "17–A" through "17–D", the first photographs of the phelum, the witness testified, is not part of his space. The holes in the ceiling in Petitioner's Exhibits "17–A", the witness stated he does not know who did it, and he did not authorize any work to be done in that area. "I saw the openings and holes everywhere, and in the walls, there was a staircase next to my space that went to nowhere, and my ceiling was suspended—I mean, it was just a mess the way this work was done.—I know that they had separated two locations, that my store was usually two floors, and they made an office above one so whatever they did to suspend my ceiling was just a mess." (Casaccio, Tr., p. 75, l.17–25). As equally important, he further testified that he did no work on the ceiling, and the suspension ceiling was there when he rented the store. "Again, it is the same thing, these are holes that I was trying to patch up and—but it was just impossible to do so, if you notice everything is all open over there." (Casaccio, Tr., p. 76, l .9–12).

He stated that he was trying to get permission to do the patchwork, but he was never granted permission by the Petitioner or management. Not only did he ask management for permission to do patchwork in the phelum space, he even wrote a letter. I was told to just leave everything the way it was. He said that he spoke to somebody in management by the name of Mr. Leader and explained to him that if there were odors going into the building, they were probably going in through those holes, however, he was not granted permission to perform the work. He stated that he had observed this space a few months after he moved in, and he would describe it as "beams and cables and holes and debris. I observed a lot of stuff up there, it was a mess" (Casaccio, Tr., p. 78, l.7–9).

A look at Petitioner's Exhibit "18", a photograph of the exhaust system in the front of the building, Sal Casaccio, stated that he didn't open up this grille and had not been asked permission to do so either. He admitted that he had the exhaust system which he installed within six to seven months after he opened the pizzeria and he has installed at least three such systems since his occupancy.

The first system was ductwork without a fan which was installed in about 2012. MONA GORA told him that there was a strong smell of pizza and she wasn't pleased. He then, installed a new system with the fan to pull the air out quickly and hopefully eliminate the problem in or about March, or November or December 2012. Then, he was informed by Management that the second system wasn't sufficient, gave him the specifications and he used his own mechanic, with their consent, to comply with those specifications. The third system was installed-an even larger system.

The witness further testified in Respondent's Exhibit "C" depicted a staircase that originally went to his area above his space and it went to the second level in that property. This stairway is located behind his back wall, right next to the ovens. He stated that his staircase ended there, and once it ended, on the other side, there is a staircase going up. The staircase cannot be seen from inside of the property. The witness stated that when he first got there, this condition existed. His space had been two spaces. Between the first and the second floor, he stated that there was a slab in there and an office was created on that level. The witness testified that in order to get into the space behind his pizzeria, you have to take the elevator to the second floor and then walk down a set of stairs to get into the space behind the wall.

The witness then referred to Respondent's Exhibit "D," a photograph of his front window which had a shade. He said that in the "summertime especially the sun is so hot that it goes through the front window and it's just unbearable the heat that it bring in, so we put a shade in there just for like an hour or two in the afternoon when the sun is directly in front of that" (Casaccio, Tr., p. 98, l.4–9). "He received a letter from management on August 7 and they told us that they wanted me to take that down" and I did. (Casaccio, Tr., p. 98, l.4–20).

Respondent's Exhibits "F–1" through "F–7" were admitted into evidence except "F–2", a series of photographs depicting a food vendor that operates directly in front of his place of business since the commencement of his tenancy. "He cooks meat, he cooks on an open fire, he cooks meat, he cooks gyros, he cooks franks, beef, chicken and sauces. He cooks a lot of stuff on there; sells soda." (Casaccio, Tr., p. 100, l.21–24).

The other photograph depicted taken by his employees probably at the beginning of 2013. There was scaffolding around the building that was removed shortly after they came to court. The photographs that depicted the electrical work and other cables in the above ceiling were not installed by him or his staff. He said that the first time he saw the condition was when they went there to change the exhaust system. These pipes were there before he got there and they remained that way through and including today.

The witness further testified that he had credit card stickers on this door and when management objected to them, he removed them.

He further stated that he was never told to remove any signs from the marquee.

The witness further testified that he did obtain a building permit to construct his pizzeria. He hired an architect; developed plans and obtained the approval from the Petitioner and then the DOB. He was able to get the signoff and ultimately, a letter of completion. He stated that the timeframe from the work being signed off on by the plumber and the letter from the DOB issuing the letter of completion was about a week in the summer of 2012.

His other plans, he stated that the DOB lost his plans twice, and he couldn't go ahead with construction. He stated that there was a letter which was given to him by the DOB telling him to reconstruct the file. He did not have the letter with him in court. He then said that, "And then I resubmitted the plans in April 2013 and they lost those plans. So, in June or July, probably around the beginning of July, I spoke to Brad Leader, who is the managing agent for the building, and I emailed Brad and told him that as best I could recollect." (Casaccio, Tr., p. 124, l.5–24). The witness further testified that as of July 2013, the plumber that they had recommended to him to use had the plans but either way, I needed him to get it signed off on so I could finish getting the letter of completion. The witness further stated that "Brad Leader doesn't work for the company anymore and then for about 30 to 60 days nothing was done and then I get something in the mail saying that I'm being sued of being evicted or you know." (Casaccio, Tr., p. 125, l.22–25).

The witness testified about the sprinkler system to the extent that he first filed for the sprinkler system application at the end of 2011. He stated that he filed the sprinkler system application "because I was having so much problems with landmarks, getting plans approved that my four months, I had a four-month timeframe to do the buildout before I started paying rent, and I was never aware that there was a landmark issue going to happen and my four months expired and my landlord refused to extend that timeframe. So, I started paying rent four months even though I did absolutely no work in the place as of yet, and it wasn't open, and not only was it—not only would she not give me any extended time, she was charging me late payment, because I wasn't paying on time. So, I was afraid that if I started doing sprinkler work and other kind of work, that I would never be able to open up on time or as quickly as possible. So, what I did was, there was no reason for me to do a sprinkler system, it was not required by code to do a sprinkler system, I was only doing it to appease the landlord". (Casaccio, Tr., p. 126, l.20–25; p.127, l.1–12). He also acknowledged that he had submitted another construction application in early 2013; the application was approved, the permit was pulled but no work was never started at the property. It appeared to be too much red tape with Landmarks.

The witness described that the front end of the building was more narrow than the rear end of the building, and that the contractors had to insert a piece of the duct then insert another and seal it in order to install the system.

Petitioner's Exhibit "26," a copy of records from the Department of Buildings, were admitted into evidence over Respondents' objection.

On cross-examination, the witness testified that his initial alterations were the installation of an oven, sink and venting system, and a walk-in refrigerator/box installed downstairs. By the end of 2011, the initial construction was complete.

The witness further testified that the plans that were submitted in Petitioner's Exhibits "4" and "5" were not the final plans for the subject premises, because there were subsequent changes.

On further examination, the witness testified that there were three sets of plans that had to be submitted to the DOB. The first set of plans were for general construction. The witness further testified that he filed the plans with the DOB; the objection was from the Landmark Preservation Commission ("LPC"). He then sent the plans to LPC, which was signed by the landlord, and LPC rejected them, "and what they said was that it's a landmark building which is the first time I heard about, this was the first time since September that the building was landmarked." (Casaccio, Tr. 2/11/15, p. 15, l.1–4). He further testified that when they sent the plans to LPC, they rejected them. They had to submit new plans again to conform with LPC and then finally LPC approved the plans probably about November or December 2011 including the construction and the sprinkler system.

Petitioner's Exhibit "28", subpoenaed records, from DOB were admitted into evidence on consent.

On cross-examination, the witness stated that he was not cooking the tomato sauce in the pots as depicted in Court's Exhibit "1". He stated that he was only heating up the sauce and stated to the Court that there is a difference between cooking and heating the sauces. Although he described the process, he did not reveal his "trade secrets." He did, however, state that he added to the sauces fresh tomatoes, lots of other things before it was heated up, fresh basil, and fresh parsley. The witness did not deny that the food was heated up in the basement and the prep work was done in the basement. He stated that he not only heated up sauce in the basement, he also heated up sauce upstairs and had been done so since he first opened the pizza store.

During cross-examination, the witness stated that Petitioner's Exhibit "10–A" through "10–F", depicting certain pots in the basement contained sauces for heating up purposes only and for making pasta in induction or magnetic burners. He further stated that cooking and heating were two different processes and heating was not necessarily cooking. For pasta preparation, the water does not boil. He stated that most of the pasta is cooked in the ovens. "It's half-cooked, and what we do is heat it up." (Casaccio, Tr. 2/11/15, p. 31, l.10–11).

"I heat water. It doesn't boil. That unit is not hot enough to boil water to the point it's going to evaporate, if that is what you are going to asking." (Casaccio, Tr. 2/11/15, p. 31, l.24–25; p.32, l.1).The witness admitted that he uses the counters in the basement for the purposes of food preparation and did not know that he need permission from the owner to prepare food in the basement.

The witness acknowledged that certain menu items were fried and all frying was performed upstairs; he has never fried any type of food downstairs in the basement.

Petitioner's Exhibit "23–A" and "23–B" depict a tabletop fryer that he uses to prepare the mozzarella sticks and chicken wings. He distinguished a deep fryer from a tabletop fryer. A deep commercial fryer, he said, is like the ones seen McDonald's as opposed to his type of fryer that is the type of fryer used in homes; counters top or tabletops fryers.

The witness acknowledged that he makes eggs, bagels, croissants, cheese sticks, bacon, egg sandwiches, fried egg sandwiches and other breakfast sandwiches. In addition, he prepares for public sale juices and smoothies. He testified that he sold these items since the inception of his tenancy. The only exception was the gyro; which he never sold. He stated that he did not prepare all the items on the menu; it is dependent on the demand for the item.

He specifically said that he has prepared buffalo wings, Jamaican beef patties, French fries, turkey bacon only and egg sandwiches since 2012, shortly after he commenced his tenancy at the property, and he continued to sell those items. The bacon is not pork bacon. He does not sell ham. The only pork products are sausages for the pizza. The bacon, "[i]t's cooked on the grill. We have a small tabletop grill, again, something that you buy in Sears, and we use it. It's this big. You can put like two little pieces of bacon." (Casaccio, Tr. 2/11/15, p. 51, l.6–9).

As to the exhaust system, the witness was asked after receiving the report, did he do anything to remediate or to fix the exhaust and testified as follows: "I was not allowed to by my landlord. I spoke to Rachel, who was the managing agent at that time, and I tried to speak to Mona, but you can't speak to Mona, and I asked a million times, not only for that but for everything else. It's written, I have a letter where I was begging Mona to meet with me, and she refused. I asked her what you want me to do about this, and they told me to not do anything about it, because we're going to be discussing it at court, because at times we were trying to resolve the problem. Then, what happened. It happened more than once. I asked twice." (Casaccio, Tr. 2/11/15, p. 68, l.5–14).

The witness further testified that "the menus were hanging from the ceiling, not on the walls as stated by the Petitioner's attorney. They were hanging from the ceiling, and they were from the ceiling on the side wall of the property. They were not on a wall, they were about 12 inches from a wall. They are hangings." (Casaccio, Tr. 2/11/15, p. 74, l.17–25; p.75, l.1). As significant, the menu boards/signs were there from the first date that he opened his restaurant.

The witness further testified that Petitioner's Exhibit "11", are signs that he removed and subsequently, replaced by the sign depicted in Petitioner's Exhibit "12–A". The witness stated that once he had removed the menus, he did not get permission from the Petitioner to reinstall the menus.

He also acknowledged that he did not have authorization to put up the bamboo shade.

Petitioner's Exhibit "15–A" was installed by the Respondent, was located in the interior of the pizzeria and could be seen from the street. Further, the wheat grass sign is a sign that is sitting on the ledge of the window and he did not get permission for its installation. He further asserted that although the Petitioner objected to his handwritten signs, there was no objection to the other sign. When the Petitioner did not object to the wheatgrass sign, he moved the sign to the marquee. The witness further testified "the owner knew I was putting fixtures in that box from day one. She absolutely knew we were putting things in there, and she told me what she didn't like, and when I put something in there that she didn't say anything, I assumed she liked it because she didn't say nothing, but she made me change pictures in that box, many times." (Casaccio, Tr. 2/11/15, p. 88, l.15–20).

After cross examination, there was minimal redirect and no re-cross.

At the end of the testimony of Sal Casaccio, the Respondent rested and the Petitioner waived rebuttal.

Both parties agreed to submit post-trial briefs in lieu of summation. Post trial briefs were submitted simultaneously to the Court.

POST TRIAL MEMORANDUMS OF LAW

The Petitioner argues in its post-trial memorandum of law that the Respondent has demonstrated a "callous" disregard for both the lease and the law in their pursuit of profit "by intentionally and willfully failing to comply with the terms of the lease agreement". The Petitioner argues that the Respondent has an illegal and improperly installed ventilation system, which is laced with "liquid fluid". The Petitioner states that this condition causes odors, particularly stale pizza dough to permeate throughout the building.

Additionally, the Petitioner argues that the ventilation system is not in compliance with New York City Regulations. The Petitioner argues that the illegal ventilation system is a danger created by the Respondent's cooking in the premises, is in violation of the lease and is tantamount to having no ventilation. The Petitioner argues that the Respondent admitted cooking food in the basement that is prohibited by the lease; and uses a deep fryer in an unventilated area also in violation of the lease and New York City Regulations. The Petitioner further argues that Respondent prepares food in the basement in contravention of the building certificate of occupancy.

The Petitioner also states that the Respondent has failed to comply with the lease by failing to closing out a general construction permit and sprinkler system as required by the lease and the law.

The Respondent has also, according to the Petitioner, admitted that they have continually exhibited signs, stickers and other advertisements in the window and window boxes of the premises without the written or oral authorization and consent of the Petitioner.

The Petitioner then, in its memorandum of law discusses four violations that the Respondent failed to cure after service of a notice to cure and notice of termination, to wit;

1–Respondent installed signage, advertisements and lettering without the Petitioner's prior consent;

2–Respondent is selling prohibited items in the subject premises;

3–Respondent failed to install adequate ventilation which resulted in odors emanating throughout the building; and

4–Respondent failed to close out permits obtained in the buildout and the sprinkler system.

Petitioner argues that the Respondent's failure to obtain a Yellowstone injunction now bars the Respondent from curing these lease violations and therefore, should surrender possession of the premises.

The Respondent failed to close out the general construction permit before the expiration of the notice to cure and admitted this fact in testimonial evidence. The Petitioner argues that the Respondent has offered no explanation from the delay in getting these sign-offs after the notice of termination for more than 1½ years. The Petitioner argues that even though the Respondent may have gotten a sign-off, the application remained open. The letter of completion was issued on February 10, 2012, but was not signed-off until October 16, 2013–, more than 1½ years after the alteration was completed and two months after expiration of the notice to cure. In regards to the sprinkler application, the Petitioner argues that the sprinkler application was closed, the permits issued, but the sprinkler system was never completed, and the sprinkler application remains open to this date.

First, the Petitioner argues that it was incumbent upon the Respondent to obtain a Yellowstone injunction. His failure to apply for the injunction is fatal and may not be remedied at this time.

Second, Respondent did not have his plumber testify and this Court should impose a negative inference against the Respondent in this matter.

Third, the Respondent was unable to explain the gap of almost two years since the completion of the alteration and the opening of the store, and the issuance of a letter of completion. The Petitioner argues that the failure to close out the applications and permits and obtain a final approval until after the expiration of the notice to cure and notice of termination has been proven "beyond a reasonable doubt" and not curable.

The Petitioner further argues that the Respondent admitted to improperly displaying signage, advertisements and notices. The Petitioner states that the Respondent acknowledged the white board and the other signs that were removed from the interior of the building and placed in the marquee were also without the written or oral authorization and consent of the Petitioner. Relying on Rule 5 of the lease, the Petitioner argues that the Respondent has uncontrovertibly exhibited signs at the demise premises without authorization and consent. The Petitioner argued that the credit card and delivery services stickers that were on the door in the premises were admittedly "removed maybe a couple of months ago", well beyond the notice to cure, dated August 16, 2013.

The Petitioner argues that they have established offensive odors emanated from the Respondent's premises and throughout the building. The Petitioner relies on the testimony of Mona Gora, Rachel Tuckerman and Glenn S. Kessler,; each stated the various means and times that they smelled the strong odor of pizza, cheese and baking odors. The Petitioner discredits the testimony of Respondent-witness, Barbara Kenworthy, that stated that the pizza smell had completely gone away after three to four months after the commencement of the Respondent's occupancy.

The Petitioner also states that SAL CASACCIO never denied the odors emanating from the premises. The Petitioner asserts that not only did the Petitioner prove that pizza odors emanated from the premises, it proved defects and shortcuts taken in installing the ventilation system and hood, which likely caused the propagation of the odors.

The Petitioner relies on the expert report and testimony of CHRISTOPHER Bodenmiller, P.E. who stated that the exhaust duct is squeezed to fit into the opening and positioned behind the grille and is not directly connected. The Petitioner further argues that CHRISTOPHER Bodenmiller, P.E. and Respondent's engineer, ABS ENGINEERING, PLLC. both agreed that the ductwork was crushed in and squeezed to fit into an opening at a point of its termination. The Petitioner argues that the Respondent carelessly and callously allowed this condition to exist long after his engineer put him on written notice. He further stated that both, Petitioner and Respondent's engineer, confirmed a buildup of grease at the termination of the duct, a dangerous condition which CHRISTOPHER Bodenmiller, P.E. stated was "liquid fluid" "on a wood beam." In addition, Respondent's ventilation duct is the wrong gauge and not insulated.

The Petitioner argues that provision 87 of the lease does not allow the Respondent to emit grease though its exhaust system, however, the Respondent nonetheless allows grease to be emitted from the exhaust system.

Petitioner argues that if the premises had been properly ventilated, there would have been no exhaust going into the phelum. All fumes and odors would have been discharged through the grille, but instead the Respondent took cheap shortcuts that allowed grease and fumes to be exhausted into the phelum.

Petitioner argues that not only did the Petitioner prove the existence of the odors, the Petitioner also proved how the odors were dispersing through the building. The Petitioner argues that this same evidence proves, beyond dispute, that the Respondent's ventilation system was not only ineffective and illegal, but has created a significant danger to the hundreds of tenants in the building and other occupants on a daily basis; the Respondents had knowledge of this fact and made no attempts to correct the condition.

The Respondent also was cooking and boiling water on the hotplates in the basement of the building that were hooked up to extension cords plugged into non-GFCI outlets, and this condition existed until the court issued a temporary restraining order to cease and desist.

The Petitioner states that the Petitioner also proved that the Respondent's sale of fried calamari, mozzarella sticks, Jamaican beef patties, French fries, eggs and bagels violates the permitted use clause of the lease, namely, Article 40, which prescribes a restrictive covenant against food sale and preparation except "the sale of pizza, Italian food, salads, desserts, related food items, non-alcoholic beverages and for no other purpose whatsoever."

The Petitioner argues that it is undisputed that the Respondent admitted in his testimony on cross examination that he has other food items on the menu that were not allowed under the lease (see also Petitioner's Exhibits "12," "13," "14" and "15"). The Respondent admitted that he served buffalo wings, French fries, fried calamari and Jamaican beef patties. The Respondent uses a deep fryer in the premises with no ventilation hood (See Petitioner's Exhibits "23" and "23–B"). Additionally, the Respondent admitted that he prepares eggs, turkey bacon, grilled chicken and Philly cheesesteaks on a cooktop grill in the premises. All of these items require a type 1 hood, however, the Respondent has a type 2 hood.

Petitioner asserts that Respondent's definition of related food is silly and is contrary to the spirit and letter of the contract between the parties. The Petitioner states that everyone is aware of what is ordinarily sold in a pizza place, which is Italian food and that these other items are not Italian food. Petitioner argues that when the lease stated that the Respondent could sell pizza, Italian food, salad and desserts and other related items, it could only mean other Italian foods typically served in a pizza restaurant. It cannot mean Chinese, Greek, Jamaican, or Middle Eastern food, diner food, bagels, cream cheese, or breakfast food as contended by the Respondent.

The Petitioner contends that the Respondent's testimony is incredulous; his claims are bogus that he is in compliance with the lease. The Respondent's installation of a grill to make cheesesteaks, eggs and other items in the premises without any hood or ventilation is clearly in violation of the lease. The lease specifically prohibits "cooking" and the Respondent never sought permission from the Petitioner to alter this term of the lease. Petitioner relies on the testimony of CHRISOPHER Bodenmiller, P.E. who according to the Petitioner, stated that all fried and grilled foods require a type 1 hood for exhaust to handle the grease. "In short, the evidence shows that the Respondent lied on the stand and is willing to say anything no matter how illogical or impossible to defend this proceeding and willing to break all lease clauses and laws to turn a profit even at the expense of safety."

The Petitioner argues that a negative inference should be drawn against the Respondent for the failure to call the engineer and/or plumber, not even ABS Engineering, who prepared the report for the Respondent. "The court must therefore infer that ABS' testimony would have been the same as Mr. Bodenmiller's including, but not limited to, the fact that: A–The pizza odor emanated from the premises; B–That the exhaust fumes from the ovens were being discharged into the phelum; and C–That any holes which may have existed between the lobby and the premises had been sealed."

The Petitioner argues that the Respondent may assert equitable remedies such as waiver, only when the Respondents can claim clean hands. In this instance the Respondent has unclean hands by his continuous breach of the lease, endangering other occupants in the building by refusal to cure the defective and improper ventilation, continuously cooking in the basement and reckless refusal to install a type 2 hood. The Court should preclude any equitable relief.

The Petitioner also asserts that Respondent failed to prove any of its defenses, namely, breach of the lease by the Petitioner and proof that the Petitioner was responsible for any lease violations. The Petitioner argued that the Respondent never proved that the Petitioner was responsible for the dissemination of the food smells or any of the other allegations made in the pleadings.

The Petitioner states that while Respondent's expert report of ABS states that one cause of the food odor in the building maybe holes between the premises and the lobby of the building, however, this work was performed prior to the date that CHRISOPHER Bodenmiller, P.E. inspected the premises. The Petitioner argues that the lease requires the landlord only to maintain and make structural repairs to the roof foundation and exterior walls and not inside of the Respondent's premises.

Based upon the above, the Petitioner argues that this Court "must" grant a final judgment in favor of the Petitioner, grant a date for legal fees, grant the fair market use and occupancy from the time the Respondent occupied the premises after the termination notice expires and for cost for the Petitioner having to prove the items set forth in the notice to admit that was originally denied by the Respondent.

The Petitioner contends that it has sustained its prima facie case, and accordingly, is entitled to judgment as a matter of law. The Petitioner also argues that the Respondent should be penalized for their failure to respond to the notice to cure, and the Court should award attorney's fees and costs to the Petitioner.

The Respondent asserts in its post-trial memorandum of law that the Petitioner has failed to prove its prima facie. The Respondent relies on four of the specified claims in the notice to cure and notice of termination. The Respondent states that all of the evidence and testimony produced by the Petitioner regarding grease, deep fryers, hoods, food slicers, utilization of the basement, cleanliness and any other alleged code violation which are not specified in the notice to cure and notice of termination are not relevant.

The Respondent stated that upon service of the notice to cure, he immediately removed the signs affixed to his window and credit card and delivery stickers removed from the front door. The handwritten sign was removed prior to the service of the notice of termination; the placard, the only signage not removed, was not affixed to the window. The photographs admitted show that the front window in the subject premises with the letter "A" is from the Department of Health.

Regarding the marquee box, the Respondent argues that the relevant items needed to be removed from the box were removed and the items that remained there remained there because MONA GORA did not object. When emptied, the box became dirty and filthy and not pleasing to the customers walking into the space, so the landlord said she was okay with the pictures that were still in the marquee box to date and asked him only to remove any handwritten sign. Respondent removed all signs affixed to the window prior to service of the notice of termination.

As significant, the Respondent argues that the Petitioner could have, in fact, removed any of the signs in the unlocked marquee box and could have scraped off and removed any stickers on the exterior door without the Respondent's consent and at the Respondent's expense. More crucial, the Petitioner's conduct implied that the marketing signs in the marquee were not removed because the Petitioner made no further objections to the signage.

The Respondent also argues that the building permit ending in 530 was approved on November 16, 2011 to buildout the space. Once the space was completed and the sign-offs were completed by the plumber, the architect went to DOB and received a letter of completion. Between the time the work was completed and the plumber did his sign-off, the DOB lost the plans that prevented a final sign-off. The plans were resubmitted, and the letter was issued October 16, 2013. The Respondent argues that pursuant to paragraph 56, there was full compliance with this provision since the Respondent obtained a letter of completion within ten days of the plumber's sign-off.

The attorney also argues that the sprinkler system application was filed and was approved, however, no work was ever done regarding this application. No permit was ever pulled, and therefore, no sign-off or letter of completion was required by DOB. As to the sprinkler application ending in 1132, no permit was ever issued so Respondent was not required to get any certificate of completion and therefore, was in compliance with his lease.

The Respondent further argues that Section 56(b) of the lease states that the "landlord acknowledges that tenant shall complete alterations at the commencement of the term (the initial alteration) ." The lease does not define what is meant by "commencement of the term" or the "initial alterations." Regardless, the notice to cure and notice of termination only allege open building permits as a violation of the lease and as stated above, the Respondent was in compliance with the lease.

The Respondent states that the lease does not state or define the type of store that the Respondent would operate and does not define it as a "pizza parlor or Italian restaurant". The Respondent also argues that the lease does not specify the hours of operation, define the quality or what type of meal to be served during the morning, afternoon or evening hours. The Respondent argued that he is not in violation of the lease based on the fact that "the food that he sells are listed or detailed in the lease as specific foods that he cannot sell and are deemed "related food items."

The Respondent argues that the notice of termination states that the tenant failed to stop the discharge of odors from the building pursuant to Articles 3 and 46 of the lease. None of these two articles have any bearing on the issue of the discharge of odors. Landlord's notice to cure states a violation of Article 40 and 87 of the lease. Article 40 states that tenant will not permit obnoxious odors to be smelled outside the premises and states noxious odors will not be permitted. Respondent argued that the lease does not define what is meant by noxious odors or obnoxious odors. The Respondent argues that even the Petitioner's witness, Glenn S. Kessler, did not state that he smelled pizza burning on the 7th floor up until the date of his testimony in court on November 14, 2015. The Respondent proffers that Mr. Kessler was not affected by the pizza smell in his business in any way; he also did not say that anyone got sick from the pizza smell. He just stated that he smelled the pizza.

He also testified that he was happy in the building, had been there for many years and had recently renewed his lease. The Respondent also points out that they had thousands of people that go in and out of this property.

The Respondent stated that Rachel Tuckerman, Esq., the attorney for the landlord, stated that she smelled pizza and basically that was it. She never offered any testimony that the pizza smell ever made her sick, prevented her from working nor did she testify that anybody else was either sick or unable to work because of the pizza smell. In addition, MONA GORA stated when she comes into the lobby there was a faint smell of pizza in the lobby, and when she comes down the landing to the 22nd floor, she smelled some type of pizza or baked goods, and upon entry into the elevator at night, there's a very strong pizza smell or cooking cheese, that type of smell. The Respondent, once again, says that her characterization of the pizza smell was that it was a stale pizza smell and a cheese smell. She never stated that she got sick, that it prevented her from working, nor was she aware of anybody in the building that it prevented from working or affected them in any way.

The Respondent also states that CHRISOPHER Bodenmiller, P.E. never provided an opinion within a reasonable degree of engineering certainty, any of the material facts in the pleadings. The Respondent asserts that all the testimony regarding the exhaust system to the pizza oven including the grill on the exterior of the building, grease, hoods, fryers, as well as the holes in the walls of the building and in the lobby area as well as the phelum above are not relevant as the Petitioner did not prove that the pizza smell was obnoxious or noxious under the lease. It does not matter who is responsible for the holes in the building or why the pizza smell is entering the building, because the pizza smell is not in violation of the lease as it is not obnoxious or noxious.

Based on the above arguments, the Respondent claims no lease violations and any violations of the lease were cured by the Respondent prior to the service of the relevant pleadings and the Petitioner is not entitled to judgment as a matter of fact and law.

RULES OF LAW

TRIAL COURT EVIDENTARY FINDINGS AND DISCRETION

One of the true safeguards of our due process of law is our multi-tier judicial system. In this multi-tier judicial system, great deference has been granted to the trial courts as the trier of facts. It has been firmly established that "[t]he credibility of the witnesses, the reconciliation of conflicting statements, a determination of which should be accepted and which should be rejected, the truthfulness and accuracy of the testimony, whether contradictory or not, are issues for the trier of fact. The memory, motive, mental capacity, accuracy of observation and statement, truthfulness and other tests of the reliability of witnesses can be passed on with greater safety by a trial judge who sees and hears the witness than by appellate judges who simply read the "printed record" ( Barnet v. Cannizzaro, 3 A.D.2d 745, 747, 160 N.Y.S.2d 329 [citation omitted]; see LeBron v. Brentwood Union Free School District, 212 A.D.2d 5112, 5113, 623 N.Y.S.2d 117 ; Segal v. MacDaniel Ford, 201 A.D.2d 717, 608 N.Y.S.2d 324 ). See also Healey v. Williams, 30 A.D.3d 466, 818 N.Y.S.2d 121 (App.Div., 2d Dept., 2006) in which it was confirmed that the trial court's finding that the marital stipulation, which included a prescription against oral modification, was nonetheless orally modified and was supported by the evidence in the record. The trial court properly credited the testimony of the father in that proceeding upholding the above rule. In reviewing a determination made after any non-jury trial, the power of the Appellate Division is as broad as that of the Trial Court and it may render the judgment as it finds warranted by the facts, taking into account that in a close case ‘the Trial Judge’ had the advantage of seeing ‘the witness' " ( Northern Westchester Professional Park Assocs. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 [citation omitted], quoting York Mortgage Corp. v. Clotr Constr. Co., 254 N.Y. 128, 133–134,172N, 172 N.E. 265.E.265).

The Court, after review of all of the documentary and testimonial evidence, finds that the principal of the Petitioner and the Respondent corporation credible, in part, and not credible in other parts. Of greater significance, the Court did not find their testimony completely unworthy of belief; however, the Court will disregard that part of their testimony that the Court found unreliable and accepted that part of their testimony that was reliable.

As to their respective witnesses, it was apparent that of each witnesses had a working relationship with the respective parties including the "expert". Although purportedly disinterested witnesses, their working relationship with both principles, their testimony is biased and not totally objective as discussed below. But, their testimony, likewise, was credible and in conformity with the objective documentary evidence.

As the court has the discretion with the admissibility of evidence, the trial court and motion court are empowered to draw inferences and make findings of fact based on the evidence in the record. See Jacques v. Sears Roebuck & Co., 30 N.Y.2d 466, 334 N.Y.S.2d 632, 285 N.E.2d 871 (1972). "[W]here an adversary withholds evidence in his possession or control that would be likely to support his version of the case, the strongest inferences may be drawn against him which the opposing evidence in the record permits" ( Noce v. Kaufman, 2 N.Y.2d 347, 353 [1957]citing Perman v. Shanck, 192 A.D. 179 [1920] ; Milio v. Railway Motor Trucking Co., 257 A.D. 640[1940] ; Borman v. Henry Phipps Estates, 260 AD657[1940] accord Gryphon dom. VI v. APP Intl. Fin. Co., 18 A.D.3d 286 [2005] [an adverse inference could be drawn from plaintiff's failure to produce their own account statements, which documents were within their control]; Esterces & Assocs. V. Coastal Communs., 271 A.D.2d 286, 286–287 [2000] [the special referee properly drew an adverse inference against defendant where the referee reasonably assumed that defendant was more likely than plaintiff to have records evidencing payment and defendant failed to produce such records]; Fitzgerald v. Tamola, 199 A.D.2d 122, 123 [1993] [where an adversary withholds evidence in his control that would be likely to support his version of the case, the strongest inferences against him which the opposing evidence permits may be drawn] ).

ENFORCEMENT OF LEASE PROVISIONS BY THE COURT

Here, the covenants and conditions in the lease between the parties was intended by the Petitioner for profit and were designed to insure collection of the rent and the preservation of the property. In this case, the Petitioner claims material violations of the lease and the Respondent claims all objections were cured prior to termination of the lease.

The location of a business is often the cornerstone of its success. More than half of all small businesses rely on the rental of commercial property for the sale, distribution, manufacturing and production of goods and/or the distribution of services. In those rentals, many commercial tenants invest substantial sums of money in renovations and thus, enter into long term leases to recover the investment made in the property over the time of the lease.

In the case at bar, two principles of law are at work: general contract construction and the application of equitable relief to relieve a defaulting party of the terms of conditions of the lease agreement.

Generally, a lease is a contract, in essence, a form of agreement made by a landlord with a tenant for the use and occupation of real property (Rasch, N.Y. Landlord and Tenant Section 1:1–1:2). Therefore, it is no surprise that the principals of contracts govern landlord and tenant commercial leases; both legal and equitable principles of contract law govern the lease agreement between parties.

Often, the first question of concern is whether the underlying agreement is unequivocal and contains the necessary provisions to constitute a meeting of the minds between the parties. In determining whether or not an agreement is ambiguous is a question of law to be decided by the courts and only after an analysis of the four corners of the instrument (see Kass v. Kass, 91 N.Y.2d 554, 566, 673 N.Y.S.2d 350 [1998] ; Todd v. Grandoe Corp., 302 A.D.2d 789, 790, 756 N.Y.S.2d 658 [2003] ). Suffice to say, if any ambiguity exists in the instrument, then the courts will look to extrinsic evidence and may consider such facts in its analysis of the terms therein (see F & K Supply v. Willowbrook Dev. Co., 288 A.D.2d 713, 714, 732 N.Y.S.2d 734 [2001] ; Ruthman, Mercadant & Hadjis v. Nardiello, 260 A.D.2d 904, 906, 688 N.Y.S.2d 823 [1999] ).

A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms, without reference to extrinsic material outside the four corners of the document [internal quotation marks and citations omitted]. Goldman v. White Plains Center for Nursing Care, LLC, 11 N.Y.3d 173, 176, 867 N.Y.S.2d 27, 896 N.E.2d 662 (2008) ; MHR Capital Partners L.P. v. Presstek, 12 N.Y.3d 640, 884 N.Y.S.2d 211, 912 N.E.2d 43 (2009) ; Van Shift Holdings Ltd. v. Energy Improv Structure Acquisition Corp., 65 A.D.3d 405, 884 N.Y.S.2d 24 (1st Dept., 2009).

In implementing the lease, a court should not adopt an interpretation which will operate to leave a provision of a contract without force and effect. An interpretation that gives effect to all the terms of an agreement is preferable to one that ignores terms or accords them an unreasonable interpretation [internal quotation marks and certain citations omitted]. Ruttenberg v. David Data Systems Corp., 215 A.D.2d 191, 196, 626 N.Y.S.2d 174 (1st Dept., 1995). The lease should have a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion ( Greenfield v. Philes Records, 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, [2002], quoting Vreed v. Ins. Co. of North America, 46 N.Y.2d 351, 355, 413 N.Y.S.2d 351 [1978] ; see Williams v. Village of Endicott, 91 A.D.3d 1160, 1162, 936 N.Y.S.2d 759 [2012] ).

TERMINATION OF THE TENANCY BASED ON VIOLATION OF LEASE COVENANTS & CONDITIONS

Second, in commercial transactions, in the case law below, for over a period of fifty years, the courts have answered the proverbial call to rescue valuable commercial tenancies by developing various equitable remedies to level the playing field between the owners and tenants to avoid the forfeiture of valuable leasehold interests by tenants that have been noncompliant with the specific terms of the lease agreement, namely the timely and proper exercise of lease renewal extensions and defaults in the terms of the commercial leases.

For the purposes of this decision, the termination of the landlord and tenant relationship can occur based on the expiration of the terms of the lease or by action of the owner or tenant. A lease may contain conditions, condition limitations, and covenants. "A covenant is a promise to do, or to forbear from doing, a specific act or acts". Covenants may be express or implied (covenant that the lessee shall have quiet and peaceable possession and enjoyment of the lease land); personal or run with the land; dependent or independent-a landlord's covenant to repair and at tenant's covenant to pay rent are independent; whereas, a covenant of the landlord to pay for improvements may be dependent on the tenant's performance of the lease or independent thereof. As a general rule, restrictive covenants are not favored by the courts and are strictly construed. If a lease terms is capable of two constructions, the one which limits rather than the one which extends the restriction should be adopted. (2 Dolan, Rasch's Landlord and Tenant Summary Proceedings §§ 23:3–23:9 [3rd ed] ).

A condition is a "qualification or restriction annexed to a conveyance of landlords whereby it provide that in case of a particular event does or does not happen or omits to do, a particular act, an estate shall commence, be enlarged or defeated. All conditions are either precedent or subsequent. As a general rule, a condition in a lease is usually subsequent. Simply stated, a condition precedent is a condition which must happen or be performed before an estate (a lease) can vest or be enlarged; whereas a condition subsequent is a condition by failure or nonperformance of which an estate (a lease) already vested may be defeated. It gives the landlord, on its happening or not happening, a right to terminate the lease. (2 Dolan, Rasch's Landlord and Tenant Summary Proceedings §§ 23:8 [3rd ed] ).

Suffice to say, conditions are not favored by the courts since they tend to destroy estates. To avoid forfeiture in the event of ambiguity, as a general rule, courts construe it as a covenant so as to avoid a forfeiture of the lease interest. A provision that the tenant shall not assign a lease and the event of default, that the lease at the option of the landlord cease and terminate, and that the landlord may reenter the premises constitutes a condition. "A lease does not end eo instante upon the breach of a condition subsequent, but continues until the landlord enforces a forfeiture thereof by re-entry". In other words, it does not end instantly. The right of reentry may be the commencement of ejectment action or peaceable entry without force of a summary proceeding. (2 Dolan, Rasch's Lanldord and Tenant Summary Proceedings §§ 23:12 [3rd ed] ).

Lastly, a "conditional limitation" is a restriction or qualification annexed to a conveyance of land or lease, providing that the estate granted is subject to a limitation, which is future or contingent on the happening of which the lease is thereupon to expire instantly by the express terms of the instrument creating it. The mere occurrence of the stipulated contingency automatically terminates the lease; no other re-entry or any other act is necessary to end the lease. Three types of conditional limitations: nature, landlord created (sale of property) or breach by the tenant.

In summary, a clause that provides that a lease shall terminate upon the occurrence of an event, only at the option of the landlord, is a condition. The lease must continue until the exercise of the landlord's option to forfeit the lease, and that is by actual reentry.

On the other hand, when a clause clearly provides that upon the occurrence of an event the lease shall expire as if the lease by its terms had been limited to that time, then the clause is a conditional limitation-it must have the effect of definitely fixing an earlier date for the expiration of the lease than the original term prescribed in the lease; it may be by the happening of the stipulated contingency or a lapse of the period of time in the landlord's notice as prescribed in the lease.

LEASE FORFEITURES AS COMPARED TO NON LEASE FORFEITURES

The Court likes the manner in which it was said in the old case of Trent v. Corwin, Sup., 76 N.Y.S.2d 198, 202, ‘that the continuation rather than the extinction of grants is favored in the law, and consequently, the Court should proceed with care and caution’. Even more fittingly, ‘[f]orfeitures are not favored in equity and technicalities will not be permitted to work injustice or oppression’ (98 Delancey Street Corp. v. Barocas, Sup., 82 N.Y.S .2d 803, aff'd 275 N.Y.S.2d 802, 803, aff'd 275) when it is considered that the failure to complete the repairs was not due to any fault or negligence on the part of the tenant. 6th Avenue & 24th Street Corp., v. Lyon, 193 Misc. 186, 189, 82 N.Y.S.2d 806, 809. Stated another way, strict and full compliance or performance of covenant requiring tenant to comply with all laws, order and regulations of federal, state and municipal authorities must be tempered; it is governed by the standard of substantial compliance. And in cases where there was no evidence of injury to the landlord, tenant should not lose all rights to renewal. See Vanguard Diversified, Inc. v. The Review Company, 35 A.D.2d 102, 313 N.Y.S.2d 269 (2nd Dept., 1970).

"It is the rare writing that requires no interpretation" ( Bensons Plaza v. Great Atl. & Pac. Tea Co., 44 N.Y.2d 791, 792–793, 406 N.Y.S. 2 33, 377 N.E.2d 477 [1978]. In construing an agreement, "not merely the literal language, but whatever may be reasonably implied therefrom must be taken into account" (Sutton v. East Riv. Sav. Bank, 55 N.Y.2d 550, 555, 450 N.Y.S.2d 460, 435 N.E.2d 1075 [1982]. Thus, language that suggest a forfeiture of a lease should be sought upon narrow grounds and claimed violations of the lease provisions must be substantial in order to justify a forfeiture. Where the alleged violations of the lease are of a trivial and inconsequential nature, they should not be the basis of forfeiture. On the other hand, where the breach of a lease is material and where the tenant has virtually provoked the cancellation of the lease ignoring the landlord's legitimate demands, cancellation may be enforced. However, absent an expressed stipulation for a forfeiture, the beach of a covenant in a lease does not work a forfeiture of the term. For example, if the covenant constitutes repairs or construction, a rule similar to the rule in building cases has been adopted-substantial compliance. See City of New York v. Skyway–Dyckman, Inc., 22 A.D.2d 506, 256 N.Y.S.2d 840 (1965) ; Ogden v. Hamer, 268 A.D. 751, 48 N.Y.S. 500 ).

There are a host of commercial real estate cases that involve violations of leases including covenants, conditions and agreed on terms, and the central issue is whether the acts or omission of the rightful tenant is sufficient to deem the lease forfeited. The right to declare a forfeiture of a lease must be distinctly reserved; the proof of the happening of the event on which the right is exercised must be clear; the party entitled to must have exercised his right promptly; and the result of enforcing the forfeiture must not be unconscionable. In other words, to enforce forfeiture, there must have been a material, not a trivial, breach of the lease provision, and the breached provision must be material.

"Where the covenants of lease are substantially performed and no substantial injury results to landlord from the failure to comply strictly the tenant should not be subject to the severity of a forfeiture. (Ogden et al. v. Hamer, 268 A.D. 751, 48 N.Y.S.2d 55; Riesenfeld, Inc. v. R.W. Realty Co., Inc., 223 A.D. 140, 148, 228 N.Y.S. 1454, 153; Janks v. Central City Roofing, Inc., et al., 271 A.D. 545, 548–549, 67 N.Y.S.2d 355, 358."

In the early case of Fly Hi Music Corp. v. 645 Restaurant Corp.(64 Misc.2d 302, 314 N.Y.S.2d 735 it was determined that violation of the lease that consisted of the tenant's failure to file plans and obtain permit for required and completed work costing $7,000.00 and that constituted improvements to the premises that were not performed until after due notice of termination of the lease and commencement of the summary proceeding, did not constitute a substantial breach that would warrant termination of the lease. Judge Bentley, opined that "the violation itself did not constitute a fire hazard since the physical work had been done almost three years prior" and "justice demands that the landlord should be made whole and the tenant should not be subjected to an unreasonable forfeiture". "The circumstances disclosed the work had long completed although there was a technical non-hazardous violation consisting of a failure to file approved plans for a permit. Clearly the work done represents improvements to the premises and enhances its value". Id at 738. Here, says the Court, the landlord has been compelled to pursue and pressure the tenant to remove this technical violation to respond to Municipal court and pay a fine and to even pursue the eviction of the tenant. In that case, the court was powerless to award the landlord damages since the case was for possession and for use and occupancy.

In Lake Anne Realty Corp., v. Sibley, 154 A.D.2d 349, 545 N.Y.S.2d 828 (A.D.2d Dept., 1989), similar to Fly Hi Music Corp. v. 645 Restaurant Corp., supra, the Appellate Division, in affirming the trial court ruling, determined that a twenty year commercial tenant that had made improvements over a period of 10 years in contravention of his lease that provided that "tenant may not make. improvements without town approval, if necessary", should not be evicted "for the expansions/additions made without approval required where no substantial injury resulted to the landlord" from strict compliance. Id. at 349, 545 N.Y.S.2d 828. There were two significant findings: first, the lease did not contain an express stipulation for termination or forfeiture in the event of breach of the "TENTH" provision and further "absent an express stipulation for a forfeiture, the beach of a covenant in a lease generally does not work a forfeiture of the lease term (74 NYJr2d, Landlord and Tenant, §§ 773, 775; 49 AmJur, Landlord and Tenant, §§ 1020, 1021 )". Second, the landlord could not substantiate injury and the complained of conduct was "non-hazardous".

In Metropolitan Transportation Authority v. Kura River–Mgt. Ltd., 292 A.D.2d 30, 739 N.Y.S.2d 668, 2002 N.Y. Slip Op. 02004 (1st Dept., 2002), the Court in finding that the landlord could not terminate the commercial parking garage lease of 27 years because of the tenant's alleged failure to acquire and maintain required kind of insurance and the failure to name the new landlord and the managing agent as additional insured, was neither a material breach of the lease that warranted a forfeiture thereof. See also Fergang Holding Co., v. 165 Front St. Rest. Corp., 116 A.D.2d 455, 496 N.Y.S.2d 441, mod. to deny summary judgment 119 A.D.2d 496, 501 N.Y.S.2d 294 ).

In Freund & Freund & Co., v. Biscuits & Baths–Tribeca, LLC., 23 Misc.3d 1129(A), 889 N.Y.S.2d 505, 2009 Slip Op. 50999 (U), after trial, the trial judge summed it up best by finding that "to determine if there was been substantial performance the court must look to see if the respondent has fulfilled its obligations under the lease and looks to the following factors: Respondent is current in its rental obligation, has undertaken the renovation of the previously uninhabitable space at a considerable cost, there have not been any violations filed against the building by the DOB or LPC as a result of the renovations, the alternations have not affected the structural integrity of the building or building systems serving portions of the building outside, there has been no injury to the landlord or the demise premise from the respondent's failure to strictly comply with the lease. The court citing Ogden et al. v. Hamer, supra, Vanguard Diversified, Inc. v. the Review Company, 35 A.D.2d 102, 313 N.Y.S.2d 269 (2nd Dept., 1970), infra, where substantial performance is adequate as to maintain tenant's rights under the agreement. Additionally, the court determined that the items claimed by the landlord there were "non-material and deminimis" and further cited the cases of Two Guys From Harrision–NY v. S.F.R. Realty Assoc., 186 A.D.2d 186, 587 N.Y.S.2d 962 (2nd Dept.,1992) Helsam Realty Co., Inc. v. H.J.A. Holding Corp., 4 Misc.3d 64, 781 N.Y.S.2d 554 (AT 2nd & 11th Jud. Dists., 2004) ; Marshall v. Ahamed, 5 Misc.3d 136(A), 799 N.Y.S.2d 161 (AT 2d & 11th Jud. Dists.2004). Each case an interesting dynamic between the courts power to balance competing business interest as opposed to forfeiture.

As significant, as the Civil Court judge, he rules that "regardless of the immateriality of the breaches they should be corrected by Respondent, the court can order the correction of these inconsequential breaches ( Louis and Anne Abrons Foundations, Inc. v. 29 East 64th Street Corp., 78 A.D.2d 814, 433 N.Y.S.2d 132 (1st Dept., 1980)..."

In Helsam Realty Co., Inc. v. H.J.A. Holding Corp., 4 Misc.3d 64, 781 N.Y.S.2d 554 (AT 2nd & 11th Jud. Dists., 2004) holding that forfeiture provision of the commercial lease providing for termination if lessee were dissolved will not be enforced to terminate tenancy and preclude lessee from exercising its right to purchase since any default, was deminimis since entities involved in complained of transfers of lease were identical, so the withholding of consent by lessor to assignment of lease/sublet would have been unreasonable, thus, dissolved corporation reinstated nunc pro tunc and the lessor received full amount of rent during lease term. The Appellate Term concurred with the Supreme Court since the non-assignment clause is a conditional limitation and "a conditional limitation is subject to strict scrutiny so as to avoid a forfeiture of the lease and will not be enforced for minor breaches or where no substantial injury occurs (see Doney Corp. v. Project 61 Assocs. NYLJ, Mar. 5,1997 (Sup Ct, N.Y. County).

So as a general rule of law in order for a forfeiture clause to be enforced: (1) the right to declare a forfeiture must be distinctly reserved, (2) the proof of the happening of the event in which the right is to be exercised must be clear, (3) the party entitled to do so must exercise its rights promptly, and (4) the result of enforcing the forfeiture must not be unconscionable (2 Dolan, Rasch's Landlord and Tenant Summary Proceedings §§ 23:39 [4th ed] )". The dissent by Justice Golia is also persuasive but rejected by the majority.

See also Gettinger Associates, LLC. v. Abraham Kamer & Co., LLC., 103 A.D.3d 535, 960 N.Y.S.2d 37, 1013 N.Y. Slip Op. 01168, where sublessors' unreasonable delay in seeking to enforce sublessees defaults related to this expenditure in excess of $50,000.00 for repairs to building's facade without providing plans or performance bonds resulted in a specific waiver of its right to enforce the defaults, with two exceptions. Although the defaults were a breach of a "substantial obligation of the tenancy", they were not material breaches that would justify termination of the sublease. "Forfeiture of the sublease based on improper assignment is unwarranted under the circumstances, especially because plaintiffs have asserted their willingness and ability to cure the default (see Zona, Inc. v. Soho Centrale, LLC., 270 A.D.2d 12, 704 N.Y.S.2d 38, 2000 N.Y. Slip Op. 02076 (1st Dept., 2000)". Zona has been cited for the proposition that "consent may be obtained after the assignment and even in the absence of a lease provision authorizing a post-assignment cure (see Empire State Bldg. Assoc. v. Trump Empire State Partners, 245 A.D.2d 225, 229, 667 N.Y.S.2d 31 (1st Dept., 1997)".

In Artcorp Inc. v. Citirich Realty, 124 A.D.2d 545, 2 N.Y.S.2d 109, 2015 N.Y. Slip Op. 00650, it was found that the commercial tenant clearly asserted its willingness to cure allegedly improper assignment of shares, and had the ability to either transfer its shares back to the deceased owner's estate, or seek the consent from the landlord, and thus, issuance of a Yellowstone staying termination of the lease was warranted. The court distinquished Zona on the grounds that the tenant there failed to assert that it had the ability to cure its default.

See also Sears Holdings Corp., v. Lake Plaza Shopping Center, LLC., 143 A.D.3d 969, 40 N.Y.S.2d 449, 2016 N.Y. Slip. Op. 07015, finding that defendant was not entitled to judgment declaring that prior insurance policies held by plaintiff constituted breach of sublease between parties, which contained provision requiring plaintiff to maintain liability insurance, where plaintiff's procurement of new insurance policies that complied with terms of sublease cured any alleged breach of lease.

This court finds the case of Headless Horseman Entities Inc., v. AP Petroleum Corp., 48 Misc.3d 670, 9 N.Y.S.3d. 536, 48 Misc.3d 670, 9 N.Y.S.3d 536, 2015 N.Y.Slip Op. 25160, significant specifically it sound reasoning and rationale, that found that the tenant's alleged failure to conduct proper inspection of underground tanks as require by state and county law, did not warrant termination of lease violation of lease provision, as stated above, absent a separate independent finding that the tenant violated the la. (emphasis added.) His first query was-can the court in a summary proceeding make a finding that the respondent has violated a law or State and County regulation, in the absence of such a finding by an agency or court in which the violation has been adjudicated ? He did find in another case, namely, Mobil Oil Corp., v. Burdo, 69 Misc.2d 153, 329 N.Y.S.2d 742 (Dist. Ct., Nassau Cty., 1972) that the lease was terminated based on a violation of law, without a separate finding of a violation. He said that "the result of the decision of Mobil Oil Corp., v. Burdo, in finding by the court that the respondent is guilty of a misdemeanor (mixing two grades of gaseline), not in a criminal proceeding or an administrative proceeding by the regulatory authority, but within the context of a summary proceeding seeking a termination of a lease "draconian and contrary to law".

In relying on Lake Anne Realty v. Sibley, supra., Fly Hi Music Corp., supra., Ogden v. Hamer, supra, Riesenfeld, Inc. v. R.W. Realty Co., supra, Janks v. Central City Roofing, Inc., et al., supra., and Harar Realty Corp. Michlin & Hill, 86 A.D.2d 182, 449 N.Y.S.2d 213 (1st Dept., 1982), infra, he concludes that "a termination of lease based on a violation of the covenant that the tenant will abide by all federal, state and municipal law, should be based on an actual finding by an appropriate jurisdictional body, of an actual violation of law. The statutory scheme promulgated the Environmental Conservation Law allow enforcement through administrative and/or criminal violation of regulations promulgated pursuant to that law will then be used not to impose civil or criminal penalties, but to terminate a lease. A separate independent finding of an actual violation of law could also serve as the basis to establish "injury to the landlord" which the law requires prior to the termination or forfeiture of a lease". For said reasons, judgment was entered for the Respondent.

Lastly, see also Harar Realty Corp. Michlin & Hill, 86 A.D.2d 182, 449 N.Y.S.2d 213 (1st Dept., 1982), involving the installation of a spiral staircase in the demised premises by tenant. Said installation was the basis of a holdover proceeding in which the landlord claimed that structural changes were made in the property without seeking the prior approval or filing any plans with DOB. After substantial analysis, the court reversed the trial court that found for the landlord. The Court reasoned that "the breach of a covenant not to make alterations is a substantial violation of the lease ( Rumiche Corp. v. Eisenreigh, 40 N.Y.2d 174, 178, 386 N.Y.S.2d 208, 352 N.E.2d 125 (rent control tenant as opposed to commercial tenant); Andrews v. Day Button Co., 132 N.Y. 348, 353, 30 N.E. 831 ; Agate v. Lowenbein, 139 N.Y.S. 929 ); and such lease that provides that such covenant may be withheld, even arbitrarily, where the contemplated alternation are structural ( Wall Nut Prods. v. Radar Cent. Corp., 20 A.D.2d 125, 244 N.Y.S.2d 827 ), however, a tenant "is at liberty to erect structures for the purpose of carrying on his legitimate business upon the demises premises and remove them within the term, unless the effect will be to commit waste or to do serious injury to the realty (Andrews v. Day Button Co., supra). So the central issue is whether the installation of the staircase materially changes the nature and character of the demised premises so as to constitute waste. The subsidiary question was whether the stairway necessary for the purposes of Michlin's business-in this case, the spiral staircase was needed as a means to facilitate access between the 3rd and 4th floors in the demised premises. Judgment for the tenant.

As equally important, the Court stated that the type of alteration which would justify eviction is: "Such a change as to affect a vital and substantial portion of the premises, as would change it characteristic appearance; the fundamental purpose of the erection; or the uses contemplated, or a change of such a nature as would affect the very realty itself, extraordinary in scope and affect, or unusual in expenditure" (citing Pross v. Excelsior Cleaning & Dyeing Co., 11 Misc. 195, 201); 1 Dolan, Rasch's Landlord and Tenant Summary Proceedings §§ 455 [1st ed] ).

Thus, the proceeding was commenced two years after the lease was executed and after completion of all major renovations. To allow the petitioner to regain possession of premises which have been substantially improved and the value of which has obviously been enhanced at the cost borne to the respondent, "would work a great injustice and result in windfall to petitioner. The staircase did not show any permanent or lasting injury to the building or its reversionary interest. In addition, it affected an insubstantial portion of the demised premises and did not change its appearance or purpose or contemplated use. Therefore, the installation of the stairway constitutes a nonstructural alternation which was necessary to carry on the respondent's business, which "therefore, did not require consent". Id at 189.

In a strikingly similar case to the case at hand, in Louis & Annne Abrons Foundation, Inc. v. 29 East 64th Street Corp., 78 A.D.2d 814, 433 N.Y.S.2d 132, the court determined that "the installations of the sign, gates, canopies and other attachments without approval of the cooperative were clearly in contravention of House rules 10 and 13. ( Madision 52nd Street Corp. v. Ogust, 49 Misc.2d 663, 667, 268 N.Y.S.2d 126, aff'd 52 Misc. 935, 277 N.Y.S.2d 42 ) were inconsequential breaches that do not warrant the forfeiture of the respective leases and subleases. Also similar to the case at bar is the matter of Rubinstein Bros. v. Ole of 34th Str., Inc. 101 Mic.2d 219, 421 1 N.Y.S.2d 534 (N.Y. City Civ.Ct., 1979) that found that "[w]here a wide variety of merchandise is sold on the leased premise, the fact that one or a few of the items violate a restrictive covenant in the lease will not constitute such a material breach as to justify eviction and forfeiture.

On the opposite end of the spectrum, the Court found that commercial lease that assigned 90% of its shares, contrary to the lease and without the consent of the landlord, was noncurable and the Yellowstone injunction granted in the tenant's favor was improper. The Yellowstone should not have been granted since the tenant failed to assert that it has the ability to cure., i.e., "by undoing the assignment of the lease". Zona, Inc. v. Soho Centrale, LLC., 270 A.D.2d 12, 704 N.Y.S.2d 38, 2000 N.Y. Slip Op. 02076 (1st Dept., 2000). Also, in Heartland Assocs. v. Adam Oser, 2003 N.Y. Slip Op. 51419(U), affirming the trial court's order granting the petitioner summary judgment since "upon the credible evidence before the trial court the landlord did not waive the default by any course of action"; Keesler v. Small, 140 AD3d 1021, 35 N.Y.S.2d 356, 2016 N.Y. Slip Op. 04912, finding summary judgment precluded for hospital on the theory that it was vicariously liable for alleged negligence of individual doctors and directly liable for negligence.

EQUITABLE DOCTRINE OF WAIVER AS A MATTER OF FACT AND LAW

Since waiver is certainly employed by the courts as useful tool of equity to prevent inequity such as forfeiture and it is also generally applicable to contract interpretation.

The lease in this case, like nearly every commercial lease, contains a no-waiver clause; in this case, paragraph 24 entitled "No Waiver" ". The courts have consistently enforced such no-waiver clause ( Meyers Parking System, Inc. v. 475 Park Ave. So. Co., 186 A.D.2d 92, 92 [1992] ); 458 Broadway Leasing, LLC. v. Bundlee Fabrics Inc., 15 Misc.3d 135[A] [2007], 2007 N.Y. Slip Op 50741[U] ; Palace Renaissance, Inc. v. Sareb Rest. Corp., 10 Misc.3d 137 [A] [2005], 2005 N.Y. Slip Op 52162[U] ; cf. Transel, Inc. v. Fashion Inst. of Tech., 26 Misc.3d 130[A] [2010], 2010 N.Y. Slip Op 50033[U] ). The failure of the landlord to enforce the lease or to comply with any provision of the lease, does not preclude the landlord from the enforcement of the lease. There are dozens of cases that involve the acceptance of rent, not the subject of this proceeding, relevant only to the extent that recently the Appellate Division found in Sunoce Properties, Inc. v. Bally Total Fitness Center of Greater New York Inc. 48 N.Y.S.2d 476 (AD 2nd Dept., 2017) that "[w]hile landlord's waiver of rights under a lease may be inferred from the acceptance of rent in some circumstances, it may not be inferred, and certainly not as a matter of law to frustrate the reasonable expectations of the parties embodied in a lease when they expressly agreed otherwise". Summary judgment was denied because the "landlord waived its rights to assert breach because it was alerted to ongoing water damage over 40 years and nonetheless accepted rent and extended the lease seven times with full knowledge of alleged breach notwithstanding the fact that the lease contained a nonwaiver clause precluding waiver.

The true exception to this rule is when the landlord's knowledge, acquiescence or "active involvement" in the lease violation that waiver can be found and evidence can be produced sufficient to "indic[ate] that the reasonable expectations of the parties under the original were supplanted by subsequent actions ( Simon & Son Upholstery, Inc. v. 601 West Assocs. LLC., 268 A.D.2d 359, 702 N.Y.S.2d 256 ). Such waiver may be evinced by words or conduct including partial performance ( Rose v. Spa Realty Assocs. 42 N.Y.2d 338, 343–344, 397 N.Y.S.2d 922, 366 N.E.2d 1279 ). (cf. Excel Graphics Tech. v. CFG/AGSCB75 Ninth Avenue, LLC., 1 A.D.3d 65, 767 N.Y.S.2d 99, 2003 N.Y. Slip Op. 18419 finding that there was no "active involvement" on part of the defendant indicating an agreement to modify the lease; Diane Marshall v. Ahmed, 5 Misc.3d 136(A), 799 N.Y.S.2d 161, 2004 N.Y. Slip Op. 51549(U) affirming a determination that "inasmuch as the parties to this commercial lease agreed that even a single violation of such lease provision would be material breach of lease, tenant's claim that their breaches were not material is incorrect (see 1029 Sixth LLC. v. Riniv Corp., 9 A.D.3d 142 [2004] ) and further" landlord did not waive the material violations of the lease (see Jefpaul Garage Corp. v. Presbyterian Hosp. in City of NY, 61 N.Y.2d 442 [1984] ; Horowits v. 1025 Fifth Avenue, Inc., 7 A.D.3d 46 [2004] ; Guardia v. 205 W. St. Corp., 205 A.D.2d 306 [1994]. Thus, landlord was entitled to final judgment.

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

The burden of proof in this case is on the Petitioner, and the Court finds that the Petitioner has sustained its prima facie case to the extent that the Petitioner has admitted proof in admissible form to substantiate compliance with RPAPL § 741 and proved the following elements in the petition. The Petitioner established proof of ownership of the subject premises by a certified copy of the deed of ownership dated July 23,1995 in which 32 Court Assoc. transferred all rights, title and interest to Eighteen Associates, LLC., (Petitioner's Exhibit "1"); there is a landlord and tenant relationship between the parties that was created by a written lease agreement dated May 24, 2011 and rider thereto, that commenced on May 24, 2011 and terminates on May 31, 2021 (Petitioner's Exhibit "2"); and the premises sought to be recovered is in conformity with the lease and rider thereto as "32 Court Street, Retail Space known as Store 101 and Basement Space known as C101, Brooklyn, New York", the fact of which are not in dispute in this proceeding and has been adequately described in the petition. Additionally, the building has a valid certificate of occupancy for the use of demised premises commercial space (Petitioner's Exhibit "3").

In addition to the above, the parties agreed to the following undisputed evidence:

1. a drawing, dated November 28, 2011, amendment for an alteration type 2 interior renovation, plumbing work, with no increase in the bulk of FAR, no change to use or occupancy (Petitioner's Exhibit "4");

2. a drawing dated April 22, 2011, for the interior renovation, plumbing work, no increase in bulk of far, no change in use or occupancy. The latter exhibit describes the sprinkler system, the sprinkler risers, the proposed sprinklers as well as a drawing of the pizzeria; (Petitioner's Exhibit "5");

3. A certified copy of the application submitted by the Respondent for the alteration type 2 for the subject premises which states that the application was approved on November 16, 2011 and signed off on October 16, 2013 (Petitioner's Exhibit "6");

4. a letter from the Borough Commissioner, entitled ‘Letter of Completion’ dated November 6, 2014. The letter explicitly states that the above application number 320347530, under block 255, lot 44, was signed off on October 16, 2013 and "because this job was filed as Directive 14 of 1975, the owner retained a registered professional engineer or a registered architect who certified that he or she inspected the work approved on this application and that it complies with the applicable laws, rules and regulations of the Department of Buildings. Based on the nature of the work filed on this application, a new certificate of occupancy is not required." (Petitioner's Exhibit "7");

5. A certified copy of the Department of Buildings' application under job number 32039313 for the estimated sprinkler system that was approved on March 1, 2013. The application states that it is an alteration type 2, new sprinkler application in conjunction with job number 320347530 (Petitioner's Exhibit "8,");

6. "Proposal" from New Skyline Exhaust and Ventilation, Inc. which provided for the installation of the following: 1.) two 18–gauge filter trap in pizza oven hood; 2) supplied and installed one 16x20 2–inch commercial carbon air filter for odor and chemical elimination which was paid in full on August 10, 2013 for a total of $750.00 (Petitioner's Exhibit "9").

Despite the above, the material issues of fact as described in the Notice to Cure and Notice of Termination were equivocal and are the primary issues of fact as discussed below. It takes little observation of the demeanor of both parties from pretrial conference to trial to discern that the dispute here arises from the inception of this tenancy. It has elevated into a long, contentious battle that has more to do with the different "standards and values" of the manager and owner and the tenant about the operation of commercial property. The business acumen of the manager and owner far exceeds that of this simple and unsophisticated tenant.

On the one hand, the Petitioner contends that the Respondent intentionally, willfully, and with malice refuse to comply with the lease agreement for profit at the expense of the safety of the general public. The Respondent argues that every possible personal and professional action taken by him and his agents have been to comply with the lease except where compliance was beyond the dominion and control of the Respondent. Where the Respondent was in violation of the lease, the Respondent claims that he cured those objections timely and properly prior to the termination of the tenancy by service of the pleadings.

The Court will examine the pleadings first to further narrow the issues of fact and law, and then the testimony and documents submitted by both parties in support of their respective claims and defenses.

In this case, the lease is the standard form store lease, printed by the Real Estate Board of New York, Inc. and contains the usual "requirements of law" provision, namely, paragraph 6, in which the Respondent covenants, as follows: "Tenant, at Tenant's sole coast and expense, shall promptly comply with all present and future law, order and regulation of all state, federal, municipal and local government, department, commissions, and boards and any direction of any public officer pursuant to law and all orders, rules and regulations of N.Y. Board of Fire Underwriters or the Insurance Services Office, or any similar body which shall impose any violations, order or duty upon Owner or Tenant with respect to the demised premises."

More significant, the lease has a rider, prepared by the Petitioner's attorney, and by its terms is definitely a ‘Landlord rider’, includes base rent escalations (¶ 41 A–J), real estate taxes (¶ 42a-i), hazard insurance, both fire, liability and property (¶ 46A–C), landlord work (¶ 44(b)), tenant alternations and conditions (own contractor) and any alteration that affects any "building system" (undefined in the lease requires Tenant to use Landlord's contractors) (¶ 56 A–B), sign restrictions (¶ 60), assignment restrictions (¶ 71a-k), indemnification (¶ 61), repairs (¶ 67), late payment charge (¶ 69), Operating covenants (¶ 70 a-d), attorneys fee (¶ 73a-g), "Goodguy Clause" (¶ 79 a-b), holdover rent (¶ 80), waiver of counterclaims (¶ 81), security deposit (¶ 84), exhaust and ventilation (¶ 87–b), and others that are not pertinent to this case. Also, annexed are exhibits which are drawings of the demised premises, Suite 101 and Suite C1010 (Exhibit "A"), Exhibit "B" (Landlord's work), Exhibit "C" (Tenant's work to be provided), Exhibit "D" (store sign to be provided), and Exhibit "E" (HVAC and ventilation system to be provided).

Central to this controversy is the operating covenant, namely, 70(d), which states that "[t]enant shall conduct its business at all times in a high class and reputable manner maintaining at all time a staff of employ and stock of merchandise commensurate with tenant's other similar retain operations". This Court had the opportunity to inspect the property and it is modern, elegant, upscale and impeccably managed and operated by the Petitioner. The Respondent, on the other hand has not maintained this high standard, in part, from its own actions and in part, from latent conditions in the property.

SIGNS INSIDE AND OUTSIDE THE PREMISES

In addition to the above, the Petitioner relies on the following provisions of the lease and rider, namely, paragraph 35 which requires the tenant to "observe faithfully and comply strictly with the rules and regulations as owner or owner's agents may from time to time adopt"; paragraph 60 which provides, in pertinent part, that "subject to the prior written approval of Landlord which approval shall not be unreasonably withheld or delay, tenant may place a sign or sign which may advertise tenant's name provided such sign or signs are maintained in a condition or proper cleanliness, orderliness and state of attractive appearance and are keeping with the standards of the building In no event shall neon signs be permitted on the exterior of the Demised Premises. In no instance shall Tenant be allowed to affix papers signs to the windows or window glazing of the premises without the Landlord's written permission. Further, the Petitioner relies on Rules and Regulations of the lease, namely, 5 states the following: "no sign, advertisement, notice or other lettering shall be exhibited, inscribed, painted or fixed by Tenant on any part of the outside of the demised premise or the building, or on the inside of the demised premises if same is visible from the outside of the demises premise without the prior written consent of Owner. In the event of violation, Owner may remove same without any liability and may charge the Tenant expenses incurred by such removal" Lastly, rule 6 says "Tenant shall not mark, paint, drill into, or in any way deface any part of the demised premises or the building"

There was no testimony that supports any finding that the Respondent affixed his business name to the premises without the consent of the Petitioner. However, there is evidence that handwritten signs and merchant signs have been and are on display in the front window of the demises premises.

Petitioner's Exhibit "13–A", "15–A" and "15–B", each depict three types of signs. Exhibit "13A" is a menu board; Exhibit "15–A", a large white handwritten board similar to project boards in grade school inside the front window of the demised premises and Exhibit "15–B", is a handwritten advertisement on a smaller white board and the commercial typed written advertisement from "Honest Tea". The Respondent acknowledged that the signs were installed by him but denies that the signs are "affixed" to the property.

The photographs show that the signs in the front window are not affixed to the window in any manner. As equally important, the Respondent credibly testified that when Mona Gora objected to the handwritten signs, he removed both signs and there was no testimony in rebuttal to refute this testimony. The Respondent's testimony proved that he had complied with this covenant and the handwritten signs should not be grounds to terminate the Respondent's tenancy.

The other signs presents a different issue for the Court. After the removal of the handwritten signs, the Respondent asserted that the Petitioner never objected to the commercial typed written advertisements and no testimony was presented in rebuttal, again, to refute his claim. The Court finds, like the tenant in Harar Realty Corp. Michlin & Hill, 86 A.D.2d 182, 449 N.Y.S.2d 213 (1st Dept., 1982), that notwithstanding a breach of a covenant in the lease, a commercial tenant like the Respondent should be ‘at liberty to erect ‘structures' for the purpose of carrying on his legitimate business and remove them within the term, unless the effect will be to commit waste or to do serious injury to the realty. (Andrews v. Day Button Co., supra).

The Respondent occupies the storefront ground level of 32 Court Street, Downtown, Brooklyn, and like all of the other commercial stores on this premium "gold coast" of professional office buildings, contain valuable commercial storefronts. Each rely on "foot traffic" in conjunction with "locals" as their two main sources of revenue. Advertisement signs will only facilitate the sales and distribution of the food products and beverages sold at the demised premises.

It is very clear from the photograph evidence that the handwritten signs were unprofessional. Based on the covenant specified in ¶ 70(d), which states that "[t]enant shall conduct its business at all times in a "high class and reputable manner', it is the Court's own found belief that the type of signs exhibited were the kinds that did not comport with the general tenor of the building.

The other photographs depict marketing advertisement signs from retail distributors, in this case, "Honest Tea" were not objectionable. The Respondent's testimony was credible that these kinds of signs were in his windows from the inception of his tenancy; and were on the window sash or ledge and were not attached in any manner. Also, the other commercial tenants in the building clearly have their advertisement signs in their windows. (See Respondent's "E") The only exception was the signs inside of the Marquee; the testimony from both parties was not clear when this postage became a problem but it did. The photographs, Petitioner' Exhibit "13–A", "15A" and "15–B", do not depict tape affixation or other visible affixation to support any finding of affixation in the Marquee.

Why did the Petitioner intentionally target the Respondent for the installation of the signs and not the other tenants? It is clear and discernible from the evidence that the real disparity in treatment between the respective tenants, once again, is not the signs per se, but the failure of the Respondent to keep the Pizzeria clean and neat as opposed to sloppy and messy!! Clearly, a curable offense.!!

Further, the Respondent credibly testified that the signs that were objected to by the Owner were removed prior to the court proceeding and the other signs remained there through the date of trial since there was no objection to those signs by his landlord. MONA GORA testified that she is in the building from 7 a.m. to 9 p.m. and if her testimony is true, she walked pass this pizzeria everyday going to her job as the on-site owner and manager in that location. The Court is confident that if the signs were so objectionable, she would have notified the Respondent immediately of her objections in writing as was her practice and the practice of her agent, namely, by email and in writing. See Court Exhibit 1–Notice to Admit, specifically, Petitioner's Exhibit "C"-"Z" and Exhibits "AA"-"ZZ"; these were writings by the Petitioner's agent or attorney to the Respondent within months of his lease execution in May 2011. The Court specifically notes that the signs that were originally objected to by the Petitioner prior to this litigation (Letter dated June 9, 2014, from Rachel Tuckerman Esq., annexed as Exhibit "H") are not the same signs depicted in the above exhibits. Had there been any objection to these signs, the on-site manager would have vigilantly enforced her lease covenants as in the past, unequivocally stating her objections; but, no objection was made, according, to the Respondent and the evidence admitted at trial supports this fact. Once again, there was no rebuttal evidence admitted to the contrary.

Once objected to by the Petitioner, the signs that were not "high class" and "reputable" were removed by the Respondent but the others remained. These kind of marketing advertisements are critical to lure "foot traffic". MONA GORA's daily presence at the property with no objection to the merchant signs is tantamount to her acquiescence to the merchant signs. Under the facts, the Court finds that the Petitioner's conduct that acquiescence the merchant signs constituted a waiver of the nonwaiver clause in their lease. ( Simon & Son Upholstery, Inc. v. 601 West Assocs. LLC., 268 A.D.2d 359, 702 N.Y.S.2d 256 ); ( Rose v. Spa Realty Assocs. 42 N.Y.2d 338, 343–344, 397 N.Y.S.2d 922, 366 N.E.2d 1279 ).

As the Trial Court determined in Louis & Annne Abrons Foundation, Inc. v. 29 East 64th Street Corp., 78 A.D.2d 814, 433 N.Y.S.2d 132, the installations of the sign, gates, canopies and other attachments without prior approval in contravention of specific house rules are inconsequential breaches of the lease that did not warrant the forfeiture of the subject lease and rider. In concurrence with that decision and supported by the lack of evidence, real or testimonial in this case, notwithstanding the lease restriction, this Court finds that the merchant marketing advertisement displayed inside of the Respondent's place of business for any of the products sold and distributed to the general public is not a material breach of a lease agreement that should warrant forfeiture of the lease.

Of all of the cases that have been reviewed by this Court, no lease forfeiture has been granted for this type of infraction since as a general rule retail businesses, particularly, food industry distribution businesses, rely heavily on marketing advertisements as part of the tools of their trade. Further, although the parties executed a lease that changed that custom and industry standard, the Petitioner has not demonstrated any harm or prejudice. More compelling according to case law, and conspicuously absent from the Petitioner's testimony was any evidence of the harm that the advertisement may have caused the building or to the Petitioner's profit. There was no evidence of waste; or any condition that was created by the signs that has adversely impacted the character and nature of the building, impediments in rentals or the like. The signage is a minor infraction of the lease and insufficient evidence was produced to prove any kind of damages from this infraction. Therefore, this ground is insufficient as a matter of fact and law to terminate the tenancy of the Respondent.

OPEN PERMITS AT THE DOB

The Petitioner also relies on paragraph 3, entitled alteration, which provided that the "tenant shall make no changes in or to the demised premises of any nature without Owner's prior written consent. Subject to the Owner's consent, tenant, at tenant's expense, may make alternation, additions, or improvements which are nonstructural and which do not affect utility services or plumbing and electrical lines, in or to the interior of the demised premise by using contractor or mechanics first approved in each instance by Owner." and rider number 56 supplementing article 3 of the lease, further restricting the Tenant to nonstructural alternation to using their own contractors whereas any structural alteration require the Tenant to use only Owner's contractors. Additionally, the procedure is described for submission of proposed plans and steps for Owner's approval.

Although the Petitioner may have relied on both provisions and the general case law, the more applicable provision here is the "requirements of law" provision, namely, paragraph 6, in which the Respondent covenants, as follows: "Tenant, at Tenant's sole coast and expense, shall promptly comply with all present and future law, order and regulation of all state, federal, municipal and local government, department, commissions, and boards and any direction of any public officer pursuant to law and all orders, rules and regulations of N.Y. Board of Fire Underwriters or the Insurance Services Office, or any similar body which shall impose any violations, order or duty upon Owner or Tenant with respect to the demised premises."

As a grounds for termination, the Petitioner states she is aggrieved by the Respondent having failed to close two open building permits under job number 320347530 ("Alteration Type 2:Interior renovation to existing store (use group 6), plumbing work, increase in bulk of far. No change in use or occupancy" (Petitioner Exhibit "6") and Job No: 320393132 ("Alteration Type II: new sprinkler in conjunction with job 320347530") (Petitioner Exhibit "8").

It is irrefutable that the Respondent was required to submit permits, plans and copies of all paper work for Petitioner's approval for the initial alternation to the demised premises since the lease provided that the Petitioner would deliver the premises in vacant and free of all trade fixtures and broom clean" and otherwise in an "as is" condition as required by Exhibit "B" entitled "Landlord's Work". The store would be raw space subject to the renovation by the Respondent for his use and purpose. The Respondent submitted plans for the storefront and the basement (Petitioner's Exhibits "4" and "5"). Notwithstanding compliance with the initial buildout, tt is also irrefutable that the Respondent did not comply with the lease. Although he executed the lease in May 2011, his application for the Alteration Type II was not approved by DOB until November 16, 2011 and the final letter of completion was not issued until October 16, 2013, beyond the cure date on August 16, 2013 and definitely, beyond the termination date of September 2, 2013. To support this fact the Petitioner admitted into evidence Petitioner Exhibit "7", a certified copy of the letter of completion from the Borough Commission, Rick D. Chandler, P.E. stating that date as the date of completion and compliance with laws and regulations.

Additionally, the Petitioner admitted Petitioner's Exhibit "3", a certified copy of the certificate of occupancy for the building which provides the following information: cellar-ordinary use; first floor-store (use group 6); floors –2nd, 3rd and 4th floor-offices (use group); 5th floor-offices and school (use group 6); 6th21st floors—offices (use group 6).

The record also supports a finding that the Petitioner from as early as August 15, 2011, the Petitioner agent, Brad Leader, acknowledged receipt of the plans in email correspondence (Petitioner notice to admit Exhibit "VV") but they were not the final plans and there was no signoff by the DOB.

Although the history is long, it is important for our purposes here. The facts speak for themselves: as of November 8, 2011, the Respondent complains to Mrs. Elizabeth Gelp from the Office of the Mayor I New Business Acceleration Team, of the delays, confusion and conflicting information required to proceed with the sign off and withdrawal of the sprinkler system application since it was not required by the lease or the law. (Exhibit "UU"). See also provision 72).

As of December of 2011, the Respondent is in default of the lease and requested a rent concession from the owner. Her representative denied any further concession, did not acknowledge any delays created by the LPC and insisted that the lease required the installation of a sprinkler system. (See email date December 5, 2011 annexed to Notice to Admit in Exhibit "TT").

By February 21, 2012, the Respondent owed $21,116.67 and the Petitioner demanded correction of some of the work that had been done and the operation of the business (Exhibit "QQ").

In correspondence dated March 12, 2012, the Respondent then notified the agent of the petitioner that the Petitioner's insistence on the installation of a sprinkler system created more delays. It was not until this date or earlier, that the Respondent was informed that the building was "going to Landmark". He states that "with all that, even though I don't agree that I should be responsible, I will pay her back rent. I have a building I'm selling and another that I'm trying to refinance or as soon as I pay down some of the other bills I will take care of it. In the mean time I have been paying present rent". (Notice to admit at Exhibit "OO").

By March 26, 2012, according to Brad Leader, agent for the owner, $16,616.67 is due in rent through March 31, 2012 and the Petitioner, among other items, demanded "copies of plans and required sign-offs for all aspects of your buildout." (Notice to Admit at Exhibit "NN"). Respondent replies.

In April 10, 2012, the same agent requested nearly the identical information (Exhibit "MM"). All prior correspondence were by email until the April 26, 2012 demand letter from Mr. Leader which for the first time there are alleged pizza smells in the building and further demand for the plans and signoffs. (Exhibit "LL")

In May 8, 2012, the Respondent informs the agent of his refinance, the prospects of the ceiling in the demised premises may not have adequate space for ventilation and the signoffs were being worked on by his architect and "[I] know this taking longer than it should, but I'm trying to go as fast as I can". (Email from Respondent to Mr. Leader in response to the aforesaid written demand from the Petitioner annexed as Exhibit "KK").

Further in Exhibit II, by email the Respondent updates the Petitioner that the architect is still working on the plans and he is in the process of working of the exhaust to end the pizza smell.

On May 29, 2012 (Exhibit "HH"), June 25, 2012, (Exhibit FF), after email correspondence from Mr. Leader, the Respondent timely responds that he will have rent, the plans were being work on and the exhaust system was being resolved.

On July 1, 2012, the Respondent again assures the Petitioner that he will have rent arrears, new exhaust would be installed and the plans were completed except plumbing changes and the plumbing sign off could be forthcoming. (Exhibit "EE").

On July 17, 2012, the Petitioner then recommends that the HVAC company that they hired to investigate the pizza smell and annexes a proposal for $20,000.00 for the work (Exhibit "DD").

On July 25, 2012, Mr. Leader once again demanded correction in the exhaust system, removal of property beyond the leased space and copies of plans and sign offs. Exhibit "BB").

Finally on July 27, 2012, the Respondent provides copies of the plans and requested the Mr. Leader advise him if they were okay. (Exhibit "AA").

As of October 2, 2012, Mr. Leader states that "it has been ten months since you opened. What is the status of the signed off plans ." (Exhibit "Z").

On October 9, 2012, additional request of plans and the Respondent responds that he will get him a copy.

By December 2012, the Respondent is as close as he ever was to a sign off and according to Mr. Leader, he was missing one item to get the full signoff.

On December 19, 2012, Mr. Leader still request signed plans (Exhibit "X" and "Y"). The Respondent responds stating that he would pay rent by the following date and DOB is requesting an updated asbestos report and would not use the one they had. "I'm on it." (Exhibit "W").

By January 3, 2013 and January 4, 2013, Mr. Leader again demand the status of the sign offs. He states that this has been an issue for over a year and needed to be revolved (Exhibits "U" and "V"). During this time, it appears that the parties were also negotiating additional space on a month to month basis. During this month, on January 14, 2013 (Exhibit ‘T’) January 15, 2013, (Exhibits "S"), January 31, 2013 ((Exhibit "R") February 15, 2013 (Exhibit "Q"), February 22, 2013 (Exhibit "P"), April 12, 2013 (Exhibit "O"); May 7, 2013 (Exhibit "N") were all emails from Brad Leader to the Respondent seeking to obtain the plans and each has a response by the Respondent.

Then around June 7, 2013, the Petitioner serves the first lease default letter from counsel which stated that the Respondent failed to eliminate the pizza odors and to provide final signed off plans on the alteration permit (Exhibit "M").

After this letter was mailed to the Respondent by first class mail and email, the next notice was from Mr. Leader dated June 11, 2013, specifying request for the final plans, offensive order, no paper signs in the windows, exterminator and trash pick-up regulations.

On June 13, 2013, the Respondent responds and states that "I will remove the signs from the window, and will make sure sidewalk is hosed down if dirty. Concerning the pizza fumes, I built the exhaust according to your specifications, however, if you are not happy with it please send your HVAC Mechanic to see if he has any other solutions". "[B]uilding department plans are being worked on. Due to plans being approved in Mayor's Task force, it is becoming a problem to tracking down blueprints, although approvals has been issue." (Exhibit "L").

By July 3, 2013, Mr. Leader request the plan again and suggest that he use "Smog Hog" system and that "I will have a rep from the company come by to do an inspection to provide an estimate (Exhibit "K").

On July 11, 2013, Mr. Leader writes again about the plans and he recommends "a new Smog Hog" system be installed to eliminate the odors coming from his premises (Exhibit "J").

In an undated letter, the Respondent sought to meet with MONA GORA to no avail. He provides copies of plans that were submitted in April 2013. As to the pizza sells he was informed that it is not the exhaust systems but "pizza odors is being emitted through openings in the walls, more specifically, the elevator shaft which carries the smell to other floors. I have already closed some of the openings and will continue to do so until all openings are sealed." He then informs her of his willingness to take any suggestions to improve his space and make it more upscale. He then informs her of the floods he had in the basement damaging inventory, his unwillingness to complain to her and his status as a good tenant with the other tenants in the property (Exhibit "I").

Lastly, by letter dated June 9, 2014, Petitioner's counsel served by hand delivery a letter of default with photographs (Exhibit "H"); by letter dated August 7, 2014, Petitioner's counsel, by hand delivery, served another notice of default with photographic evidence of bamboo blinds that was deemed below the building "attractive appearance" and claims that the premises was not clean, orderly and not attractive (Exhibit "G").

This Court has painstakingly reviewed the correspondence between the parties prior to the commencement of this proceeding for a purpose. As stated above, commercial lease maybe loss if: (1) the right to declare a forfeiture must be distinctly reserved, (2) the proof of the happening of the event in which the right is to be exercised must be clear, (3) the party entitled to do so must exercise its rights promptly, and (4) the result of enforcing the forfeiture must not be unconscionable (2 Dolan, Rasch's Landlord and Tenant Summary Proceedings §§ 23:39 [4th ed] )". The facts established by the multiple correspondence between the parties and the lease show that the Respondent substantially complied with the lease by obtaining the approval of his plans and there is no explicit language in the lease that makes this provision of the lease is a conditional limitation with a date certain for termination if there is noncompliance.

It is also undisputed that the Petitioner and her agents relentlessly pursued the Respondent, both verbally, in written notices and correspondence for full compliance with lease provisions, namely, Provisions 3, 56 and requirements of law" provision, specifically, paragraph 6 of the printed lease. As equally important, this evidence demonstrates that the Respondent responded timely to each notice and correspondence, in good faith, and used every means available to comply with the lease. (Exhibits "J-"Z" and Exhibits "AA"-"ZZ".) This written exchange between the parties completely repudiates the claims made by Petitioner's attorney that the Respondent has demonstrated a "callous" disregard for both the lease and the law in their pursuit of profit "by intentionally and willfully failing to comply with the terms of the lease agreement". The Respondent could not be more compliant than he was under the facts presented here. He sold property, refinanced other property and notwithstanding, the failure of the Petitioner to disclosed that the building was "landmarked", he continued to use his best efforts to "make her happy". This fact alone prevented the Respondent from truly making alterations at the property as he originally contemplated. He could not even remove the Marquee that was apparently a problem for both he and the owner. Although the Court finds that the Respondent did not use to due diligence to determine his restrictions on the property, he did not abandoned the property as other may have with the landmark status, he continued to work diligently to comply with his lease. Moreover, the emails and other correspondence between the parties does not support any finding of any significant delay or dilatory tactics by the Respondent. He responded to each and every email with a few days and at the most two weeks. His conduct certainly does not support negligence or intentional conduct to cause any delay in obtaining the final sign offs for the work or to resolve any issues raised by owner or her agents.

The Respondent's plans were approved on November 16, 2011 but not sign off until October 13, 2013. The Respondent should not be liable for the delays and calamities at the LPC or the DOB and should not be penalized for any governmental delay. The evidence does not support that any significant delay was created or caused by the Respondent.

Since the covenants of lease are substantially performed by the approval of the plans, the completion of the physical work and the opening of the restaurant, the Respondent has proven substantial compliance with the lease. The Petitioner, in opposite, has failed to produce any evidence that the Respondent's failure to strictly comply with the applicable provisions of the lease for more than one year due to "government red tape", caused any substantial injury to the Petitioner or the building (Ogden et al. v. Hamer, 268 A.D. 751, 48 N.Y.S.2d 55; Riesenfeld, Inc. v. R.W. Realty Co., Inc ., 223 A.D. 140, 148, 228 N.Y.S. 1454, 153; Janks v. Central City Roofing, Inc., et al., 271 A.D. 545, 548–549, 67 N.Y.S.2d 355, 358 ; Vanguard Diversified, Inc. v. the Review Company, 35 A.D.2d 102, 313 N.Y.S.2d 269 (2nd Dept., 1970).

As in Vanguard Diversified, Inc., it also applicable in this case, the default by the Respondent here is "non-material and deminimis" ( Two Guys From Harrision–NY v. S.F.R. Realty Assoc., 186 A.D.2d 186, 587 N.Y.S.2d 962 (2nd Dept.,1992) Helsam Realty Co., Inc. v. H.J.A. Holding Corp., 4 Misc.3d 64, 781 N.Y.S.2d 554 (AT 2nd & 11th Jud. Dists., 2004) ; Marshall v. Ahamed, 5 Misc.3d 136(A), 799 N.Y.S.2d 161 (AT 2d & 11th Jud. Dists.2004) ; Louis and Anne Abrons Foundations, Inc. v. 29 East 64th Street Corp., 78 A.D.2d 814, 433 N.Y.S.2d 132 (1st Dept., 1980).

The Court finds substantial compliance by the Respondent by having the plans approved, obtaining the necessary licenses and other permits required to open his restaurant and the actual operation of the restaurant despite the obstacles. The restaurant was in operating for more than one year before these plans were finally signed off by the DOB in the letter of completion. Under these facts, forfeitures of a valuable leasehold interest is unwarranted for this mere technicalities and should never be permitted to work injustice or oppression (98 Delancey Street Corp. v. Barocas, Sup., 82 N.Y.S.2d 803, aff'd 275 N.Y.S.2d 802, 803, aff'd 275, particularly, when the failure to fully comply was not due to any fault or negligence on the part of the Respondent. Tenant. 6th Avenue & 24th Street Corp., v. Lyon, 193 Misc. 186, 189, 82 N.Y.S.2d 806, 809.

The evidence also reveals that the Respondent operates a family business at the demised premises. As stated above, he sold real estate and refinance another property to raise funds to open the pizzeria and was diligent and effective. Although the Respondent did not state the entire amount invested in the restaurant, it was certainly in excess of $150,000.00 and to loss this investment for this ground would be unconscionable and unjust. On the other side, the Petitioner has presented no injury, harm or prejudice to her or the building to justify forfeiture of the Respondent's leasehold interest on these grounds. See Vanguard Diversified, Inc. v. The Review Company, 35 A.D.2d 102, 313 N.Y.S.2d 269 (2nd Dept., 1970).

Likewise, the failure of the Respondent to not install a sprinkler system, notwithstanding mapproval by DOB, on March 3, 2013 and his subsequent withdrawal of said application was based on the undisputed fact that the building did not require a sprinkler. A review of the lease provision, implies that the Respondent would be required to pay the cost of the installation of a sprinkler system or any other related costs "in the event that a sprinkler system is installed by the landlord" by the lease (para.29) or by government regulation. Even the printed form, in para. 29, only requires the installation of a sprinkler system if required by the nature of the business or by government regulations. The withdrawal of the sprinkler system application in not a material breach of the lease. Had the Respondent commenced installation and did not complete it or abandoned the installation for any reason, the Petitioner could be exposed to risk of violations, fines and penalties. None of those contingencies exist here. The Petitioner never revealed any pending monetary transaction such as a refinance or legal requirement that would expose the Petitioner to any injury for the delay in the issuance of the signoff or the installation of the sprinkler system.

Based on the lease, the Court finds that there is no independent requirement to install a sprinkler system in the demise premises and therefore, any alleged breach of the above lease provision is immaterial and inconsequential. But, regardless of the immateriality of this breach, the Respondent is required to withdraw the sprinkler system application and present evidence to the Court and the Petitioner within 60 day of the date of this order or submit an explanation for noncompliance to the Petitioner and the Court ( Louis and Anne Abrons Foundations, Inc. v. 29 East 64th Street Corp., 78 A.D.2d 814, 433 N.Y.S.2d 132 (1st Dept., 1980).

PERMITTED USE

The first article of the rider, paragraph 40, imposes and prescribes the Permitted Use of the demised premises, as follows: Tenant shall use the premises for the preparation and sale, at retail, of pizza, Italian food, salads, desserts, related foods items and nonalcoholic beverages and for no other purpose whatsoever. Tenant covenants and agrees it will not use or permit to be used the premise in any way which will injure the reputation of the building nor permit such use to be a nuisance, annoyance or inconvenience or damaging to other tenants Tenant will not permit excessive noise or obnoxious odors to be hard or smelled outside the premises. Tenant will not use or have any type of deep fryer, stovetop or open flame cooking of any kind.

The Petitioner submits sufficient evidence to demonstrate that the menu items prepared and sold from the demised premises violates para. 40. The menus clearly show food items that are not customarily associated with Italian food like fresh fruit juices, smoothies, breakfast sandwiches and specialty coffees, (Petitioner's Exhibits "12–A" and "12–B"). Additionally, items in Petitioner's Exhibit "14–A"—"14–H", roles, pies, French fries, chicken wings, bagels with various cream cheeses, are also evidence of violations of this lease provision.

Looking at the menus themselves, the Court finds that the menu signs are necessary to perform this business. The Court also finds credible the testimony of the Respondent that the Petitioner had knowledge of this lease violation from"day 1'.

As argued by the Respondent, meal menus displayed in a commercial space is necessary for retail businesses; you can not display the menu options to the public in any other manner. The Court finds those are by-products in operating any take-in or take-out food business, is a display of a menu. The more difficult question is whether the Petitioner waived its rights to object to the menu items being prepared and sold in the premises.

The lease in this case, like nearly every commercial lease, contains a no-waiver clause; in this case, paragraph 24 entitled "No Waiver" as provided above and the courts have consistently enforced such no-waiver clause (citations omitted). The failure of the landlord to enforce the lease or to comply with any provision of the lease, does not preclude the landlord from the enforcement of the lease and the only true exception to this rule is when the landlord's knowledge, acquiescence or active involvement in the lease violation that waiver can be found. ( Simon & Son Upholstery, Inc. v. 601 West Assocs. LLC., 268 A.D.2d 359, 702 N.Y.S.2d 256 ).

The agents of the Petitioner, Anslen Ramjohn, testified that he ate at the pizzeria nearly every day and in fact, stated that he had breakfast on the date of his testimony. He ate the items prohibited on the menuan egg sandwich and wheat grass. More boldly and more compelling is the testimony of the attorney for the Petitioner that also testified that she had breakfast there regularly. The Court finds that the conduct of the agents of the Petitioner, especially the attorney for the Petitioner perplexing. How unfair is it that the lawyer and employee of the owner are customers of the restaurant, eat the alleged prohibited food and come to court as witnesses against the Respondent. Although the Court is fully aware that their appearances were necessary as part of their employment (although the attorney has left the employment of the Petitioner) their conduct should rightfully be imputed to the Petitioner. Their willingness to eat the prohibited food is indicative of the fact that the food items themselves are not ipso facto material violations of the lease. Their conduct is troubling; it reeks of unfair and "alternative facts", if you will and totally objectionable to the Court.

It is not unreasonable for the Respondent to presume that since the Petitioner's agents ate at this restaurant, there were no objections to the menu. As he credibility testified, the menu signs were installed at his place of business since it opened for service to the public. As stated earlier, MONA GORA walks pass the pizzeria nearly every day and based on her demeanor in court, the undersigned is confident that she observed the menus from the outside; it would not be part of her nature to ignore this alleged violation if she truly objected to the food service items. In addition, Ms. Gora, she was at the property for her own inspection. If there were any objections, she should have put them in writing then and there, not wait for more than one year to object. Her only objects then was his messiness, dirtiness and cleanliness; not the signs.

The fact that the Respondent deviated in the sale of items on the menu should not constitute a material violation of the restrictive covenant to justify the forfeiture of the lease in this case. The Petitioner has once again shown no harm or injury for the violation of this covenant in the lease. (Rubinstein Bros. v. Ole of 34th Str., Inc. 101 Mic.2d 219, 421 1 N.Y.S.2d 534 (N.Y. City Civ.Ct., 1979). It is clear that the Respondent must operate this pizzeria for breakfast, lunch and dinner to pay the rent. The rent escalation in this lease clearly shows that the Petitioner is entitled to a rental increase each and every year for the entire lease term. It has been become apparent to this Court that even large commercial establishments have to combine their commercial spaces to meet the rental demands and other lease obligations. For example, for every Dunkin Donut, there is a Baskin–Robbin right next to it! The Petitioner, namely, Mona gora, a real estate development expert should be aware that it is impractical and virtually impossible for this small business to make sufficient income to pay the rent selling pizza all day and all night. The diversity of this food menu is probably the primary reason the Respondent can afford to pay the rent. After all, he is the third tenant to occupy this part of the property in the past 6 years according to the testimony.

For all of the other reason stated herein, the Respondent should not loss this valuable lease hold interest for the breach of this restrictive covenant. As also found above, this provision does not contain a conditional limitation that would mandate forfeiture and no evidence of harm to the Petitioner can stand as grounds to end the Respondent's interest.

PIZZA SMELL OR NOXIOUS ODORS

Lastly, the Petitioner relies on the above article 3 and 87 of the rider (mistakenly asserted as "46" in the notice of termination) which states that "Tenant shall provide the Landlord with drawing and/or photograph showing the location of any louvers, air exhaust and intakes which might be visible from the exterior and agrees to the following: no grease shall be exhausted; noxious odors will not be permitted; unsightly or dirt as byproduct of the hot air exhaust will be cleaned from the building faXade no less than two times per annum by the Tenant at tenant's sole cost and expense; and Tenant shall be responsible for the installation and maintenance of a ventilation system adequate to meet all codes and regulations mandated by the City of New York. No noxious odors, smoke, grease or other emission shall be permitted"

First and foremost, the lease does not define the terms "noxious odors" and thus, the Court must enforce the terms of this widely used standard commercial lease form and the rider that seeks to modify its terms. Thus, noxious odors, smoke, grease or other emissions shall be granted their plain meaning-everyday terms ( Goldman v. White Plains Center for Nursing Care, LLC, 11 N.Y.3d 173, 176, 867 N.Y.S.2d 27, 896 N.E.2d 662 (2008) ; MHR Capital Partners L.P. v. Presstek, 12 N.Y.3d 640, 884 N.Y.S.2d 211, 912 N.E.2d 43 (2009) ; Van Shift Holdings Ltd. v. Energy Improv Structure Acquisition Corp., 65 A.D.3d 405, 884 N.Y.S.2d 24 (1st Dept., 2009).

So, noxious means harmful, toxic, poisonous, deadly, lethal, venomous, and injurious. Smoke means to burn, smolder or to be on fire. Grease is fat, lard, blubber, oil, or lubricant. Emissions are the release of energy; implied in the lease here, that the aforementioned prohibited items cannot be released or exhaust from the demised premises.

The court has reviewed the provisions of the lease and finds that the Petitioner's proof of non-compliance insufficient and equivocal. There was no evidence introduced to demonstrate that the food prepared at the property emitted odors that were dangerous or hazardous to the health of the public or occupants or guest of the tenants in occupancy. The lease does not define the type of odors that would not be tolerated and this ambiguity shall be construed against the Petitioner. The Petitioner cannot argue that cooking odors from pizza would be deemed "noxious" and the facts support a finding that the parties did not contemplate pizza odors as offensive, dangerous or harmful odors. Cooking odors will be emitted inside and outside of the demise premises, by the very nature of cooking including preparation of the pizza, notwithstanding the alleged defective and/or improperly installed ventilation system.

The problem from the view of the Court is whether emission of the smell of baked pizza and other food into the building is attributable to the act(s) of the Petitioner or the Respondent or both.

During trial, the Petitioner called Christopher Bodenmiller, P.E., Consulting Engineer and introduced into evidence his inspection report with supportive findings (Petitioner's Exhibit "21"). He makes findings that were relevant and irrelevant to the termination of this tenancy.

He writes that "the scope of inspection was to include my observations of the code compliance of the existing pizza oven exhaust system, and to analysis and respond to the previous reports by ABS Engineering and Smog Hog". After identification of the names and types of cooking and ventilation systems installed in the demised premises, he concludes that 1. Oven breeching-combustion exhaust duct is indirectly connected to the type II exhaust hood. Photo one should the filter on and photo # 2 shows filter off on the date of his inspection. The exhaust is pitched to the outside of the property. The duct work is light gauge; 22–24 gauge. The exhaust duct does not physically connect to the 16 x 9 grille at the perimeter. In addition, the gauge is not code compliant; the code requires number 16 gauge. The duct work was also not insulated.

Although these findings were significant if they were needed for a government inspection but were not relevant to the termination notice except for the finding that "[t]he exhaust duct does not physically connect to the 16 x 9 grille at the perimeter". "[T]he lack of a physical connection from the exhaust duct opening to the exhaust grille allow for exhaust fumes [to] spill into the ceiling cavity from the opening of the exhaust duct. Pizza fumes were noticeable in the ceiling cavity. The exhaust duct is required to be physically connected to the exhaust grille or to a plenum in order for the air to exhaust direct outside as per code section M506 .1." "All ducts shall lead directly to the exterior of the building and shall terminate as required by section 506.3.12".

He concludes that the pizza oven meets minimum code requirements and the lack of mechanical means to provide make up air can be made up in the space by mechanical means or by gravity. The engineer also acknowledged that there had been repairs conducted between the lobby and the adjoining wall of the pizzeria. "From his observation, the pizza exhaust air that is spilling into the ceiling cavity is being transported in the main building and even up the building in the opens in the walls ceiling, and the duct/diffusers. To mitigate the transport of the air, the exhaust as required by code needs to be directly connected to the grille".

The testimony of the Respondent was corroborated by CHRISTOPHER BODENMILLER, P.E., the engineer who testified that the duct system was difficult to install at the location since the front of the property was narrower than the rear. The duct work depicted in Petitioner's Exhibit "18", at the end of the perimeter, shows that the duct work can not extend to the end because it is round and the space square. It is clear to this Court that for this duct work to extend to the end of the grille the word beams on the top and bottom would require some kind of alteration triggering the consent of the Petitioner since it is structural in nature. The wood observed in the photographs could be supporting beams. The engineer never divulged any method to resolve this problem nor proffered his opinion of whether the resolution involved the Petitioner's consent.

More troubling, the engineer did not testify with a reasonable degree of engineering certainty that the breech between the duct work and the grille was the cause in fact of the pizza smells entering other parties of the building. His testimony was ambiguous; he was reluctant to definitively opine that the pizza smells entered the building because of the aforementioned breech. He stated that when he inspected the two ceilings above the Respondent's ceiling and observed numerous holes, cracks, and particularly pointed out that the opening in the mezzanine slab walls above the drop ceiling could contribute to the pizza smell emitting into any area of less resistance (Petitioner's Exhibits "17–A"–"17–D'). These are latent defects in two ceilings and a mezzanine slab or phelum above the Respondent's drop ceiling. The Respondent should not be responsible for conditions that were not only hidden and concealed above his ceiling but also not within his dominion and control and definitely not part of his leased space. He testified, with no rebuttal evidence to the contrary, that he had to go to the second floor in the elevator and come down the stairs inside of a stairwell behind his commercial space to get to the slab or phelum. He only knew about this area when his HVAC company installed the ventilation system.

MONA GORA admitted her herself that the exhibits in the lease were not part of the leased space. Therefore, two ceilings above the Respondent's own visible ceiling, that which concealed two ceiling above his with serious holes and other major defects, are not his responsibility since he was not leased this space. The prior tenant had use and occupancy of this space, not the Respondent. If the Respondent had been rented the mezzinine, now used as an office, he may be liable but not under the facts and circumstances herein.

Anslen Ramjohn testimony further supports the Courts finding that both ceilings were installed in the building by the prior tenants and not the Respondent. It was undisputed by either party that the former tenants in this space made certain alterations prior to the Respondent's occupancy. In fact, the prior tenant occupied the storefront and the mezzanine area where many of these latent defects appear in the photographs.

Although the Respondent took possession in "as is" condition, the Respondent should not be held liable for conditions that are not open and visible in his leased space. As compelling, to hold the Respondent liable for conditions that the Respondent had no knowledge or notice, would be patently unfair and unjust.

The Court accepts the opinion of the Petitioner's expert that the Respondent's duct work was faulty as shown in Petitioner's Exhibit "18"-a gap at the end of the duct and the grille. However, based on the other defective conditions in the building this Court cannot conclusively find that this condition is the cause in fact of pizza smells entering the building.

During the proceeding, it was apparent that the Petitioner had hired an engineer to investigate the problem and did not notify the Respondent until about six month later. Notwithstanding this fact, the Court directed the Respondent to hire his own engineer to determine the cause of the pizza smells in the building. On May 16, 2014, ABS Engineering conducted an inspection of the property as requested by the Respondent. Alex Schwatz, P.E., LEED AP., conducted the inspection and prepared the report admitted into evidence as Respondent's Exhibit "A" and Notice to Admit Exhibit "B". The report found that "the ductwork terminates at a grille on the front faXade of the Tenant's space. The grill is approximately 16" x 8". The exhaust penetration through the exterior faa¸de was cut smaller than the required opening for this grille. The exhaust ductwork is squeezed to fit the opening and positioned behind the grille, but is not directly connected. There is noticeable deposits at the termination and we believe that a portion of the exhaust is being recirculated to the ceiling plenum. The discharge of the grille is located 10'–0" above the sidewalk or windows in compliance with Section MC401.5.0 and Section 506.3.12 .3. He concludes that the duct work and exhaust fan are code compliant, however, "the installation of the termination of the exhaust ductwork and the selection of the grille should be corrected". He explicitly prescribes the manner in which this can be corrected.

In addition, Respondent's engineer describes that "when the access door to the ceiling is opened, there is a noticeable flow of air through the front door of the Tenant's space and into the ceiling plenum. This caused us to investigate the possibility of excessive negative pressure in the adjacent building lobby. While in the building lobby there was a noticeable flow of outside area through the first set of double doors when they are opened. These doors were provided with a second set of double doors in order to create an entrance vestibule; however, the second set of door were propped open. "Based on our observations it appears that there is a negative pressure within the building lobby. Stack effect, wind pressure, elevators and mechanical ventilation can all be contributing factors to negative pressure in building lobbies. The infiltration caused by these sources can have undesirable effects on a building, including odor propagation".

His ultimate findings of the three factors contributing to the odor propagation through the building-improper exhaustion system installation; penetrations connecting the Tenant's space to the building lobby and excessive negative pressure within the building lobby. "We feel the Tenant should be responsible for making the corrections to the exhaust systems noted in this report. We feel the Landlord should be responsible for investigating the party walls to confirm if there are any openings connecting the two spaces. If they exist, the Landlord should be responsible for repairing them." "We believe that a portion of the exhaust is being circulated to the ceiling plenum due to the improper exhaust louver installation. It is then being transferred through the ceiling towards the opening in the walls connecting the two spaces due the lobby's negative pressure. Finally, it is being drawn into the building lobby and subsequently through the building via the elevator and stair shafts".

Now comparing both testimonial and documentary evidence, both engineers were in agreement on the improper installation of the ductwork but differed, only slightly, about the propagation of odors from the pizzeria to the rest of the building. Contrary to the contentions by the Petitioner, the Court will not impose a negative inference against the Respondent. The report of ABS was admitted into evidence on consent and the Court is of the opinion that no testimony was necessary.

The Court does not agree with the Petitioner that the engineer, ipso facto determined that the lack of the sealant, the size of the gauge and even the space between the grid and the gauge was so explicitly clear that this condition caused the odors.

It is clear from the totality of the evidence that the pizza smells were the responsibility of both the Petitioner and the Respondent. The evidence, engineer's reports and testimony leads this Court to no other conclusion than that the odors emanated from two sources. The serious cracks in the phelum, notwithstanding the ventilation system, created another exit or another manner in which air could escape and where there were holes, the engineer's mechanical description of this process of air circulation distribution as well as good old common sense, leads to the conclusion that air will find its way to that point of least resistance to the cracks in the phelum and the mezzanine slab. As provided above, the multiple cracks, holes in the ceilings above the Respondent's ceiling is within the dominion and control of the Petitioner and not the Respondent. The Petitioner therefore is responsible for any and all work that is required to be performed in this area and not the Respondent.

This Court, having conducted a physical inspection of the property, without notice to either side, could not discern any overwhelming smells of pizza in the building. The Court began the inspection on the 22nd floor and walked down the rear stairway to each floor and exited that stairway to each floor to discern any pizza odors. Only on the 22nd floor stair case landing was there a faint smell of pizza; similar to the description of MONA GORA, when she testified that it smelled like baked goods. However, the Court did not find the smell offensive and certainly not toxic; it was not even strong. As the Court went down the stairway and smelled all the public areas and in fact, without notice, knocked on some of the tenant's doors, there were only two commercial tenants that said that they smelled pizza in a building out of 23 flights in this luxury commercial building. The Court will not disclose the name or floor of those tenants.

Additionally, when in the lobby of the building, there was no discernible odor of pizza in the lobby and it is the Court's opinion that based on the fact that the Petitioner had the openings around the radiator sealed, a structure condition that was not the responsibility of the Respondent, that abated the pizza smells coming into the lobby. It is clear that those holes around the radiator values and pipes allow odor propagation. This condition was structural and part of the building, not the Respondent's responsibility. In addition, ABS stated that the opening of the lobby door could have also contribute to smell propagation and the Court finds that this conclusion is fair and reasonable.

This Court concludes that the odor propagation is not conclusive; it emission was from the holes around the radiator and the hole in the mezzanine slab, in the ceiling above the Respondent's storefront, in the phelum ceiling and from the multiple holes in the ceiling from prior tenants from electrical installation and from the gap between the grille and the ductwork. See Respondent's Exhibit "C" (mezzanine with large holes in the walls and ceiling), and Respondent's Exhibit "F–2", "F–3", "F–4", "F–5", "F–6", and "F–7" that clearly demonstrate the multiple holes in the walls, ceilings and plenum ceiling and mezzanine area that all contain possible points of entry for pizza smell to enter the building and elevator shafts. The pizza smell on the 22nd floor in all likelihood emanated from the holes in the ceilings above the Respondent's commercial space. Both the Petitioner and the Respondent are jointly responsible for the odor propagation. Therefore, based on the evidence adduced at trial, the court inspection and the engineers reports from both Petitioner and Respondent, this lease violation is also deminimus, immaterial and is not grounds to forfeit this Respondent's tenancy.

This condition certainly was not hazardous and not life threatening as claimed by the Petitioner's attorney. If the condition was so hazardous to the property, the Petitioner should have taken action to abate the problem, of course, at the Respondent's cost and expense. But, no action was taken by the Petitioner, the superintendent, or Master Fire to remediate the saturation of grease in that area; it appears that it was not that serious.

The allegation about the use of the basement for a prep kitchen is beyond the scope of the notice to termination. Absent from the termination notice is any claim about the alleged improper use of the basement as a prep kitchen; improper electrical outlets; dirty or unsanitary conditions therein; encroachment of the Respondent into the Petitioner' space; garbage and other debris in the basement. Moreover, there is no claim that the Respondent was cooking in the basement until the Court issued the directive to cease using the basement for any food preparation during the pendency of this case. At first blush, the photographs presented to the Court appeared to support a dangerous condition. However, the Respondent explained that the sauces were heated up and not prepared and the pasta was cooked and being reheated in the basement. These allegations were clearly in the written notices from the Petitioner's attorney prior to litigation, however, those allegations were not stated in the Notice to Cure and more importantly, excluded from the notice of termination. Therefore, these issues are precluded as a matter of fact and law. Predicate notices are not amendable under these circumstances and in any event, are precluded.

However, even if the Court were to consider this evidence, this Court, as in the Headless Horseman Entities Inc., v. AP Petroleum Corp., supra, would not terminate the Respondent's tenancy absent a separate independent finding from the appropriate government authority like DOB or Department of Health that the Respondent's use of the basement for the purpose of heating up prepared foods is a violation of the law. As Judge Valdespino so aptly stated—" can the Court in a summary proceeding make a finding that the respondent has violated a law or State and County regulation, in the absence of such a finding by an agency or court in which the violation has been adjudicated ? We both, giving deference to the appropriate administrative agency such as DOB, find it "draconian and contrary to law" to usurp the power of the administrative agency that has primary jurisdiction to determine the laws that affects building and their use. "[A] termination of lease based on a violation of the covenant that the tenant will abide by all federal, state and municipal law, should be based on an actual finding by an appropriate jurisdictional body, of an actual violation of law. In effect, the Petitioner, wants this Court to terminate a tenancy of the Respondent based on the Court's independent evaluation of the facts and evidence instead of the proper administrative agency. This Court will not exceed its authority and give deference to the administrative agencies that enforce these laws and regulations.

For our purposes here, as well as the Headless Horsemen, supra, a separate independent finding of an actual violation of law should be imposed for this kind of alleged lease violation, which in the opinion of this Court, could serve as the basis to establish "injury to the landlord" which the law requires prior to the termination or forfeiture of a lease.

Moreover, the type of cooking units and the type of countertops do not appear to be in violation of the lease. An examination of Petitioner's Exhibits "10–A", "10–D", "22–B" and "22–C" show that Respondent has an tabletop fryer, and food preparation on the tables. It is also clear that the original stoves in the basement was Faberware (Petitioner's Exhibit "10–D"), which was later replaced by Respondent with Respondent's Exhibits "10–I" (magnetic cookware). This does not appear to a heavy-duty prep kitchen. These cooking units are small units, do not occupy any substantial amount of space, and should not require any special hood. The Respondent denied every frying food in the basement and no evidence was admitted to the contrary. The Court has no authority to determine if the use of the basement is contrary to the certificate of occupancy since the basement is deemed ordinary and the commercial space is designated as Use Group 6 which include various types of retail uses. The Court defers to the administrative agency that regulates this property and either side may seek this intervention to resolve this issue, "if they be so advised".

In light of the proof, the Court finds that the alleged lease violation is deminimus, immaterial and in part, waived by the Petitioner and Petitioner's agents. The Respondent exercised due diligence and acted in good faith to comply with the lease terms after due notice. Government delays, deviations in menus, the display of retail marketing advertisements signs not objected to the Petitioner after removal of objectionable signs, are insignificant lease violations for forfeiture of this family owned and operated local business without prejudice or harm shown by the Petitioner. In the exercise of this Court's discretion based on the evidence presented by both parties concludes that the forfeiture of this long-term lease would inflict serious hardship on this small business owner inappropriate to the competing interest of the parties. There was no permanent waste proven by the Petitioner and no damage from these breaches that would change the nature of the realty itself, extraordinary in scope and affect, or unusual in expenditure; no harm was alleged or proven by any of the evidence. There being no material violation of the lease results in there being no grounds to evict the Respondent.

Accordingly, Respondent's motion, in limine, to dismiss the petition is granted; judgment shall entered in favor of the Respondent, the Landlord and Tenant relationship is reinstated and the petition is dismissed with prejudice.

Notwithstanding evidence presented by the Respondent that the Petitioner also failed to comply with the lease by structural deficiencies at or near the radiator and in the ceiling, these conditions do not appear to have been known by the Petitioner prior to this law suit. These were latent conditions. Therefore, the Respondent did not prevail on the merits here to show that the Petitioner did intentionally violate the lease. Similarly, the Petitioner did not prevail on the merits as detailed above and is not entitled to legal fees.

As provided above, the Respondent is ordered to obtain a sign off or appropriate government release of the sprinkler system from the building within 60 days and provide copies to the Petitioner and the Court or request additional time for compliance.

The Court shall mail a courtesy copy of this Order and Decision to the attorneys for the respective parties. The attorneys for the respective parties must appear before the Clerk of the Court in Part 52 to retrieve all of the exhibits admitted into evidence and shall acknowledge receipt thereof in writing on a form to be provided by the Court.

The Respondent shall serve a copy of the judgment of dismissal/possession along with a copy of the entered decision and order herein on the Petitioner within 30 days of the date of this decision and order and shall file proof thereof with the Clerk of the Court within 30 days thereafter.

This constitutes the decision and order of the Court.