Opinion
Index No. 653426/2020 Motion Seq. No. 003 004 005
05-27-2022
21 EAST 62ND STREET REALTY, LLC, Plaintiff, v. ENTERPRISE RESTAURANT LLC, d/b/a Amaranth, Defendant.
Unpublished Opinion
MOTION DATE 03/25/2022, 03/08/2022, 03/18/2022
DECISION+ ORDER ON MOTION
HON. LOUIS L. NOCK PART, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 003) 59, 60, 61, 62, 63, 68, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, and 110 were read on this motion to DISMISS or AMEND .
The following e-filed documents, listed by NYSCEF document number (Motion 004) 73, 74, 75, 76, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, and 111 were read on this motion for REARGUMENT .
The following e-filed document, listed by NYSCEF document number (Motion 005) 112 was read on this motion for MONEY JUDGMENT.
Upon the foregoing documents, it is ordered that defendant's motions to dismiss the complaint (seq. no. 003) or, alternatively, to amend the answer, and for reargument of this court's order granting plaintiff use and occupancy, filed as NYSCEF Doc. No. 66 (seq. no. 004); and plaintiff's motion for a money judgment (seq. no. 005), are consolidated for disposition and determined as follows.
The underlying facts of this case are detailed in this court's decision and order filed June 28, 2021 (NYSCEF Doc. No. 26), to which the reader is referred. Subsequent thereto, this court granted the plaintiff's motion for an order directing defendant to pay use and occupancy at the base rent set forth in the subject lease pendente lite (see, NYSCEF Doc. No. 66). Defendant now moves for reargument of that order, and also moves to dismiss the complaint, or alternatively, to amend the answer, on the same asserted ground; to wit, that the controversy forming the gravamen of this landlord/tenant action was actually settled and, thus, no longer justiciable. Defendant points to a series of text messages transmitted August 31, 2021, during the pendency of this action, which, defendant posits, accomplished the following:
[I]n consideration of the Defendant Tenant's agree[ment] in writing to extend the lease for twelve (12) years on the same terms and conditions as the current lease as amended, . . . the Plaintiff Landlord agreed to allow the Defendant Tenant to satisfy the obligation to pay unpaid rent as alleged in the Complaint and plus rent due since the commencement in the amount of fifty percent (50%) of the unpaid balance on a monthly basis for five (5) years . . . .(NYSCEF Doc. No. 68 at 1.)
The court disagrees with defendant's assertion that the subject text communications constituted a settlement of this action. The full text exchange reveals that those communications were part of ongoing settlement discussions, that the parties clearly understood any final agreement must be memorialized in a writing, and that the parties did not reach a final agreement. Defendant omits a text it sent on August 30, 2021, just one day before the August 31, 2021 texts, where its principal, Paola Pedrignani, states: "[T]he offer to extend the lease for a term of a total of ten years is acceptable, subject to finalization of a document memorializing that. Please send us the draft of the extension. . . ." (NYSCEF Doc. No. 83.) It further requested "a formal settlement agreement" for this litigation (id.).
Plaintiff's August 31, 2021, text - submitted by defendant (NYSCEF Doc. No. 61) - was a response to Pedrignani, where the parties were continuing settlement discussions and plaintiff "outline[d]" a "proposal," including the lease extension and a payout of arrears. The text also provided that defendant was to make a $200,000 good faith payment towards the $900,000 which was in arrears as of that date. Pedrignani responded, again stating that plaintiff should "paper" it (id.).
The texts exchanged after August 31, 2021 (which defendant likewise omitted from its moving papers), further confirm there was no agreement on August 31, 2021.
On September 10, 2021, plaintiff sent a text to Pedrignani regarding the $200,000 good faith payment referenced in the August 31, 2021 text, which she had agreed to pay "the next day" (see, id.). It states: "[I]f you don't send it then there won't be any extension and we'll have to pursue our rights in court. . . ." (NYSCEF Doc. No. 84.)
On September 13, 2021, plaintiff sent another text to Pedrignani regarding the payment which states: "Paola, I just want to know bottom line if you are going to send the $200k 'good faith' check (which is really not such good faith considering you owe us over $900k). It's a simple yes or no question. . . . Anyway, just answer yes or no and we will take it from there. . . ." (NYSCEF Doc. No. 85.) Pedrignani's response on September 13, 2021, makes quite clear there was no agreement on August 31, 2021. In this text, Pedrignani states: "It is in our mutual interest to solve this amicably and I want to keep our channel of communication open. . . . I am trying to reach everybody and give you a straight answer. . . ." (Id.)
On February 8, 2022, there was a text exchange which again confirmed the parties had not reached a resolution. Plaintiff states: "Please just let me know if we are doing a deal or not and I will act accordingly. . . ." (NYSCEF Doc. No. 86.) Pedrignani responded and again confirmed there was no settlement. She states: "I could ask myself the same questions and have the same doubts. . . . But I prefer to focus on the positive and try to work toward a solution that can help both of us[.] I spoke again with the lawyer yesterday and he will be speaking with yours probably today. . . ." (Id.) Plaintiff responded stating: "What needs to be discussed?. . . All I'm saying is at some point you have to say you're going to do this deal or not. . . ." (Id.)
The next response from Pedrignani makes crystal clear that the case had not been settled. Pedrignani states: "If you go back and read my messages you can see we have been the one pushing for a deal since September. . . . Bottom line we want to make it work. . . ." (Id.)
The import of all the foregoing communications is that the parties' efforts to settle this case did not materialize into a concrete and final resolution. They were, in the end, unrealized negotiations. Thus, defendant's motion to dismiss the complaint on the basis of the parties' text communications, casting them inaccurately as a settlement of this case, must be denied. The motion also asks, alternatively, for leave to amend the answer to include a counterclaim asking for a declaratory judgment that those communications constitute a settlement. A motion for leave to amend, though, cannot be granted if the proposed amendment is "palpably insufficient or clearly devoid of merit" (Cruz v Brown, 129 A.D.3d 455, 456 [1st Dept 2015]). Because those communications decidedly do not evidence a final settlement of this action, the requested amendment fails for the lack of any merit.
A motion for leave to reargue can only be granted if it is shown that the underlying order was "based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion" (CPLR 2221[d] [2]). Because the predicate text communications decidedly do not evince a final settlement of this action, it cannot be said that this court overlooked or misapprehended anything in directing the defendant to pay pendente lite use and occupancy in its underlying order (NYSCEF Doc. No. 66).
Accordingly, defendant's motions must be, and hereby are, denied.
Plaintiffs motion for a money judgment for outstanding unpaid use and occupancy payments (seq. no. 005) was withdrawn, without prejudice to renew (see, NYSCEF Doc. No. 112). Accordingly, that motion is denied as withdrawn, without prejudice to renew.
The court notes that plaintiff did, in fact, renew that motion (seq. no. 007), which is presently awaiting any opposition filing or any subsequent oral argument.
Accordingly, it is
ORDERED that defendant's motion to dismiss the complaint, or alternatively, to amend the answer (seq. no. 003), is denied; and it is further
ORDERED that defendant's motion to reargue this court's order granting plaintiff use and occupancy, filed as NYSCEF Doc. No. 66 (seq. no. 004), is denied; and it is further
ORDERED that plaintiffs motion for a money judgment (seq. no. 005) is denied as withdrawn, without prejudice to renew.
This will constitute the decision and order of the court.