Opinion
39534/03.
Decided December 19, 2005.
The Defense has moved this court for an order vacating plaintiff's stay or temporary restraining order, granting partial summary judgment to the defendant, dismissing plaintiff's complaint for a declaratory judgment that the lease on the subject premises extends to the year 2014, and compelling discovery.
The plaintiff, in turn, has cross-moved for an order, pursuant to CPLR § 3212, granting it summary judgment against the named defendants, and, pursuant to CPLR §§ 3224 3226, dismissing the defendants' answer, counterclaims, and defenses for failure to comply with plaintiff's discovery demands or, in the alternative, precluding the defendants' from offering evidence at the trial of this action based upon a failure to provide discovery.
As per this court's May 10, 2004 decision, NYLJ 6/16/04; p. 19; col 1., which was recalled as per the parties' stipulation staying these proceedings, the facts of this case and the law with regards to injunctive relief are as follow, Plaintiff moved by way of Order to Show Cause for a preliminary injunction to enjoin ". . . the Defendants, her agents, servants, and employees, and all persons acting upon her behalf, pursuant to Section 6301 of the Civil Practice Law and Rules, and pending the hearing of this action, from (i) instituting any proceeding to evict Plaintiff from the Premises; (ii) advertising the Premises for rent; (iii) listing the Premises with any broker for the purpose of renting it; and (iv) committing any act that interferes with Plaintiff's use, occupation, and enjoyment of the demised premises, located at 99 Scott Avenue, Brooklyn, New York . . ." Plaintiff represented that on or about January 16, 1984, it entered into a lease agreement with Nathan Uretsky for a twenty year term, commencing January 16, 1984 and ending January 15, 2004. On January 3, 1995, plaintiff and Nathan Uretsky entered into a written Lease Extension which provided for an automatic extension of the lease from January 15, 2004 to January 15, 2009, with a right to renew for an additional five year period on the same terms and conditions as set forth in the current lease and extension agreement. The plaintiff also asserted that both Harvey Kitay, Esq. and Donna M. Zerbo, Esq., the attorneys who respectively drafted the original lease and subsequent extension agreement furnished affidavits confirming the foregoing to the extent applicable. Upon Nathan Uretsky's death, the property was transferred to the named defendant, who is his surviving spouse.
On or about April 15, 2003, the defendant's attorneys informed the plaintiff that its lease would be discontinued upon its original January 15, 2004 expiration date. It is the plaintiff's contention that such action is impermissible inasmuch as it (1) ". . . is ready, willing, and able to continue to occupy the demised premises pursuant to the terms and conditions of the Lease and Extension of Lease Agreement;" and (2) is not in default of either document. The plaintiff also asserts that it would sustain substantial hardship and economic loss as a result of such termination, especially in light of the substantial sums of money and labor that it has expended on the premises vis-a-vis furnishings, equipment, fixtures, and various improvements, and the cost reasonably anticipated to total hundreds of thousands of dollars of having to relocate and furnish, equip, and improve new facilities, as well as the possibility of losing key employees.
The defendant, in opposition, asserted that the 20-year lease alleged by the plaintiff is a forgery. To substantiate that contention, the defendant annexed to her papers copies of other documents executed by Nathan Uretsky during his lifetime showing samples of his handwriting.
In addition, the defendant notes that Nathan Uretsky acquired the subject property on January 31, 1984; and, therefore could not have executed any lease on January 16, 1984. Furthermore, the defendant maintains that Article 3 of the actual lease, dated January 31, 1984, indicates a seven year lease, ending January 31, 1991, which granted the tenant an option to extend for an additional three year term. Thereafter, on or about December 19, 1994, Nathan Uretsky in conjunction with the sale of his stock in Acme American Repairs, Inc., extended the lease for a five year period "from the date of expiration of such current lease" (i.e., from January 31, 1994 to January 31, 1999), with an option to renew for an additional five year period (i.e., from January 31, 1999 to January 31, 2004), all on the same terms and conditions as set forth in the current lease and the said agreement. As an aside, it should be noted that the purchasers of Acme American Repairs, Inc. were Harvey Katzenberg and Birinda Singh Madan, the former being Nathan Uretsky's step-son who subsequently sold his shares to an Eduardo Lazzari. In further support of her claims herein, the defendant pointed out to the court that whereas the extension alleged by the plaintiff provided for a "bargain rental of $4,200.00 per month" [$50,400 per annum] until January 15, 2014, the current fair market value rental of the premises is at the rate of $7.00 to $12.00 per square foot, and the gross building area of the premises consists of 29,345 square feet, which would result in a current fair market rental value of a least $210,000.00 per annum (sic). In addition, the defendant argued that there would have been no need for Donna M. Zerbo, Esq. to have ". . . prepared documents on or about January 9, 2001 requesting that Rhoda Uretsky extend the lease of plaintiff for a five-year period at a new rental of $6,200.00 per month, rather than the rental reflected in the original lease in the amount of $4,200.00 per month," if in fact the original lease had a term ending January 15, 2014 as alleged by the plaintiff. So too, counsel for the defendant asserted that when he had spoken to Harvey Kitay, Esq., he was informed by him that he only had a non-executed copy of a 20 year lease and that he had not been present at its execution; yet, in the plaintiff's exhibit affirmation he indicates that he recalls that the same had been signed. The defendant concludes her arguments in stating that she has ". . . offered to negotiate in good faith with plaintiff to enter into a new lease agreement. Plaintiff, however, seeks to impose their (sic) will upon the defendants (sic) and saddle her with annual rental that is approximately 25% of the actual fair market value rental of this property. The Court should not condone their actions."
Injunctive relief will not lie where there is an adequate remedy at law (See Nassau Roofing Sheet Metal Co. v. Facilities Dev. Corp., 70 AD2d 1021); hence, a preliminary injunction requires that its seeker demonstrate 1. the likelihood of success on the merits; 2. irreparable injury absent the granting of preliminary injunction; and 3. a balancing of the equities (See W.T. Grant Co. v. Srogi, 52 NY2d 496, 438 N.Y.S.2d 761; Nassau, Supra; Tucker v. Toia, 54 AD2d 322; Albini v. Solork Assoc., 37 AD2d 835). In balancing the equities, the Court must determine whether the ". . . irreparable injury to be sustained by the Plaintiff is more burdensome to it than the harm caused to the Defendant through imposition of the injunction (See Edgeworth Food Corp. v. Stephenson, 53 AD2d 588).
It is patently obvious to this Court that the Nathan Uretsky signature on the purported January 16, 1984 20 year lease matches none of the other documentary signatures of his herein presented. This would tend to lead one to believe that the lesser lease terms advanced by the defendant are more accurate. However, despite all of her protestations to the contrary, it is curious to note that defendant's exhibit L is a letter, dated November 18, 1998, wherein she indicates that she is the owner of the subject property; that Acme leases the premises for $4,200.00 per month; and, that Acme has a lease until the year 2005 with an option for 10 more years. Under these circumstances it is difficult to discern where the truth lies, much less in which party's favor the likelihood of success on the merits best resides. In addition, neither side has convincingly demonstrated the possibility of injury that money damages will not salvage. Hence, the record is devoid of any irreparable harm. In balancing the equities, it would appear that the plaintiff is the party to be most inconvenienced in having to possibly re-locate. However, the immediacy of such a measure can be postponed by the plaintiff negotiating a new lease to take effect only in the instance that it is not ultimately victorious on the underlying action. In any event, inasmuch as the plaintiff has failed to satisfy the three-prong requirement for the imposition of a temporary restraining order, its application therefor is denied. In light of the foregoing, the defendant's motion to vacate the stay or temporary restraining order is denied as moot.
"A party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Ayotte v. Grevasioi, 81 NY2d 1062, 601 NYS2d 463; Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923). A prima facie showing then shifts the burden to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material questions of fact (see Alvarez v. Prospect Hosp., supra)."
In light of the conflicting nature of the facts herein concerned, this court finds that neither side has made a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact, specifically as regards the amounts and terms of the parties' lease(s). Accordingly, both the defendant's request for partial summary judgment, dismissing the plaintiff's complaint for a declaratory judgment that the lease on the subject premises extends to the year 2014, and the plaintiff's request for summary judgment against the named defendants, pursuant to CPLR § 3212, are denied.
Finally, while the defendant asserts that the plaintiff's discovery responses are inadequate and, hence, the plaintiff should be compelled to comply, the plaintiff argues that since the defendant has not responded at all, she should be precluded. Compliance with an order to disclose requires both a timely response and a good faith effort to address the request meaningfully (see Kihl v. Pfeffer, 94 NY2d 118, 700 NYS2d 87 [1999]). CPLR § 3126 provides, in pertinent part, that when a party refuses to obey an order for disclosure, the court may make an order "prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony . . ." The Appellate Division, Second Department, aptly observed in the matter of Sowerby and Okonji v. Camarda, et. al., 20 AD3d 411, 798 NYS2d 125, 2005 NY Slip Op. 05779, that "[t]he nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who has refused to obey court orders, or willfully fails to disclose information which should be disclosed, is a matter within the discretion of the court (see Conch Assoc. v. PMCC Mortg. Corp., 303 AD2d 538, 756 NYS2d 456; Jaffe v. Hubbard, 299 AD2d 719, 730 NYS2d 165). Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted when a party's conduct is shown to be willful and contumacious (see Rowell v. Joyce, 10 AD3d 601, 781 NYS2d 682; Beneficial Mtge. Corp. v. Lawrence, 5 AD3d 339, 772 NYS2d 713; Frias v. Fortini, 240 AD2d 467, 658 NYS2d 435)." The court went on to note that ". . . the willful and contumacious character of the appellant's failure to respond to discovery demands can be inferred from his repeated failures to comply with the court's orders, as well as the absence of any explanation offered to excuse his failures to comply (see Rowell v. Joyce, supra; Montgomery v. City of New York, 296 AD2d 386, 745 NYS2d 464; Espinal v. City of New York, 264 AD2d 806, 695 NYS2d 610)." In Frost Line Refrigeration, Inc., et al. v. Frunzi, 18 AD3d 701, 795 NYS2d 741, 2005 NY Slip Op. 04183, the Appellate Division, Second Department, also concluded that ". . . plaintiffs' failure to respond to discovery could be inferred from their refusal to comply with the defendant's discovery request for over three years after the date set forth in a preliminary conference order, as well as the inadequate explanation offered to excuse their failure to comply (see Kihl v. Pfeffer, supra; Ali v. Kring, 272 AD2d 422, 707 NYS2d 913; Brady v. County of Nassau, 234 AD2d 408, 650 NYS2d 802).
In light of the foregoing, and inasmuch as the court is not presently convinced that either side has acted willfully and contumaciously, the court directs that the parties execute reciprocal discovery schedules to be so ordered by this court. To the extent that the parties are unable to amicably do so, then they shall appear before this court on February 24, 2006, at which time the court shall set the dates and times for discovery.
This constitutes the decision and order of this Court.