Plaintiff, Defendants.

Transcription

1 SHORT FORM ORDER Present: SUPREME COURT HON. JOSEPH A. DE TRIAL/IAS, PART 8 NASSAU COUNTY CLAIRE'S CAREFREE CORP., d/b/a CURVES FOR WOMEN, -against- Plaintiff, SOPHISTICATED AFFAIRS, LTD., MICHAEL ELARDO and ALLISON ALBERT, - STATE OF NEW YORK MAR0 Defendants. Justice SEQUENCE No. MOTION DATE: June 25, 2003 INDEX No. 9840/ The following papers read on this motion: Notice of Motion and Supporting Papers Memorandum of Law in Support of Summary Judgment Affirmation in Opposition Reply Affirmation Motion by plaintiff for an order pursuant to CPLR 3211(b) and 3211(a)(6) dismissing the defendants' affirmative defenses and counterclaim and for an order pursuant to CPLR 3212 granting summary judgment to the plaintiff on its causes of action for breach of contract and constructive eviction is determined as provided herein.

2 This is an action, inter alia, for breach of the sublease agreement between defendant Sophisticated Affairs, Ltd., (Tenant) and the plaintiff (Undertenant). The plaintiff's complaint alleges, inter alia, that "on or about August 1, 2001, Claire's [i.e., the plaintiff] and Sophisticated [i.e., defendant Sophisticated Affairs, Ltd.1 entered into a sublease in writing for the first floor with second floor storage of 144 Jackson Avenue, Syosset, NY[,I with the landlord's [i.e., D&M Auto Parts Corp.] consent." (Plaintiff's Exhibit 7). The sublease expressly provided that: "The premises may be used for operation of a 'curves for women' 30 minute fitness and weight loss center franchise onlv." The plaintiff's complaint asserts four causes of action. The first cause of action (breach of sublease) alleges that "Defendants breached the sublease herein in that it did not provide to Claire's the premises sublet to it, as set forth in said sub-lease." The second cause of action (constructive eviction) alleges that "the wrongful acts of Defendants substantially and materially deprived Claire's of the beneficial use and enjoyment of the subject premises." The third cause of action (declaratory judgment) alleges that "Claire's seeks a judicial declaration of its rights and the obligations owed to it by the Defendants." The fourth and last cause of action (punitive damages) alleges that "in consequence of the intentional, malicious and fraudulent conduct of Elardo and Albert [i.e., defendants Michael Elardo and Allison Albert], 2

3 Claire's is entitled to a finding of the court that said Defendants committed acts that constituted a public wrongdoing." The plaintiff moves for summary judgment on its breach of sublease cause of action on the grounds that "Defendants' failure or inability to perform under the contract by permitting Plaintiff's use of the subject property as a gym was a 'material' breach of the contract and therefore entitles Plaintiff to recover breach of contract damages." The plaintiff moves for summary judgment on its constructive eviction cause of action on the grounds that: "Defendants' failure to procure a CO [i.e., certificate of occupancy] rendered the operation of Plaintiff's intended business 'illegal' and frustrated the intended purpose of or invalidated the entire agreement. [and that] Plaintiff was therefore compelled to relocate to new and 'legal' premises to salvage its business." These branches of the plaintiff's motion are denied. Inasmuch a fitness and building (see initio and no as the only use permitted under the sublease (i.e., weight loss center) was prohibited in a C-2 type 9 NYCRR et seq.), the sublease was void ab action may be maintained for its breach. (See 74 NY Jur2d, Landlord and Tenant, 49; Bvrnes v Balcom, 265 AD 268, 271, aff'd 290 NY 730; H. B. Shontz Co. v Laffav, 225 AD 263, 265; Doherty v Eckstein, 198 AD 708, ). For the same reason, the plaintiff does not have a cause of action for constructive eviction. for an illegal purpose. The Court will not recognize a tenancy 3

4 The plaintiff-moves pursuant to CPLR 3211(b) to dismiss the defendants' six (6) affirmative defenses, inter alia, on the grounds that "the same are meritless." This branch of the plaintiff's motion is granted. 'Defenses which merely plead conclusions of law without supporting facts are insufficient and should be stricken." (Petracca v Petracca, _ AD2d _, ; Glenesk v Guidance Realtv Corp., 36 AD2d 852, 853). NYS2d Finally, the plaintiff moves for summary judgment against the defendants on their counterclaim based upon the doctrine of res judicata. Counsel for the plaintiff states that 'Defendants commenced a prior action (involving the same subject matter and identical parties) in the Commercial Small Claims part of the District Court of Nassau County, Fourth District, to recover money damages against Plaintiff, resulting in an adverse judgment 'on the merits' against said Defendants [Plaintiff's Exhibit 51.' Counsel contends that: "As such, Defendants are now barred from relitigating the same substantive cause of action in this Court under the principles of res judicata'." plaintiff's motion is denied. This branch of the The defendants' counterclaim alleges that: "Due to the carelessness, acts, omissions, negligence and or bre[alches of duty and or warranty or contract of the Plaintiff, the Defendant has suffered damages in the amount of $129,986.00, together with the costs of this action plus interest.' Since no facts are alleged in this counterclaim, the Court is unable to tell whether the damages being sought include the two rent checks on which 4

5 payment was stopped, which were the subject of the Small-Claims Action. The Court does note, however, that a judgment obtained in Small Claims Court "may be pleaded as res judicata only as to the amount involved in the particular action and shall not otherwise be deemed an adjudication of any fact at issue or found therein in any other action or court." (Uniform Justice Court Act 1808). Therefore, defendant's counterclaim remains viable regarding those issues and amounts not previously adjudicated in the District Court action. Insofar as counsel for the defendants requests that the deposition of Lawrence M. Gordon, Esq. "take place as soon as is practical and that he be ordered to recuse himself from continuing his representation," these requests are denied. The Court will only entertain such relief upon formal motion on notice (i.e., notice of motion) to the adversary. Accordingly, plaintiff's first and second causes of action are dismissed and plaintiff's third and fourth causes of action remain. No motion has been made by either party concerning these two causes of action. defenses are dismissed. The defendants' six (6) affirmative Dated: September 15, 2003