Simon & Son Upholstery, Inc. v. 601 West Associates
(Sup. Ct. N.Y. Cty. 10/15/01)
We represented: Plaintiff
Barbara R. Kapnick, J.
DECISION and ORDER Plaintiffs Simon and Son Upholstery, Inc. ("Simon") and Studio 601, Inc. move for an order: (1) pursuant to CPLR ? 3212(e) granting them partial summary judgment on the issue of liability and directing an immediate hearing on damages on their first cause of action for declaratory relief, second cause of action for injunctive relief, sixth cause of action for partial actual eviction, seventh cause of action for constructive eviction and eighth and ninth causes of action for breach of contract; (2) granting them partial summary judgment in the amount of $127,607.45 on their sixth cause of action alleging actual eviction; (3) pursuant to CPLR ? 3103 dismissing defendants' first through fifth affirmative defenses on the ground that they are vague and conclusory; and (4) awarding costs, disbursements and attorneys' fees.1
By decision dated January 25, 2000, the Appellate Division, First Department, granted plaintiffs' motion for a preliminary injunction to the extent of directing the landlord, defendant 601 West Associates, LLC, to provide elevator service to plaintiff after normal business hours for upholstery and photographic work only. The court specifically found that "the prior landlord had consented to the use of part of the premises for a photography studio, and the record indicates that the new landlord, 601 West Associates, was aware of the ensuing partial conversion. See, Simon & Son Upholstery, Inc. et al.v. 601 West Assocs., LLC, et al., 268 A.D.2d 359, 360 (1st Dep't 2000).2
Generally, "the granting of a temporary injunction serves only to hold the matter in status quo until opportunity is afforded to decide upon the merits. The granting or refusal of a temporary injunction does not constitute the law of the case or an adjudication on the merits, and the issues must be tried to the same extent as though no temporary injunction had been applied for." J.A. Preston Corp. v. Fabrication Enterprises, Inc., 68 N.Y.2d 397, 402 (1986), quoting Walker Mem. Baptist Church v. Saunders, 285 N.Y. 462, 474 (1941). See also, Peterson v. Corbin, 275 A.D.2d 35 (2nd Dep't 2000).
Here, however, the Appellate Division made specific findings of fact – i.e., that the previous landlord consented to the use of part of the demised premises for a photography studio, and that the current landlord was aware of the ensuing partial conversion – which are binding on this Court.3
Moreover, even had the Appellate Division not made these factual findings, "the granting . . . of a temporary injunction . . . [will], in the interest of orderly procedure, be regarded as controlling upon the trial, unless the evidence presented thereon differs in any material respect from that presented on the motion." 28 N.Y. Jur. 2d, Courts and Judges, ? 261.
The only evidence submitted in opposition to the instant motion for summary judgment which was not part of the record considered by the Appellate Division is an affidavit from Harold Broyde, the current building manager of the Building.
Mr. Broyde's affidavit does not suffice to raise an issue of triable fact as to whether defendants have denied after-hours elevator service for upholstery and photography work because it does not unequivocally state that defendants have not withheld such service. Rather, Mr. Broyde evades that issue, stating that elevator service has only been denied, inter alia, when prior consent was not properly sought or when plaintiffs sought to use the premises "for a purpose which was not permitted under the lease, such as (x) social functions, or (y) commercial photo shoots by entities other than plaintiffs." (Emphasis added.)
Consequently, plaintiffs are entitled to limited declaratory and injunctive relief requiring defendants to provide after-hours elevator service to plaintiffs for upholstery and photographic work pursuant to the terms contained in the rules promulgated by the prior landlord.
However, those branches of plaintiffs' motion that seek summary judgment on the issue of liability on the sixth, seventh, eighth and ninth causes of action are denied, as this Court cannot determine based on the papers submitted, how often, if at all, plaintiffs have been denied elevator service for upholstery or photography work, rather than for use of the premises for parties, receptions and other events.
Defendants have withdrawn their second affirmative defense alleging lack of personal jurisdiction. That branch of plaintiffs' motion seeking to dismiss defendants' remaining affirmative defenses is moot since defendants have filed an amended answer which supersedes the original answer. See, Chalasani v. Neuman, 64 N.Y.2d 879 (1985) ; Halmar Distributors, Inc. v. Approved Mfg. Corp., 49 A.D.2d 841 (1st Dep't 1975).
Accordingly, based on the papers submitted and the oral argument held on the record on June 13, 2001, plaintiffs' motion is granted only to the extent of declaring that defendant 601 West Associates LLC is required to provide after-hours passenger and freight elevator service to plaintiffs in conformance with the Supplemental Rules and Regulations Pursuant to Lease Article 36 (regarding advanced notice of the need for, and payment for the use of, such service) for plaintiffs' use of the premises for upholstery and photographic work only.
All parties are directed to appear for a status conference in IA Part 12, 80 Centre Street, Room 308 on November 7, 2001 at 9:30 a.m. in order to coordinate all outstanding discovery.
This constitutes the decision and order of this Court.
FOOTNOTES
1Plaintiffs request that their remaining causes of action (i.e., the third and fourth causes of action for tortious interference with contractual and business relations, respectively, the fifth cause of action based on an alleged violation of the Donnelly Act, the tenth cause of action for forcible ejectment, and plaintiffs, request for punitive damages) be severed and reserved for trial.
2The Appellate Division also affirmed that portion of the IAS court's order granting plaintiffs leave to file an amended complaint.
3The Appellate Division also found the record barren as to any evidence that consent to use the premises as a de facto catering hall for private parties, including weddings, was ever given by the prior landlord, and thus that 601 West Associates was within its rights to refuse consent for such use.