Bao Fusion Food, Inc. v. West 38th Street Holdings, LLC and Am Property Holding Ii Corp.,

(Supreme Court, New York County, December 19, 2013)

We represented: Plaintiff

Hon. Eileen A. Rakower, J.S.C.

DECISION and ORDER

This action concerns the building located at 36 West 38th Street, N.Y., N.Y. (the “Premises”), including the portion of the Building consisting of the entire ground floor space and certain basement space (hereinafter, the “Premises”). Plaintiff Bao Fusion Food, Inc. (“Plaintiff’) occupied the Premises pursuant to a lease dated August 1, 2011 entered between Plaintiff, as tenant, and Wassfam LLC, 34-36 West 38th Street LLC, and JGCB LLC c/o Newmark Knight Frank, as prior owners (“Prior Owners”). Defendant West 38th Street Holdings, LLC (“West 38th”) purchased the building from Prior Owners on or about August 10,2010, and Plaintiff took possession of the Premises pursuant to the Lease on April 16, 2012 after allegedly investing substantial funds to renovate the Premises for use as a restaurant.

In September 2012, Plaintiff commenced this litigation. Plaintiff claims that in early August 2012, Defendants willfully and intentionally created a sidewalk shed and specifically, an opaque black screen, across Plaintiffs restaurant space for the purpose of impeding Plaintiffs ability to open its restaurant, pressuring Plaintiff to accept a buyout offer of Plaintiffs lease, and causing resulting damages. Plaintiffs’ causes of action are as follows: harassment of tenant in violation of Real Property Law 235-d, partial actual eviction, constructive eviction, breach of contract- quiet enjoyment, breach of contract-good faith and fair dealing, forcible ejectment, temporary, preliminary, and permanent injunction.

From October 10 through October 12, 2012, the parties held a hearing, which resulted in an order directing Defendants to remove the screen from the sidewalk shed at the Premises.

Defendants now move for an order pursuant to CPLR §3212 granting defendants West 38th Street Holdings LLC and AM Property Holding II Corp. summary judgment dismissing the First Amended Verified Complaint.

Plaintiff opposes on the basis that issues of fact exist and discovery remains outstanding.

Plaintiff states that Defendants, to date, have not produced any documents in this litigation or responded to duly served interrogatories. Plaintiff states that it specifically seeks factual material that is solely in Defendants’ possession which would be necessary to oppose this motion, including Defendants’ internal email or other correspondence concerning efforts to convince Plaintiff to accept a buyout due to safety concerns regarding the facade of the Premises, Defendants’ email or other correspondence with Elie Geiger or agents of Geiger Engineering concerning the condition of the facade of the Premises and the decision to put up the sidewalk shed and screen; and any documents generated by Geiger Engineering in its possession. Plaintiff also states that it intends to take the depositions of Elie Geiger, Nathan Wasserman, and Paul Wasserman concerning the circumstances surrounding the erection of sidewalk shed and black screen.

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement. (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255 [1970]). (Edison Stone Corp. v. 42nd Street Development Corp., 145 A.D .2d 249, 251-25 2 [1st Dept. 1989]).

CPLR §3212(f) provides that, “[s]hould it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just.”

Discovery remains outstanding, making the motion premature. Defendants’ motion is denied.

Wherefore, it is hereby,

ORDERED that Defendants’ motion for summary judgment is denied.

This constitutes the decision and order of the court. All other relief requested is denied.

Dated: December 17, 2013
Eileen A. Rakower, J.S.C.