Opinion
0901653/05.
Decided January 6, 2006.
BACKGROUND
Petitioner Bay Plaza Community Center, LLC, the owner of the premises located at 2120 Bartow Avenue in Bronx County, leased Space 120 to respondent Champion Chicken of Bay Plaza, Inc. by written agreement effective June 3, 1994. The twelve year lease at § 1.1(l) permits the premises to be used for the preparation and sale of rotisserie chickens and other poultry, related side dishes and beverages and the incidental sale of sandwiches, desserts and ice cream.
The respondent installed a fire suppression system for two cooking hoods in its kitchen when it entered into possession of the premises. Although permits were obtained in 1994 and 1996, the respondent never obtained final NYC Department of Buildings ("DOB") approval for the system. By letter dated December 29, 1994, Mitchell G. Attick, the respondent's architect, asked DOB to issue Letters of Completion for DOB Job Number 200246242.
DOB approval in this context is known as a "sign-off."
The above captioned projects for which I am the Architect of Record, havs (sic) been completed pursuant to the plans as filed under the above referenced DOB Job Number. All construction conforms to the NYC Building Code. Enclosed you will find three TR-1 forms for Completed Inspection signed and sealed by the Architect.
Please issue both Letters of Completion for this project. I thank you for your attention to this matter.
Neither the Letters of Completion nor any DOB correspondence or objections are attached in opposition to the petitioner's motion.
By letter dated April 5, 2005, Bay Plaza informed the respondent that three work permits remained outstanding. The petitioner requested proof that Champion Chicken completed the work referenced in the permits and obtained the requisite DOB sign-offs. By letter dated April 28, 2005, Michael Turner, the respondent's lease guarantor, informed the petitioner that Champion Chicken was actively seeking the necessary DOB approvals.
This letter is to inform you that at the present time I am in the process of resolving the issues necessary to obtain the sign-offs on the building permits that remain open in the NYC Department of Buildings.
I have retained the services of a licensed plumber, Lava Mechanical Contractors, Inc, and an expediter, Liza Brito and hope to have this matter resolved in the near future. I will continue to keep you informed and thank you for your patience in this matter.
After fruitlessly waiting several months for the approvals, the petitioner by notice of default dated August 4, 2005 informed the respondent that it had breached substantial obligations under its lease. The respondent was thereafter served with a notice of termination and afforded a thirty day cure period that ended on September 13, 2005. Thirteen days later, the petitioner terminated the respondent's lease effective September 26, 2005. The underlying holdover proceeding was thereafter commenced.
Michael Turner, the president of the respondent corporation, alleges in his affidavit that the petitioner is engaging in selective enforcement because there are "many open permits" on the property. According to Mr. Turner, the work needed to obtain DOB and Fire Department sign-offs for the Champion Chicken permits "could not have been reasonably expected to be cured within 30 days." The respondent attaches correspondence from its architect and documents that establish that the fire suppression system was regularly inspected by Lund Fire Products Company. Although approximately nine months have passed since the respondent's April 28, 2005 letter promising to "resolve the matter" in the near future, no DOB approval was obtained for the fire suppression system installed eleven years ago in 1994.
DISCUSSION
Summary judgment is a drastic remedy that should not be granted where triable issues of fact are raised. ( Brown v. Achy, 9 AD3d 30 [1st Dept 2004].) The proponent of a motion for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to show the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." ( JMD Holding Corp v. Congress Financial Corporation, 4 NY3d 373, quoting Alvarez v. Prospect Hospital, 68 NY2d 320.) In deciding a motion for summary judgment, the Court must view evidence in a light most favorable to the plaintiff. ( Ferrer v. Riverbay Corp., 214 AD2d 312 [1st Dept 1995].) Here, the petitioner-movant must establish that the respondent breached a substantial obligation of its tenancy. The burden thereafter shifts to the respondent to demonstrate the existence of a triable issue of fact. ( Seminara v. Grossman, 253 AD2d 420 [2nd Dept 1998].)
The Lease
A lease is a contract to be enforced in accordance with the expressed intention of the parties to the lease. ( Wallace v. 600 Partners Co., 86 NY2d 543.) The intent of the parties is determined by the language they employ. (1 Dolan, Rasch's Landlord and Tenant — Summary Proceedings § 6:1, at 269-270 [4th ed].) Where the language is clear and unambiguous, the interpretation of an unambiguous contract provision is an issue of law to be determined by the Court. ( Chimart Associates v. Paul, 66 NY2d 570; 1009 Second Ave. Associates v. NYC Off-Track Betting Corp., 248 AD2d 106 [1st Dept 1998], lv to appeal dismissed, 92 NY2d 947.) Clear complete writings should generally be enforced according to their terms to impart stability to commercial transactions. This rule has "even greater force in the context of real property transactions" where commercial certainty is a paramount concern and where, as here, the instrument was negotiated between businesspeople negotiating at arm's length. ( Wallace v. 600 Partners Co., 86 NY2d at 548.)
According to the lease attached as Exhibit B to the petitioner's moving papers, respondent Champion Chicken is responsible for all fire protection work in the premises. (Lease Exhibit B at § I.M.) Its obligations pursuant to the lease must be performed in conformity with all legal and insurance requirements. (Lease at § 9.1[a].) The lease states at § 9.1(e) that the respondent shall keep all utility facilities, plumbing, electrical and mechanical installations, equipment and facilities at the premises in a "good safe working order, repair and condition." All construction work must be completed at the respondent's sole expense in conformance with law. The lease unequivocally states at Lease Exhibit B § I.E that all construction at the premises must be performed in compliance with all applicable laws and codes:
The lease has its own exhibits which contain additional provisions.
Construction shall comply with applicable statutes, ordinances, regulations, laws and codes of the governing authorities and/or agencies, including requirements of the State Fire Marshall and the New York Board of Fire Underwriters' requirements for fire insurance.
The installation of fire suppression systems is extensively regulated in New York City and New York State. ( See Administrative Code of City of NY §§ 26-141-153.1, 27-180, 27-182, 27-228.9; 9 NYCRR § 5.103; 9 NYCRR § 300-2.12; 18 NYCRR § 418-2.4.) The respondent proffers proof that its fire suppression system is regularly inspected by Lund Fire Products Company to establish that it has substantially complied with its lease obligations. Equipment maintenance, while essential, is no substitute for DOB approval of the respondent's fire suppression system.
Dispute Resolution
The respondent references Section 4.3 of the lease for the proposition that the "dispute" between the parties should be resolved by a committee of architects consisting of a project manager, an architect designated by the respondent and, if necessary, a third architect selected by agreement of the project manager and respondent's architect. The Court declines to dismiss the proceeding on the ground that compliance with the Building Code is non-negotiable.
Use and Occupancy
The respondent in its cross-motion seeks a refund of its October 2005 rent. The payment was initially rejected by the petitioner but subsequently accepted pursuant to a stipulation dated October 24, 2005. Given the fact that the respondent remains in occupancy of the premises, the petitioner is entitled to keep the October payment as use and occupancy.
CONCLUSION
After carefully viewing the evidence in a light most favorable to the plaintiff ( Ferrer v. Riverbay Corporation, 214 AD2d 312 [1st Dept 1995]), this Court determines that the petitioner met its burden of proof by a preponderance of the credible evidence. There are no material issues of triable fact. Although more than eleven years have passed since the respondent's installation of the fire suppression system at the premises, no DOB final approvals were obtained. No cure was effected within the requisite 30 day notice period afforded to the respondent and no cure has been effected to date. No Yellowstone injunction is in effect.
The respondent's attempt to refer this matter to a committee of architects pursuant to Section 4.3 of the Lease is unavailing to the extent that compliance with the Building Code is non-negotiable. The motion for summary judgment is granted and the petitioner is awarded a final judgment of possession on the ground that the respondent violated a substantial obligation of its tenancy. The respondent's cross-motion is denied and its affirmative defenses are dismissed. The warrant of eviction shall issue forthwith. Execution of the warrant is stayed 10 days.
This constitutes the Decision and Judgment of this Court.