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Fives 160th, LLC v. Qing Zhao

Supreme Court, Appellate Division, First Department
Apr 7, 2022
No. 2022-02339 (N.Y. App. Div. Apr. 7, 2022)

Opinion

2022-02339 Index 155927/20

04-07-2022

Fives 160th, LLC, Plaintiff-Respondent, v. Qing Zhao et al., Defendants-Appellants, ABC Corp., et al., Defendants. Appeal No. 15685 Case No. 2021-03035

Balance Law Firm, New York (Beixiao (Robert) Liu of counsel), for appellants. Rose & Rose, New York (Dean Dreiblatt of counsel), for respondent.


Balance Law Firm, New York (Beixiao (Robert) Liu of counsel), for appellants.

Rose & Rose, New York (Dean Dreiblatt of counsel), for respondent.

Before: Manzanet-Daniels, J.P., Kern, Gesmer, Oing, Rodriguez, JJ.

Order, Supreme Court, New York County (Shawn Timothy Kelly, J.), entered April 7, 2021, which, to the extent appealed from as limited by the briefs, denied defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

The complaint states a cause of action for unpaid rent and additional rent due. Plaintiffs sufficiently allege that defendants did not pay rent from March 2020 through the end of the lease term, and that defendants owed $35, 803.39 through July 31, 2020, the date plaintiffs commenced this action (see Siegmund Strauss, Inc. v East 149th Realty Corp., 104 A.D.3d 401, 403 [1st Dept 2013]). Defendants' motion fails to dispute plaintiff's allegations regarding the rent.

As to defendants' assertions that they should be excused from performance under the contract because of the COVID-19 pandemic, we have already determined that the pandemic cannot serve to excuse a party's lease obligations on the grounds of frustration of purpose or impossibility (see 558 Seventh Ave. Corp. v Times Square Photo Inc., 194 A.D.3d 561, 562 [1st Dept 2021], appeal dismissed 37 N.Y.3d 1040 [2021]). Although the pandemic did make it more difficult and less profitable for defendants to run their business, they were never prevented from using the space or operating their restaurant (see Center for Specialty Care, Inc. v CSC Acquisition I, LLC, 185 A.D.3d 34, 42-43 [1st Dept 2020]). Nor did the lease contain a force majeure clause, and this Court may not add or imply such a clause (see Morlee Sales Corp. v Manufacturers Trust Co., 9 N.Y.2d 16, 19 [1961]; Riverside S. Planning Corp. v CRP/Extell Riverside, L.P., 60 A.D.3d 61, 66 [1st Dept 2008], affd 13 N.Y.3d 398 [2009]).

Furthermore, plaintiff demonstrated that it properly effected service on defendants in accordance with CPLR 308 at their usual place of business. Affidavits submitted by plaintiff demonstrated that defendants effectively held out the address of the premises as their business address by keeping the signage for their restaurant there (see Gibson, Dunn & Crutcher v Global Nuclear Servs. & Supply, 280 A.D.2d 360, 361 [1st Dept 2001]). Moreover, defendant Xiang Ling averred that he did not mail the keys to the premises to plaintiff until August 18, 2020, after plaintiff had already commenced the action (cf. LaSorsa v Corrigan, 256 A.D.2d 313, 313 [2d Dept 1998]).


Summaries of

Fives 160th, LLC v. Qing Zhao

Supreme Court, Appellate Division, First Department
Apr 7, 2022
No. 2022-02339 (N.Y. App. Div. Apr. 7, 2022)
Case details for

Fives 160th, LLC v. Qing Zhao

Case Details

Full title:Fives 160th, LLC, Plaintiff-Respondent, v. Qing Zhao et al.…

Court:Supreme Court, Appellate Division, First Department

Date published: Apr 7, 2022

Citations

No. 2022-02339 (N.Y. App. Div. Apr. 7, 2022)