### Comfort Living Furniture Inc. v McDonald Design FurnitureInc. 2024 NY Slip Op 30905(U) March 19, 2024 Supreme Court, Kings County Docket Number: Index No. 504641/2018 Judge: LeonRuchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op30001(U), are republished from various New York State and local governmentsources, including the New

York State Unified Court System's eCourtsService. This opinion is uncorrected and not selected for official publication.

### FILED: KINGS COUNTY CLERK 03/19/2024 04:24 PM INDEX NO. 504641/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/19/2024

1 of 4 SUPREME 

### COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL

### TERM: COMMERCIAL 

### 8
----.- ..--- .. -------- :-.--.-.----------- .-.. -x COMFORT LIVING FURNITURE INC., Plaintiff,

- against
- 

### MCDONALD DESIGN FTJRNTTURE INC. and 

### 1571 HOLDING LLC, Defendant,

·---- - -·-- - - - - - - - ---- --- - - - - - - - - ------.-.-- - - ·X 1571 HOLDING LLC, Decision and order Index No. 504641/2018
March 19, 

### 2024

. . Third-Party Plaintiff,-againstRYBAK DEVELOPMENT 

### AND CONSTRUCTION CORP,, Third-Party Defendant,



### -------------- ------ ----- -- - -- --- -x 

### PRESENT: HON. 

### LEON RUCHELSMAN Motion Seq; #8 The defendant/thirdparty plaintiff 1571 Holdings LLC has movedpursuant to CPLR §3212 seeking summary judgement dismissing the first cause of action of the amended complaint andto strike the jury demand. The plaintiff has opposed the motion. Papers were subrnitted by the parties and arguments held. A.ft

### er reviewing all the arguments this ·court now makes the following determination. Background As recorded in prior orders in July

### 2001, MatthewFerrigno 

### and Victo:i:-ia Fer:rigno leased their

### propert.y located at 1571 McDonald

### Avenue~ Brooklyn, NY to the defendant

## McDona:idDesign Furniture 

### fbr 

### a duration: of 

### 100

### years. Located on

### this property was 

### a building 

### ("the S.tore") and .an 

### adjacent. large 

### open area 

### ("lot"). In September 2011, defendant subleasedthe 

### first floor



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### FILED: KINGS COUNTY CLERK 03/19/2024 04:24 PM INDEX NO. 504641/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/19/2024

2 of 4 of the store to Comfort Living Furniture for a duration of 10 years. Subsequently, inOctober

### 2012, defendant subleased the basement of the store to the plaintiff for a duration o·f 9 ye.3.rs. .Prior to the defen.dant commencing excavating t.he lot, the def'endant created a holding company called 

### 1571 Holding LLC:. In January 

### 2018, a permit to excavate property was issued to 1571 Holding LLC. After:excavation work commenced, plaintiff claims that due to negligence onbehalf of the construction crew, the store experienced severe flooding which destroyed a significant portion of plaintiff's inventory, forced the plaintiff to close the store for a period of time, and forced the.plaintiff to experid a significant amount of time andmori:ey in order to clean up the flooded area and

### to replace the destroyed merchandise. A lawsuit was commenced seeking damages for those losses sustained. The plaintiff has alleged two causes of action, namely breach of contract and negligence. The defendant 

### 1571 H9ldihg 

### LLC has now moved seeking surhrhary judgement regardin9 the breach of contract cause of action. The defendant argues that the breach of contract cause of action is based upon language in the lease that covenants peaceful and quiet enjoyment of the property

### upon the 

### properpaymentof rent. The. defendant further 

### .argues that 

### cause of action 

### requites the. tenant 

### to demonstrate an 

### eviction .of the 

### premises which.never 

### occurred. 

### Furtherrno:r::.e, the defenp.ant 

### asserts the plaintiff

### did not: 

### pay rent arid theref.ore the 

### 2



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### FILED: KINGS COUNTY CLERK 03/19/2024 04:24 PM INDEX NO. 504641/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/19/2024

3 of 4 conciition precedent triggering the covenant of quiet enjoyment never occurred. As noted the motion is opposed.
Conclusions .of Law Where the material facts at issue in a case a.te in dispute summary judgment cannot be granted (Zuckerman v. City of New York, 

### 49 NYS2d 

### 557, 427 NYS2d 

### 595 [1980]). Generally, it 

### is for the jury, the trier of fact to determine the legal cause of any injury (Aronson v. Horace Mann-Barnard School, 224 AD2d 249, 637 NYS2d 410 [Fi:. Dept., 1996]). However, where only onE) conclusion may be drawn from the facts then the question of legal causemay be decidedby the trial court as a matter b'f law (Derdiarian v.FelixContracting Inc., 

### 51NY2d 308, 434 NYS2d 166 [1980]). The covenant of quiet enjoyment only applies if all conditions precedenthave been satisfied and there has been

### no waiverqf tho.se conditions (TDS Leasing LLC 

### v. Tradito, 148 AD3d 1079, 51 NYS3d 96 [2d Dept., 2017]). In Dance Magic Inc.• v. Pike Realty Inc.., 85AD3d 1083; 926.AD2d 5.88 [2d Dept., 2011]) a tenant sought a claim for a breach of the covenant of quiet enjoyment following flooding in 

### the premises. The court explained that "by the express terms of the lease, the plaintiffs were required to

### pay rent wl:1.ile remaining in possessi.on of the subject pr.emises as a condition precedent to receiving 

### the benefit of quiet enjoyment of·the premises... The plaintiffs paid
3



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### FILED: KINGS COUNTY CLERK 03/19/2024 04:24 PM INDEX NO. 504641/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 03/19/2024

4 of 4 r1;;,nt 

### for thesubject

### premises throughNovember 2007, 

### but they failed to pay rent while retaining possession of the subject premises for

### a portion of December 

### 2007. Since they remained in possession of the sμl:J,ject premises while not paying, rent, the plaintiffs failed to satisfy the conditi.on precedent in their lease, and are thereby precluded from claiming a breach of the covenant of 

### quiet enjoyment11 

### (id}. Indeed, the failure to pay rent can only be deemed an election of remedies and consequently has no claim for a breach of the covenant of quiet enjoyment (Schwartz v. Hotel Carlyle Owner's Corp., 132 AD3d 

### 541, 20 NYS3d 

### 341 [1st Dept.i 2015]) . The plaintiff argues that they only Stoppedpaying rent when the flooding occurredand they were partially evictedthe.i::eby. However, that excuse does not permit the tenant tonot payrent and still pursue claims of the breach o:E quiet enjoyment (see, 1590 Lexington LLC 

### v. 

### 1590 Corp., 53 Misc3d 155(A)i 

### 50 NYS3d 

### 27 [Supreme Court, Appellate Term2016]), Therefore, sin.ce the tenant chose not to pay rent the tenant cannot pursue a. claim for quiet enjoyment, Therefore, themotion seeking to dismis-s this claim is granted. 

### So ordered.



### DAT.ED: March 19, 2024 Brooklyn N.Y. ENT.ER:

Hein. Leon Ru 

### JSC 

### 4



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