Comfort Living Furniture Inc. v McDonald Design

Furniture Inc.

2024 NY Slip Op 30905(U)

March 19, 2024

Supreme Court, Kings County

Docket Number: Index No. 504641/2018

Judge: Leon Ruchelsman

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

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

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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/third party plaintiff 1571 Holdings LLC has 

moved pursuant to CPLR §3212 seeking summary judgement dismissing 

the first cause of action of the amended complaint and to strike 

the jury demand. The plaintiff has opposed the motion. Papers 

were subrni tted 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, Matthew Ferrigno 

and Victo:i:-ia Fer:rigno leased their propert.y located at 1571 

McDonald Avenue~ Brooklyn, NY to the defendant McDona:id Design 

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 subleased the first floor 

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of the store to Comfort Living Furniture for a duration of 10 

years. Subsequently, in October 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 on behalf 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 

proper payment of 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 

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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 cause may 

be decided by the trial court as a matter b'f law (Derdiarian 

v. Felix Contracting Inc., 51 NY2d 308, 434 NYS2d 166 [ 1980]) . 

The covenant of quiet enjoyment only applies if all 

conditions precedent have been satisfied and there has been no 

waiver qf 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 .. , 85 AD3d 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 

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r1;;,nt for the subject premises through November 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 enjoyment 11 (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 

Stopped paying rent when the flooding occurred and they were 

partially evicted the.i::eby. However, that excuse does not permit 

the tenant to not pay rent 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 Term 2016]), 

Therefore, sin.ce the tenant chose not to pay rent the tenant 

cannot pursue a. claim for quiet enjoyment, 

Therefore, the motion seeking to dismis-s this claim is 

granted. 

So ordered. 

DAT.ED: March 19, 2024 

Brooklyn N.Y. 

ENT.ER: 

Hein. Leon Ru 

JSC 

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