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712807/2016
NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 05/16/2019
Supreme
Court of the State of New York
of Queens
County
NOTICE
712807/2016
hereby appeals to the Appellate Division of the Supreme Court of the State of Ne
Supreme Queens
Court,
May 3, 2019
May 16 , 2019
Yours, etc.,
(Print Name)
(Address)
xc-
t
ARa
(Telephone Number)
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NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 05/16/2019
Paper Appealed From (Check one only): If an appeal has been taken from more than one order or
judgment by the filing of this notice of appeal, please
indicate the below information for each such order or
judgment appealed from on a separate sheet of paper.
O Ameñded Decree O Determination O Order O Resettled Order
O Amended Judgement O Finding O Order & Judgment O Ruling
O Amended Order O Interlocutory Decree O Partial Decree O Other (specify):
E Decision O Interlocutory Judgment O Resettled Decree
O Decree O Judgment O Resettled Judgment
Are any appeals arising in the same action or proceeding currently pending in the court? O Yes R No
If Yes, please set forth the Appellate Division Case Nüraber assigned to each such appeal.
Where apprepriate, indicate whether there is any related action or proceeding now in any court of this or any other
Commêñced by: O Order to Show Cause O Notice of Petition O Writ of Habeas Corpus Date Filed:
Statute autherizing commcacement of proceeding in the Appellate Division:
Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief
requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred
pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the
nature of the ex parte order to be reviewed.
Defendantappealsfrom eachand every part of the order/decisionof Leonard Livote, dated May 3, 2019, which grantedPlaintiff summaryjudgmenton causesof action1 and 3.
' The Plaintiff seeked,inter
alia, a declaratroyjudgment from the court that the Defendantis violating the use provisionsof the lease betweenthe parties by rentingblocksof roomsto
DHS or other agenicesthat work for DHS. This is an appealfrom a decisionrenderedby judge LeonardUvotefrom whereby the court ordered,adjudgedand decreedthat the
defendant'srentingof roomsat the property located at 59-40-55thRoad, Maspeth,NewYork to DHS or another agency of NewYork City to househomelesspersonsconstitutesa
materialdeparturefrom the use provisions(Artice5 and Section 35.8) of the lease and a breachof use provisions. Defendantwouldfurther appeal the order anddecreeallowingthe
Plaintiffto exerciseits remediesunderthe lease and for a decisionthat their is liability undertheir cause of actionfor costs/attorneyfees.
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Is,sugs: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds
for reversal, or modification to be advanced and the specific relief sought on appeal.
Was the decision/order of Judge Leonard Livote dated May 3, 2019 properly made.
Court errored in holding that Defendant did not meet its burden.
Court errored in holding that Plaintiff met its burden and shited the burden to Defendant.
Court errored in hc|ding that Defendant's use of the premises is in violation of the use restrictions of the lease.
Court errored in holding that Town of Brookhaven vs. Marian Chus supports the claims of the Plaintiff.
Owners'
Cour,t errored in holding that Chelsea Bus & Prop Ass'n LLC does not control the issues in this case.
Court errored in distinguishing Chelsea behueen the meaning and intent of the use provision in the lease and the meaning
and intent of the Zoning Resolution interpreted by BSA.
Court errored in granting Plaintiff's third cause of action based upon all the other court's errors.
Court errored in finding that Defendant's renting of the roomsto DHS or another agency to house homless persons
constitutes a materia departure from the use provisions of the lease and a breach of the lease.
Court eiTcred in finding that Plaintiff may exercise its remedied under the lease.
Party Information
InstÊüctions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an
appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this
form is to be filed for a proceeding ccinmenced in this court, fill in only the party's name and his, her, or its status in this
court.
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Instructions: Fill in the names of the attorneys or firms for the respective parties. If this form is to be filed with the
, notice of petition or order to show cause by which a special proceeding is to be conn..cu ed in the Appellate Division,
only the name of the attorney for the petiticaer need be provided. In the event that a litigant represents herself or
Se"
himself, the box marked "Pro must be checked and the apprópriate information for that litigant must be supplied
in the spaces provided.
Party or Parties Represented (set forth party ñümber(s) from table above): No. 1 KCM Realty LP
Party or Parties Represented (set forth party number(s) from table above): No. 2 New Ram Realty, LLC
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
.City: State: Zip: Telephone No:
E-mail Address:
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-máil Address:
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Party or Parties Represented (set forth party number(s) from table above):
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NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 05/10/2019
PLEASE TAKE NOTICE that the within is a true copy of an Order and Judgment, dated
May 3, 2019, of the Supreme Court, Queens County, that was entered in the above-entitled action
and filed in the Office of the Clerk of the Supreme Court, Queens County, on May 10, 2019.
Mitchell J. Ge r
(212) 513-3200
(914) 738-5992
Attn: Clifford H. Greene, Esq.
Attorneys for Defendant New Ram Realty, LLC
#67669949_vl
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- against - Motion
Date Januarv 15, 2019
New Ram Realty, LLC,
Defendan t, Motion Seq. No. 5
The following papers EF numbered below read on this motion by plaintiff KCM Realty
Company for summary judgment on its first and third causes of action.
Papers
Numbei-ed
Upon the foregoing papers it is ordered that the motion which is for summary
judgment on the first and third causes of action is granted and judgment is granted
I. The Facts
55*
Plaintiff KCM Realty Company (KCM.) owns property located at 59-40
Road, Maspeth, New York which it rented by lease dated March 5, 2004 to defendant
New Ram Realty, LLC (New Ram). Articlé 5 of the lease provides that "Tenant shall use
the Premises for (i) the erection [and] operation of a hotel which shall not exceed five (5)
stories in height, (ii) retail stores, and (iii) for the parking of vehicles related to the
*** use."
business of the hotel and such stores and for no other Section 35.8 of the Lease
states: "Tenant shall not use the Premises for any use other than to accommodate
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hotel."
transient hotel guests and for retail stores located on the ground floor of the
"
Section 12. l (b) of the lease provides that Tenant and its successors and assigns shall not
directly or indirectly seek to circumvent the requirements of this Article [Article 12]
Owner."
which require Tenant and is successors and assigns to obtain the consent of
Section 14.7 of the lease provides in relevant part: "Tenant shall also pay to Owner all
costs and expenses, including reasonable attorney's fees, paid or incurred by Owner in
***."
enforcing any of the covenants and provisions of this lease
In late August, 2016, New Ram contacted KCM about the former's plan to
sublease the hotel to a third party who would convert the building into a shelter for
homeless adults pursuant to an agreement with the New York City Department of
Homeless Services (DHS). New Ram requested KCM's consent to a Room Rental
Agreement that it proposed to enter into with Promesa Housing Fund Development
Corporation, whereby New Ram would rent I 10 of the I15 rooms in the hotel to
Promesa for the use of homeless persons at an annual rental of $2,400,000 for five years.
KCM responded by a letter dated August 25, 2016 which stated that the
conversion of the hotel into a shelter for homeless adults violated the use restrictions of
the lease and that KCM would not consent to the conversion. However, a few weeks later
DHS booked some rooms at the subject property directly though the Holiday Inn's
reservation system.
provider,"
DHS, a "nonprofit is at the premises to provide services to
homeless adults. These services include the provision of three meals a day, security
provided by three to six guards, and social services provided by about nineteen people
used by Acacia Network, Inc., an affiliate of Promesa. DHS or Acacia rented
approximately 53 rooms with 106 beds to house homeless individuals for the period May,
20 17 to November, 2018. Acacia requested the removal of the beds in four rooms which
it uses for administrative offices. The rooms rented by DHS or Acacia amount to almost
one half of the hotel's 115 rooms. From October 2016 through March 2018, a total of
254 homeless people resided at the hotel, and on average each individual resided there for
195 nights. 100 of the homeless individuals resided at the hotel from 216 days to 537
days. 43 of the homeless individuals resided at the hotel for 365 days or more from
October, 2016 through March, 2018. Pursuant to an amendment dated December 14, 2017
to the agreement between DHS and Acacia, the latter agreed to provide 53 rooms at the
hotel to house homeless persons for the period October 10, 2016 to June, 2020.
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Plaintiff KCM began the instant action by the filing of a summons and a
complaint on October 26, 20 l 6. By an amended complaint dated November 28, 2016, the
plaintiff asserted three causes of action against the defendant. The first is for a judgment
declaring:"that New Ram's renting of 30 rooms at the Premises to DHS or another agency
of New York City to house homeless persons constitutes a material departure from the
use provisions (Article 5 and Section 35.8) of the Lease and a breach of such use
***."
provisions The second cause of action is for a judgment "enjoining New Ram from
provisions***."
violating the Lease's use The third cause of action is for a judgment
"awarding KCM costs, expenses, and reasonable attorney's fees incurred in enforcing the
***."
use provisions of the Lease
III. Discussion
Hospital, 68 NY2d 320, 324 [1986].) Plaintiff KCM successfully carried this burden.
meaning of the word"].) "The words and phrases used in an agreement must be given
their plain meaning so as to define the rights of the parties ***and in this regard, it is
common practice for the courts of this State to refer to the dictionary to determine the
"
plain and meaning of words to a contract (Mazzola v. Cty. ofSuffolk, 143
ordinary
2"d
AD2d 734, 735[ Dept 1988]; Mann v. 125 E. 50th St. Corp., 124 Misc2d 115,
l 17[Civ. Ct. 1984]), aff d, on the opinion below, 126 Misc 2d 1016, [App. Term 1985]
[court resorted to dictionary to determine whether an occupant of a hotel for a long
"transient"
Black's Law (10th ed. 2014) defines as "[a] person or
Dictionary
fleeting."
whose presence is temporary or It defines temporary as: "[1]asting for a
thing
transitory."
time only; or continuing for a limited (usu. short) time; The Merriam
existing
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"transient"
Webster on line Dictionary defines the adjective as: "passing through or by a
sojourn." "transient" "
place with only a brief stay or and the noun as a guest or boarder
briefly."
who stays only The homeless individuals placed into the subject property for
months on end by defendant New Ram do not meet these definitions.
[1988]), supports plaintiff KCM's claims. In that case, the Town of Brookhaven brought
an action to permanently enjoin the defendant from operating Lakeview Lodge Motel as a
lodging, boarding and/or rooming house without having first obtained a proper certificate
of occupancy. In enjoining the the owner of the facility from operating the facility
without a proper certificate of occupancy, the Appellate Division, Second Department,,
stated: "Under the amended ordinance, a motel is defined, inter alia, as a place which
travelers"
provides lodging for "transient (see, Code of Town of Brookhaven § 85-l[B] ).
The facts in this case indicate that persons referred to Lakeview Lodge Motel by the
Suffolk County Department of Social Services may reside there for periods of three to six
months or at times longer, register their children in the local schools, and consider
"transient"
Lakeview Lodge Motel as their home. Such persons cannot be considered
travelers ***A certificate of occupancy appropriate to the use of Lakeview Lodge Motel
as housing for such persons is necessary (see, Code of the Town of Brookhaven §
85-14)" 754-755)."
( Town of Brookhaven v. Marian Chun Enterprises, Inc., supra,
The Brookhaven case relied on Mann v. 125 E. 50th St. Corp. (supra) in
'"Transient" "resident"
which the court stated: has been considered the opposite of (see
The Leontios Teryazos, 45 F Supp 618), and with respect to a hotel, is one who has a
home elsewhere and is staying at the hotel for a short period in connection with a trip
home"
away from (Mann at 1 17).
"
A landlord has a legal right to control the uses to which his building may
enforced."
be put by appropriate lease provisions, which to be effective must be
a
(Qwakazi, Ltd., v. 107 W. 86th St. Owners Corp., 123 AD2d 253, 254[ l Dept 1986];
[1"
Beauty Plus Stores, II, Inc. v. 404 6th Ave. Realty Corp., 70 AD3d 604 Dept 2010]).
"Where the use and occupation of the premises are restricted by express provision to the
purpose therein specified, any material departure from the specified use constitutes a
lease"
violation of the express terms of the (74 N.Y. Jur. 2d Landlord and Tenant § 271;
see, Burber v. Jilamb Prime Meat, Inc., 1 15 Misc2d 976 [Civ. Ct. 1982]).
"use"
Where it is clear that a tenant has violated the clause in his lease.
appropriate"
summary judgment declaring the landlord's rights is (see Qwakazi, Ltd., v.
107 W. 86th St. Owners Corp., supra; Dennis & Jimmy's Food Corp. v. Milton Co., 99
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[2"d
AD2d 477 Dept 1984], affd, 62 NY2d 613[1984].) Under all of the facts and
circumstances of this "an analysis of percentage mix ***
case, including to ascertain
"
whether a departure is material or deminimus (see Burber v. Jilamb Prime Meat, Inc.,
supra, 978), plaintiff KCM has demoñstrated its prima facie right to summary judgment
on its first cause of action. The court again notes that from October 20 I6 through March
2018, a total of 254 homeless people resided at the hotel, and on average each individual
resided there for 195 nights.
The burden on this branch of the motion shifted to defendant New Ram,
requiring it to produce proof that there is an issue of fact which must be tried (see Alvarez
v. Prospect Hospital, supra) or of demonstrating the existence of a defense warranting
the denial of summary judgment. (See Plantamura v. Penske Truck Leasing, Inc., 246
[1"
AD2d 347 Dept 1998]). Defendant New Ram failed to carry this burden. First,
contrary to the assertions made in the defendant's memorandum of law, no issue of fact
arises merely because the lease does not expressly prohibit defendant New Ram "from
time"
licensing rooms to Acacia or DHS to house homeless persons for any period of and
merely because the lease does not expressly prohibit the hotel from being used as a
homeless shelter. Although the lease requires some interpretation, the lease
unambiguously restricts the use of the premises to the operation of a hotel, which a
Owners'
homeless shelter is not. Second, the defendant relies on Chelsea Bus. & Prop.
[1"
Ass'n, LLC v. City of New York (107 AD3d 414, Dept 2013]), an Article 78
sleeping accommodations used primarily for transient occupancy; (2) has a common
entrance to serve the sleeping accommodations; and (3) provides 24-hour desk service,
laundering."
housekeeping, telephone and linen Defendant New Ram's reliance on
Chelsea is misplaced. At best for the defeñdâüt, Chelsea, decided by the Appellate
Division, First Department, conflicts with Town of Brookhaven, decided by the Appellate
Division, Second Department, and, of course, this court is obligated to follow the
decisions of the latter. Moreover, the Chelsea court followed the usual practice in Article
78 proceedings in deferring to interpretations made by administrative agencies, and the
Appellate Division, First Department made little or no analysis of its own concerning the
hotel" occupancy."
terms "transient and "transient Finally, the case at bar is
distinguishable from Chelsea because the meaning and intent of the use clause in the
lease differs from the meaning and intent of the Zoning Resolution as interpreted by
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BSA. The use clause in the lease was clearly intended to restrict the use of the premises to .
the operation of a hotel as that term is traditionally and understood.
commonly
The interest of a landlord in tightly the use of his private differs from
controlling property
the interest of an administrative agency in expanding the use of property for public
purposes.
Ordered, adjudged and decreed that defendant New Ram Realty, LLC's
renting of rooms at property located at 59-40 55thROad, MaSpeth, New York to DHS or
another agency of New York City to house homeless persons constitutes a material
departure from the use provisions (Article 5 and Section 35.8) of the lease and a breach of
such use provisions; and it is further,
Ordered, that the motion for summary judgment on the third cause of action
is granted on the issue of liability.
Dated:
NV 3 a
/S
A. .S.C.
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Plaintiff, AFFIRMATION OF
-against- SERVICE
Clifford H. Greene, an attorney duly admitted to practice law before the courts of
the State of New York, affirms the following statements are true under penalties of perjury:
I am not a party to this action, am over 18 years of age and reside in Westchester,
New York.
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