N0.12679-02 SUPREME COURT - STATE OF NEW YORK IAS TERM

7,2002;Supplemental Affidavit of Neal S. Kaplan sworn to on November 8, 2002,

Plaintiff, Morgan Stanley DW Inc., f/k/a Dean Witter Reynolds Inc. ( “Morgan

1

Dubon sworn to on November

31,2002;Affirmation of William J. Birney, Esq. dated October 31, 2002;Defendant’s Reply Memorandum of Law;Affidavit of Susan Abbracciamento

17,2002;Plaintiffs Memorandum of Law;Affidavit of Neal S. Kaplan sworn to on October

Dubon sworn to on October AftIdavit of Susan Abbracciamento

24,2002;Defendant’s Memorandum of Law;Notice of Cross-motion dated October 17, 2002;

- Suite 408x Garden City, New York 11530

ORDER

The following papers were read on Defendant ’s motion for summary judgmentand Plaintiff’s cross-motion for summary judgment:

Notice of Motion dated September 24, 2002;Affidavit of Neal S. Kaplan sworn to on September

& Birney, LLPDefendant. 100 Garden City Plaza

Calica WOODBURY ASSOCIATES LLC, Rosenberg,

P.O. Box 7775Garden City, New York 11530

COUNSEL FOR DEFENDANT

- Suite 100Markus, LLP229 Seventh Street

&

-

COUNSEL FOR PLAINTIFFSpellman, Walsh, Rice, Schure

- against

O02,003/MOT DX

MORGAN STANLEY DW INC. f/k/aDEAN WITTER REYNOLDS INC.,

Plaintiff,

11-8-02Motion Sequence No.:

B. AUSTINJustice Motion R/D: II-l-02

Submission Date:

IAS TERM PART 23 NASSAU COUNTY

PRESENT:HONORABLE LEONARD

- STATE OF NEW YORKN0.12679-02

SUPREME COURT

INDEX

Woodbury Common and transferred the

employees who had been working there to its Melville office. Although its closed its

operations, it left furniture in the premises asserting it was attempting to attract a

suitable subtenant.

fl I). Until late March,

2002, Morgan Stanley operated its business at the subject premises. However,

Morgan Stanley closed its operations at

Woodbury Associates is the owner

and landlord of these premises

Morgan Stanley is a stock brokerage firm. It occupied the subject premises for

its retail brokerage business and related office purposes (Lease

Woodbury Associates pursuant to the terms of a

written lease agreement dated October 19, 2000.

Woodbury Commons located on Jericho

Turnpike in Woodbury, New York from

pendency of this litigation.

Defendant, Woodbuty Associates LLC ( “Woodbury Associates ”), now moves for

summary judgment dismissing the complaint and setting the matter down for an inquest

on the issue of legal fees. Morgan Stanley cross-moves for summary judgment.

BACKGROUND

Morgan Stanley leased Store 28 at the

[1968]) on August 12, 2002

during the

N.Y.2d 630 v. Yellowstone Shopping Center. Inc., 21

Yellowsfone injunction (First National Stores,

Inc.

Woodbury

Common, Jericho Turnpike, Woodbury, New York.

On consent, this Court granted a

WOODBURY ASSOCIATES LLCIndex No. 12679-02

Stanley”), commenced this action seeking a judgment declaring that it was not in default

under the provisions of a lease for premises located in Store 28 at the

MORGAN STANLEY DW INC. v.

23,2002. It

3

Woodbury Common location between late March, 2002 and July

Woodbury Associates served upon Morgan Stanley another

termination notice. The basis of the termination of the lease was again stated to be the

failure of Morgan Stanley to keep the premises open for business for the “Minimum

Retail Business Hours ” provided in the lease and its permitting the premises to remain

vacant and deserted. Morgan Stanley concedes that it had not operated its business at

the

23,2002,

Woodbury Associates without

prejudice.

On July

Woodbury Associates commenced a Holdover Proceeding in the District

Court, Nassau County seeking a judgment of possession and related relief. The

Holdover Proceeding was subsequently withdrawn by

Woodbury Associates continued to accept, the rent due pursuant

to the lease.

In July, 2002, when it became apparent that a surrender agreement could not be

negotiated,

Woodbury

Associates and Morgan Stanley entered into settlement negotiations in an effort to

negotiate an acceptable surrender agreement. In the interim, Morgan Stanley

continued to pay, and

fl26.01 of the lease inasmuch as Morgan

Stanley had permitted the premises to become vacant and deserted.

After Morgan Stanley had received the default letters, the attorneys for

7 1 of the lease

since Morgan Stanley had failed to remain open for business for “Minimum Retail

Business Hours ” as defined by the lease and

Woodbury Associates advised Morgan Stanley

that it was declaring Morgan Stanley in default under the provisions of

29,2002,


By letter dated March


- Theminimum hours of operation shall be the sameas the hours for the NYSE.

Paragraph 23 provides, in relevant part:

23. Assignment and Subletting 23.01Tenant,***, expressly covenants that it shallnot...nor sublet, nor underlet, or suffer or permitthe Demised Premises or any part thereof tobe used by others, without the prior writtenconsent of Landlord, in each instance.***Uponany such assignment or transfer with the

4

- Any date that the NYSE isopen.

“Minimum Retail Business Hours ”

1 provide definitions as follows:

“Business Day ”

7

1, 23 and 26.01 of the lease.

The relevant provisions of

nq

1,2002”. (So Ordered Stipulation of August 12, 2002)

The dispute between the parties payments involves the interpretation and legal

affect of portions of

*** and until

the determination of the Defendant ’s summary judgment motion scheduled to be heard

on November

Yellowstone injunction was granted “without

prejudice to the extent that the stay shall continue conditioned upon timely payment of

all Minimum Base Rent and Additional Rent due under the parties Lease

Yellowstone injunction. The


further concedes that no employees were assigned to work at this location after late

March, 2002 and that the leasehold was not open for business at any time after late

March, 2002.

Upon receipt of the July 23, 2002 notice, and before a second Holdover

Proceeding could be commenced, Morgan Stanley commenced the within action and

sought a


Woodbury Associates has indicated that it will not permit any

5

7 1 which are labeled “Definitions ” do not impose upon Morgan Stanley

any obligations to keep the premises open and that Morgan Stanley has not permitted

the premises to become vacant and deserted since it continues to have furniture in the

demised premises. In addition, Plaintiff asserts that it has proposed to sub-lease the

property and that

*** then,in any one or more such events, upon theLandlord serving a written seven (7) BusinessDays notice upon Tenant specifying the natureof said default, and upon the expiration of saidseven (7) Business Days is Tenant shall havefailed to comply with or remedy such default ***then Landlord may serve a written three (3)Business Day notice of cancellation of thisLease upon Tenant, and upon the expiration ofsaid three (3) Business Days, this Lease andthe terms thereof shall end and expire as fullyand completely as if the expiration of suchthree (3) Business Days period were the dateherein definitely fixed for the end andexpiration of this Lease and the Term therefor,and Tenant shall then quit and surrender theDemised Premises to Landlord... “.

Morgan Stanley asserts that it has not violated these lease provisions in that the

provisions of

7 26 provide:

26 Default.

26.01 If Tenant defaults in fulfilling any of thecovenants of this Lease *** or if the DemisedPremises become vacant or deserted;

, but not limitedto the termination of this Lease by Landlord.

The relevant provisions of


Landlord ’s prior written consent, Tenantshall be deemed in default of this Lease andLandlord shall be entitled to its full rights andremedies hereunder, including


1980), where the Third Department held:

“As a general rule, where the language ofthe lease is clear and unambiguous, the intent ofthe parties must be deduced only from the termsof the written agreement. (Citations omitted).The court is required to give all the words andphrases their plain meaning in order todetermine the rights of the parties ”. (Citationsomitted).

It is the province of the court to interpret an agreement. If the agreement is clear

and unambiguous, the court must determine its meaning as a matter of law based upon

6

(3”’ Dept., A.D.2d 660, 660 Inc., 75

N.Y.2d 211 (1978); and Martin v. Glenzan Assoc.,

3 65. See also, Georqe Backer

Mat., Corp. v. Acme Quiltinq Co., 46

2d, Landlord and Tenant

fiq 1 and 26.01 of the lease in that

Plaintiff has not been kept the premises open for the minimum operating hours and has

permitted the premises to become vacant or deserted.

DISCUSSION

A lease, like any other contract, is to be interpreted in accordance with the intent

of the parties, 74 NY Jur

Woodbury Associates argues that the lease should be terminated because

Morgan Stanley has violated the provisions of

n 23

of the lease that it may withhold its approval of a sub-lease for any reason or for no

reason.

Woodbury Associates further asserts that pursuant to

Woodbury Common from

Defendant and was evicted.

Woodbury Associates counters by asserting that

the proposed subtenant introduced by Plaintiff was unacceptable since the principal of

the proposed sub-tenant had previously rented space in


subleasing of the demised premises.


(Sup.Ct. Nassau Co.,

2003).

With these basic principles in mind, the Court concludes that Plaintiff is in

violation of the provisions of the lease agreement which set forth that the minimum

hours of operation shall be the same as the hours of the New York Stock Exchange and

which defines the business day as any day during which the New York Stock Exchange

7

N.Y.Slip 0. 50559(U), Companv, Inc., 2003

&

Son Construction

Parisi

(IZnd

Dept., 1997). See also, Orthooaedic Associates of Manhasset, P.C. v. Michael

A.D.2d 327

(2nd

Dept., 1998); Pouahkeepsie Sav. Bank, FSB v. G.M.Y.S. Assocs., 238

440 A.D.2d Norrito, 256

(4th

Dept., 1996). The Court should not adopt an interpretation which leaves any provision

of the agreement without force and effect. Gonzalez V.

914 A.D.2d Reda V. Eastman Kodak C O., 233

(2nd Dept., 1998). In determining the intent of the parties, each provision of

the agreement must be given effect.

A.D.2d 391

McErlean v. Mendelson, 256

N.Y.2d 336 (1998).

When interpreting a lease, the Court must effectuate the intent of the parties as

expressed in the language of the entire agreement.

(2nd Cir., 1992). Ambiguity will not be created by giving a contract an

interpretation that is in conflict with its express language. Uribe v. Merchants Bank of

New York, 91

F2d 425 Inc., 959

Holdinqs,

(2nd Dept., 1986). The terms of a contract do not become ambiguous simply

because the parties urge different interpretations. Seiden Assoc. Inc. v. ANC

A.D.2d

882

Contractinq Corp., 230 N.Y.2d 562 (2002); and Astro Tile Co. Inc. v. Kulka

Inc.,

98

Philles Records, resort to extrinsic evidence. Greenfield v.


the agreement without


8

Woodbuty Associates served notice

fi 26.01 of the lease. If

the premises became “vacant or deserted ” and

Woodbury Associates further alleges that Morgan Stanley permitted the premises

to become “vacant or deserted ” in violation of the provisions of

stock Exchange was open, Failure to do this was a breach of these provisions of the

lease.

Court concludes that

this provision required Morgan Stanley to have its business open and operating at the

demised premises, at a minimum, on the days and for the hours that the New York

Woodbury Common

location since late March, 2002, it is in breach of its lease agreement. Any other

reading of the agreement would render these provisions without force and effect. lt was

clearly the intent of the patties that the demised premises be utilized by Morgan Stanley

as an operating office. Plaintiff ’s proposed interpretation, that it was under no obligation

to operate its business at this premises, is contrary to the intent and purposes of this

agreement, which was to have a branch office of Morgan Stanley operating at this

location.

Morgan Stanley ’s argument that, since these provisions are in the “Definitions ”

section of the lease agreement, they do not impose an obligation to operate its business

for minimum hours is not supported by the lease agreement as a whole. Paragraph

48.03 of the lease agreement provides that the headings are only for the purposes of

convenience and are to be given any effect when construing the lease.

Since each provision of the lease must be given effect, the


is open. Since Plaintiff has not been open for business at the


sup-a.

The lease, however, uses the words “vacant” and “deserted ” disjunctively. This

9

Herrman v. Adriatic

Fire Ins., Co.,

Herrman v. Adriatic Fire Ins., Co., 85 N.Y. 162 (1881).

This Court finds that, as used in the lease, the term “vacant” means empty in that

Morgan Stanley has moved not merely its operations out of the premises, but also

completely vacated the premises by removing all of its chattels, fixtures and property

from the premises. However, since Morgan Stanley has chosen to leave the desks,

credenzas and other furniture in the premise, it is not vacant. See.

(lst Dept. 1996). Plaintiff asserts that the premises

are not vacant since it has left the premises furnished and it has been paying the rent.

Not surprisingly, Defendant disagrees. The lease provision indicates, and the

termination letters state, that Plaintiff is in violation of the lease because the premises

are “vacant or deserted ”.

The term “vacant” as used in the lease must mean more than unoccupied. The

phrase in the lease is “vacant or deserted ”. These words were clearly used to express

two different situations. See,

Marvland, 228 A.D. 2d 244

& Deposit

Co. Of

Fide&v


upon Morgan Stanley specifying the nature of the default and advising Plaintiff that if the

default had not been remedied within the period as set forth in the lease that the Plaintiff

tenant would be obligated to “quit and surrender ” the premises. The terms “vacant” and

“deserted ” are not defined in the lease.

Where terms are not defined in an agreement, they should be given their

ordinary and natural meaning. See, e.g., Union Labor Life Ins. Co. v.


Woodbury

Associates contends that the proposed sub-tenant was the principal in a business which

10

Woodbury Associates has refused to consider the proposed sub-tenant.

Woodbury Associates is not required to consider or permit Morgan Stanley to

sublet the premises. Plaintiff asserts that it has produced an appropriate sub-tenant but

that

q 26.01 of the lease agreement.

“...Plaintiff has

no intention to reoccupy the Premises... ”This unequivocally expresses that Plaintiff had

deserted the premises in that it had left the premises without any intention to returning.

Thus, Morgan Stanley has deserted the premises which is a violation of the provisions

of

Dubon, First Vice President of Morgan Stanley

Division., Inc., submitted in support of Plaintiff ’s cross-motion confirms,

4th Edition defines “desert” as “to

abandon. ” The actions of Morgan Stanley clearly demonstrates an intent to desert or

abandon the premises. No employees are assigned to work at the premises. Morgan

Stanley does not transact or conduct its business at the premises. The exterior sign

indicating the existence of an office of Morgan Stanley at the premises has been

removed, Plaintiff does not even argue that it intends to re-open this location for its

brokerage business. In fact, Morgan Stanley concedes that the only reason it has kept

the furniture in the premises is in the hope of obtaining a suitable sub-tenant. The

affidavit of Susan Abbracciamento

usu[allyJ without intent to return. ” Webster ’s Ninth New

Collegiate Dictionary. Black ’s Law Dictionary

clearly evinces an intent to deal with two separate and distinct eventualities.

While the premises are not vacant, the premises are “deserted”. “Desert” is

defined as “to withdraw or leave

LLCIndex No. 12679-02

WOODBURY ASSOCIATES MORGAN STANLEY DW INC. v.

Woodbury Associates need not have a “good faith ” obligation to

consider and approve a proposed sub-tenant. To so hold would require the court to add

to the lease a provision indicating that permission to sub-let would not be unreasonably

withheld. That provision is not in the lease.

When sophisticated and counseled business parties set down their agreement in

writing in clear and unambiguous terms, the parties should be bound by the terms of the

11

7 23 grants the landlord unfettered discretion to withhold its consent to

sublet. Therefore, the landlord can deny Morgan Stanley permission to sub-let for any

reason or no reason.

2d, 342, 339 (1963) where

the Court of Appeals held:

“It is settled that, unless the leaseprovides that the lessor ’s consent shall not beunreasonably withheld, a provision againstsubleasing without the lessor ’s consent permitsthe lessor to refuse arbitrarily for any reason orno reason. ”

Lease

(2nd Dept., 1983); and

Dress Shirt Sales, Inc. v. Hotel Martinique Assocs., 12 N.Y.

A.D.2d 466

(2”d Dept., 1989). See also, Mann Theatres Corp.

of California v. Mid-Island Shopping Plaza, Inc., 94

Woodbury Associates, has a substantial interest in deciding who occupies its premises.

Caridi v. Markev, 148 A.D.2.d 653

Woodbury Associates has breached its

implied duty of “good faith ” to consider any subtenant it proffers. The landlord,

Woodbury Common and that this tenant fell behind in

the rent. The proposed sub-tenant ’s prior lease was terminated prior to the expiration

date of the lease with possession being surrendered.

Nevertheless, Plaintiff asserts that the


had previously leased a store in


*”

12

“* * * The receipt by Landlord of the MinimumBase Rent and Additional Rentwith knowledge of the breach of any covenantof this Lease shall not be deemed waiver ofsuch breach and no provision of this Leaseshall be deemed to have been waived byLandlord unless such waiver be in writingsigned by the Landlord * *

Woodbury Associates waived its right to

terminate the lease by accepting rent after the service of the termination notice is

without merit. Paragraph 38.01 of the lease is a “No Waiver ” clause. The relevant

section of that provision provides:

Woodbury Associates ’s refusal to

permit Morgan Stanley does not raise issues of fact requiring a trial.

Morgan Stanley ’s argument that

Woodbury Associates ’s refusal to

approve the proposed subtenant or any subtenant. However, since the lease lacks

such language, the landlord may withhold consent to sublet for any good reason, for

any arbitrary reason or for no reason. Therefore,

- is clear and unambiguous. The tenant, Morgan Stanley, may not sub-let

without obtaining prior written consent of the landlord whose discretion to accept the

subtenant is unfettered.

If the lease contained a provision in which the landlord ’s consent to sub-let was

required and such consent could not be unreasonably withheld, then there would be

questions of fact regarding the reasonableness of

fl23

of the lease

- N.Y.2d 157 (1990). In this case, the subletting clause

N.Y.2d 195 (2001); and W.W.W.

Assocs. v. Giancontieri, 77


agreement. Reiss v. Fin Performance Corp., 97


TSS-’

Seedman ’s, the landlord collected all of the withheld rent prior to the service of the

termination notice. Since the defaults were remedied prior to the service of the

termination notice, the tenant was not in default when the landlord attempted to

13

(lst Dept., 1985) is misplaced. In A.D.2d 1985 v. Wright, 108

N.Y.2d 1025

(1988); and Lee

(2nd Dept., 1991).

Plaintiffs reliance on TSS-Seedman ’s v. Elota Realtv Co., 72

A.D.2d 465

(2nd Dept., 1999); and 510 Joint Venture

v. Solcoor, Inc., 177

A.D.2d 682 Robbins MBW Corp., 259

Grp.

3, LLC v.

Renali Realtv

N.Y.2d 442 (1984). Where the “no waiver ” clause is clear and unambiguous, an alleged

waiver of the clause does not raise an issue of fact requiring a trial.

Presbvterian HOW., 61

$106. Indeed, the validity of this specific provision at issue in this case was

upheld by the Court of Appeals in Jefpaul Garaqe Corp. v.

(2nd Dept., 1972). Acceptance of rent

after service of a notice to cure and while engaged in negotiations with the tenant with

respect to the alleged breach does not constitute a waiver of the breach. Mobil Oil Co.

v. Burdo, 69 Misc. 2d 153 (Dist. Ct., Suffolk Co. 1972); and 74 NY Jur. 2d Landlord and

Tenanf

A.D.2d 713

(2nd Dept., 1972); and Luna

Park Housina Corp. v. Besser, 38

A.D.2d 996

(2nd Dept., 1993);

Pollack v. J.A. Green Construction Corp., 40

A.D.2d 342


The Courts have repeatedly held that acceptance of rent by the landlord after

learning of tenant ’s breach of the lease does not constitute a waiver of the tenant ’s

breach of the covenants of the lease if the landlord has served an appropriate notice

advising the tenant of the breach and directing the tenant to comply with the lease

provision or cure the breach. SAAB Ent., Inc., v Bell, 198


Tq 1 and 26.01 of the lease and that the landlord has not waived compliance with these

provisions in writing. Thus, there are no issues of fact requiring a trial of this issue.

14

Woodbury Associates did not waive

the “no waiver ” clause in the lease agreement.

Furthermore, the “no waiver ” clause requires that any waiver be in writing signed

by the landlord. In this case, the landlord did not waive enforcement of these provisions

of the lease.

It is clear that Morgan Stanley has failed to cure its violations of the provisions of

Woodbury Associates served a second termination notice. Defendant

would have commenced a second summary proceeding in District Court had this action

not been commenced. It is abundantly clear that

Woodbury Associates commenced a summary proceeding in

District Court which was later voluntarily withdrawn. Upon withdrawal of the summary

proceeding,

Woodbury Associates continued to collect rent while

the parties were engaged in settlement negotiations. When the settlement negotiations

reached an impasse,

Woodbury Associates served the termination notice almost immediately upon learning

of Plaintiffs breach of the lease.

Lee are not present in this case.

&, the Court concluded that acceptance of rent by the landlord

after learning of tenant ’s violation of the terms of lease combined with the landlord ’s

prolonged failure to take any action to terminate the lease after learning of the tenant ’s

violation constituted an inferred waiver of the no waiver clause.

The factors relied upon in TSS-Seedman ’s, and


terminate the lease. In


Woodbury Associates

may terminate the lease in advance of that date. Since Morgan Stanley has not

15

60th month

as is required by the lease. This event may never occur since

Woodbury Associates that it intends to terminate the lease at the end of the

60th month of the lease is

September, 2005. Morgan Stanley has not exercised its right to terminate the lease nor

would such option be presently timely. Plaintiff has not given written notice to

60th month of the lease. The

Woodbury Associates of its intention to terminate the lease at least 270

days prior to the end of the

60th month provided it gives

written notice to

7 50 would constitute an

impermissible advisory opinion.

The lease is dated October 19, 2000 and became effective immediately. Morgan

Stanley has the right to cancel the lease at the end of the

(2nd Dept., 1996). Under the facts presented, any

ruling on the rights and obligations of the parties under

A.D.2d 513

Emplovers ’ Fire Ins.,

Co. v. Klemons, 229

$436. The court will not

rule on the dispute if the event will occur only in the future or may never come to pass

because Courts of this State should not issue advisory opinions.

3rd

Woodbury Associates.

In order to obtain declaratory relief, there must be a genuine dispute or actual

controversy between the parties. Siegel, New York Practice

60th month upon providing

appropriate notice to

q 50 of the lease which

provides that it may terminate the lease at the end of the

supra.

Morgan Stanley seeks a declaratory judgment regarding

sup-a; and 510 Joint Venture v.

Solcoor, Inc.,

Robbins MBW Corp., Gro. 3, LLC v. Realtv Renali


See,


N.Y.2d 361 (1975). The moving party has the burden of

making a prima facie showing of entitlement to judgment as a matter of law. Zuckerman

16

N.Y.2d 320 (1986);

and Andre v. Pomeroy, 35

lst Dept., 1972); and Nathan ’s Famous, Inc. v. Frankorama, 70 Misc. 2d

452 (Civ. Ct., Richmond Co., 1972). In this case, the breach is not technical and the

tenant has not substantially complied with the terms or the lease. Morgan Stanley has

breached two significant provisions, the covenant to operate its business at the demised

premises for minimum hours on regular business days as defined by the lease and it

has deserted the premises.

Summary judgment is a drastic remedy that is granted only when it is clear that

there are no triable issues of fact. Alvarez v. Prospect H OSP., 68

aR’d, 71 Misc. 2d 302

(App. Term,

1970),

Villaae v. Lewis, 62 N.Y.

2d 431 (1984). In order to avoid forfeiture, the breach must be technical, the tenant

must have substantially complied with the terms of the lease and there must be no

substantial injury to the landlord as a result of the breach. See, Flv Hi Music Corp. v.

645 Restaurant Corp., 64 Misc. 2d 302 (Civ. Ct., NY Co.,

minimis or technical is also

without merit. Where a tenant violates or fails to perform a substantial obligation under

the lease, the landlord may terminate the tenancy. Park West


exercised its right to cancel the lease and since this event may never occur, there is no

actual controversy between the parties regarding this lease provision. Since there is no

actual controversy between the parties, the Sixth Cause of Action seeking a declaratory

judgment regarding provision Paragraph 50 of the lease must be dismissed.

Plaintiff’s attempt to characterize their breach as de


Arent Fox

17

Woodbury Associates has been successful in this proceeding. Thus, Woodbuty

Associates is entitled to reasonable legal fees to be determined at a hearing.

Woodbury

Associates in the event of default and for defending any action or proceeding.

qlj 27.01 and 28.01 provide for the payment of legal fees to

Woodbury Associates

dismissing the complaint is appropriate.

Finally,

Woodbury Associates

has the right to refuse to permit the subletting of the premises. This issue, which

required the court to interpret the lease, is actually an issue of law; not an issue of fact.

Since no issues of fact exist, summary judgment in favor of

(lst

Dept., 1997).

In this case, there are virtually no significant factual disputes between the parties.

Both parties agree that Morgan Stanley has not operated its brokerage business at the

premises since late March, 2002 and that it has no intention to reopen at this location.

While the parties do have an alleged factual dispute regarding the possible subleasing

of the premises, the Court has concluded that, under the lease,

Briaas, 235 A.D. 2d 192

(2”d Dept. 1996).

The papers submitted in support and in opposition to the motion must be read in a light

most favorable to the party opposing the motion. Martin v.

. Alvarez v.

Prospect Hosp., supra. See also, Aiello v. Garcia, 224 A.D. 2d 467

N.Y.2d 557 (1980). Once the moving party has made a prima

facie showing, the burden shifts to the party opposing summary judgment to produce

evidentiary proof establishing the existence of a material issue of fact

Citv of New York, 49


V.


9:30 a.m. provided that Plaintiffs, not later than April 8, 2003, serve a copy of

this Order and a Note of Issue upon Defendant pursuant to CPLR 311 (a) and file proof

of service of same together with payment of all appropriate fees; and it is further,

1%

(lst

Dept. 2002).

According, it is,

ORDERED, that Defendant ’s motion for summary judgment is granted and the

complaint is hereby dismissed; and it is further,

ORDERED, that Plaintiffs cross-motion for summary judgment is denied; and it

is further,

ORDERED, that the preliminary injunction issued by this Court on August 12,

2002 is hereby vacated; and it is further,

ORDERED, that, in the Court ’s discretion, commencement of any proceedings to

remove Morgan Stanley from the subject premises is hereby stayed for a period of 30

days from the date of service of a copy of this Order with Notice of Entry; and it is

further,

ORDERED, that the branch of Plaintiffs ’ motion seeking attorneys fees is

respectfully referred to Special Referee, Frank Schellace (Special Term Part II

Courtroom, Room 060, Lower Level) to hear and determine all issues relating to a

determination of an assessment of reasonable counsel fees due herein on April 22,

2003, at

- , 747 N.Y.S. 2d 179 - A.D. 2d GmbH, Lutzer Plotkin & Kahn, PLLC v.


Kintner


Hon‘LEONARd B. AUSTIN, J.S.C.

19

>‘J&@,21,2003


ORDERED, that upon determination of counsel fees by Special Referee Frank

Schellace, Plaintiffs shall settle a Clerk ’s judgment consistent with this Order.

This constitutes the decision and Order of the urt.

Dated: Mineola, NYMarch


Documents

N0.12679-02 SUPREME COURT - STATE OF NEW YORK IAS TERM