7 West Foods, Inc. v. Forty-Seventh Fifth Co.7 West Foods, Inc. v. Forty-Seventh Fifth Co.
— Order of the Supreme Court, New York County (S. Schwartz, J.), entered September 19, 1984, which denied рlaintiff’s motion for a preliminary injunction and granted defendant’s cross motion for аn order dismissing the complaint, is unanimously reversed, on the law and facts, the plaintiff’s motion granted and defendant’s cross motion denied, with costs and disbursements payablе by defendant. The parties shall settle an order herein with provision for an appropriate undertaking.
Plaintiff is a commercial tenant of a store located on the north side of West 47th Street, near Fifth Avenue, in the Diamond Building, located in thе diamond district. The premises have been rented from defendant Forty-Seventh Fifth Company (landlord) under lease dated December 14, 1970. Since the lease inceрtion, the store has been operated by plaintiff as a retail delicatessen. Further, since the lease inception, consonant with this retail operаtion there have been affixed two signs, allegedly illuminated and multicolored, advertising the store as “Deli-City”, without any objection from landlord.
In 1983, purportedly to reflect a change in the trade name of the deli, plaintiff removed the “old” signs and erеcted two “new signs”, which were allegedly substantially similar in size and character (multicolored, illuminated) to the old signs, except that the name was changed to reаd “Pastrami Factory”. This replacement was concededly done without the landlord’s consent.
The landlord thereupon sent plaintiff tenant a “notice to cure” under the terms of the lease, stating, in effect, that the erection of new signs constituted an “alteration” within the meaning of paragraph 47 of the lease, and that plaintiff was in violation of that section in failing to obtain landlord’s prior written сonsent for such “alteration”.
The plaintiff tenant responded by commencing this action seeking declaratory relief, i.e., that erection of the new signs was not such a substantial default under the lease as to warrant forfeiture; that plaintiff had no obligation to “cure” and, further, seeking an injunction against termination of the tеnancy.
Simultaneously, plaintiff sought, by order to show cause, a Yellowstone preliminary injunction to enjoin termination of the tenancy, pending detеrmination of the action. Defendant cross-moved for summary judgment dismissing the complaint.
Although noting that issue had not been joined, making defendant’s motion for summary judgment premаture, the court treated the motion as one made pursuant to CPLR 3211 (a) (1),
The defendant’s cross motion was combined with its opposition to the plaintiff’s Yellowstone application. In response, plaintiff devoted only one paragraph in acknowledging that summary judgment was not available since issue had not been joined. Special Term, by “converting” the motion without further notice to plaintiff, prejudiced the right of plаintiff to respond more fully. Pursuant to CPLR 2001, on which Special Term relied, technical dеfects may be corrected or disregarded by the court, but only “if a substantial right of а party is not prejudiced”.
In any event, plaintiff’s action in erecting new signs, which from the evidence submitted appear to be substantially similar in nature and quality to the оld ones, could not be deemed, as a matter of law, to be an “alteratiоn” of the premises which would constitute a breach of the applicablе provisions of the lease. Insubstantial breaches, consonant with the plaintiff’s dеlicatessen business, would not warrant termination of the lease (see, Williams v Ron-Jay Enters.,
Similarly, Special Term should have granted injunctive reliеf pursuant to First Natl. Stores v Yellowstone Shopping Center (