Gallery at Fulton Street, LLC v. Wendnew LLC

Appellate Division of the Supreme Court of the State of New York

Jun 13, 2006

Versions:

Lincoln thought 〉 The user wants to convert a legal document provided in two screenshots/OCR snippets into HTML. ### Case 1: Partial content at the top of page 1 Page 1 starts with the end of a previous case: “based entirely on his prior convictions... Gonzalez and Malone, JJ.” This should be skipped per the “Multi-Opinion Documents” rule: “Skip partial content from a previous case that appears at the beginning of the document.” ### Case 2: The Main Opinion **Case Name:** The Gallery at Fulton Street, LLC, Appellant-Respondent, v Wendnew LLC et al., Respondents-Appellants. **Citation:** 817 NYS2d 237 (This is the citation for this case, though the reporter itself is likely AD3d). Looking at the style, it‘s New York Appellate Division, First Department. **Court:** Appellate Division of the Supreme Court of New York, First Department. **Date:** The text mentions judgments entered April 19, 2005 and March 22, 2005. The opinion date isn‘t explicitly at the top, but the reporter cite 817 NYS2d 237 usually lists the date. However, I must stick to the text provided. Usually, the date of the appellate decision is what matters. In these New York reports, the date is often implied or listed in the header (which is redacted/blacked out). I will check the OCR. The header is blacked out. However, the first case mentions “Mazzarelli, J.P., Andrias, Nardelli, Gonzalez and Malone, JJ.” and the second case (this one) ends with “Concur—Mazzarelli, J.P., Andrias, Nardelli, Gonzalez and Malone, JJ.” Wait, looking at the snippet, the second case ends on page 222 and then a third case starts: “Reed Elsevier Inc. ...“. So the main case to convert is: **The Gallery at Fulton Street, LLC v Wendnew LLC**. #### Case Info Extraction - Case Name: The Gallery at Fulton Street, LLC, Appellant-Respondent, v Wendnew LLC et al., Respondents-Appellants. - Short Name: Gallery at Fulton St., LLC v. Wendnew LLC - Docket: Not explicitly provided in the text (often New York Appellate cases don‘t list it in the reporter text). - Court: App. Div. (implicitly 1st Dept based on judges, but I will use the available text). Actually, the reporter 817 NYS2d is the NY Supplement. - Date: The text says judgments were entered in April 2005 and March 2005. The appellate decision itself is usually contemporaneous. I‘ll check for a specific decision date. It‘s not visible. I will omit the date attribute or use the year 2006 if known, but here I should stick to what is on the page. The reporter volume 221-222 is for 29 AD3d (2006). I will omit the date if not explicitly stated in the provided text. - Citation: 29 AD3d 221 (page number), 817 NYS2d 237. #### Page Markers - Page 1 starts at 221. - Page 2 starts at 222. #### Text Content Starts: “Judgment, Supreme Court, New York County...” Ends: “...Malone, JJ.” #### Citations - Almendarez-Torres v United States, 523 US 224 [1998] (This is in the skipped first case). - Case 2 Citations: - H.K.D. Seafood v 25 N. Moore Assoc., 271 AD2d 351 [2000] - P.W.B. Enters. v Moklam Enters., 221 AD2d 184 [1995] - Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 82-83 [1970] - Express Indus. Group v City of New York, 4 AD3d 197 [2004] - West Broadway Glass Co. v I.T.M. Bar, 245 AD2d 232 [1997] - Henry Modell & Co. v Minister, Elders & Deacons of Ref. Prot. Dutch Church of City of N.Y., 68 NY2d 456, 461 [1986] - Holy Props. v Cole Prods., 87 NY2d 130, 134 [1995] - International Publs. v Matchabelli, 260 NY 451, 453-454 [1933] #### Statutes/Laws - Penal Law § 60.35 [1] [a] [v] (In the skipped first case). #### Formatting Notes - Rejoin hyphenated words: “rec-ommendation” -> “recommendation“, “proceed-ing” -> “proceeding“, “op-portunity” -> “opportunity“, “plain-tiffs” -> “plaintiff‘s” (note the OCR says plaintiffs but the text likely has an apostrophe or should be “plaintiff‘s“), “evic-tion” -> “eviction“, “landlord--tenant” -> “landlord-tenant“, “International Pub-ls.” -> “International Publs.” Let‘s double check the OCR vs Image. Page 221: “rec-ommendation” re-joined. “op-portunity” re-joined. “proceed-ing” re-joined. “plaintiff‘s” (OCR says plaintiffs, image says “plaintiff‘s“). Page 222: “evic-tion” re-joined. “col-lected” re-joined. “pay-ment” re-joined. “landlord-tenant” (double hyphen in OCR, single in image). “Publs.” (OCR split). The first case snippet is partial. I skip it. The main case starts with the bold title: “The Gallery at Fulton Street, LLC...” The next case starts on page 222: “Reed Elsevier Inc. ...“. I stop before it. #### Constructing the HTML ```html

The Gallery at Fulton Street, LLC, Appellant-Respondent, v Wendnew LLC et al., Respondents-Appellants. [817 NYS2d 237]—

Judgment, Supreme Court, New York County (Leland DeGrasse, J.), entered April 19, 2005, awarding plaintiff the principal sum of $100,000, unanimously modified, on the law, the Special Referee‘s report confirmed with respect to his recommendation for an increased damage award of $514,039.97 for rent arrears from August 2001 through April 2004, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered March 22, 2005, which remitted the matter to the Special Referee for recalculation of damages, unanimously dismissed, without costs.

The court properly ruled that defendants, in this action for breach of a commercial lease, were estopped from raising the defense of constructive eviction after they were given the opportunity to litigate this claim in the prior summary proceeding, but failed to do so (see H.K.D. Seafood v 25 N. Moore Assoc., 271 AD2d 351 [2000]; P.W.B. Enters. v Moklam Enters., 221 AD2d 184 [1995]). In any event, in order to assert a defense of constructive eviction, the tenant must abandon the premises (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 82-83 [1970]; Express Indus. Group v City of New York, 4 AD3d 197 [2004]; West Broadway Glass Co. v I.T.M. Bar, 245 AD2d 232 [1997]). The prior summary proceeding, wherein plaintiff‘s petition for possession was granted, necessarily decided that defendants remained in possession and plaintiff had properly terminated the lease. A default judgment in a summary proceeding for nonpayment of rent is conclusive between the parties as to any facts alleged in the petition or affidavit that are required to be alleged as a basis for the proceeding (see Henry Modell & Co. v Minister, Elders & Deacons of Ref. Prot. Dutch Church of City of N.Y., 68 NY2d 456, 461 [1986]). Defendants’ continued possession was such a fact, and negates their constructive eviction defense.

However, the court improperly held that the referee must calculate plaintiff‘s damages pursuant to section 23.2 (b) (iii) of the lease. This provision permitted, but did not require, the landlord to accelerate future rents under the lease, using a formula essentially based on rent that should have been collected under the lease, minus the “rental value” of the property, discounted to present value. Plaintiff did not seek immediate payment of future rents under this provision, but sought payment of already accrued arrears under the other provisions of the lease, such as section 23.2 (a) (iv) and (b) (ii). All remedies under the lease for tenant‘s breach are in addition to, and not exclusive of, other remedies. That plaintiff terminated the lease upon defendants’ breach does not render plaintiff‘s claims enforceable only under section 23.2 (b), which clearly states that those remedies were “in addition to” the landlord‘s other remedies. Moreover, although the termination ends the landlord-tenant relationship, the parties clearly contracted to make the defaulting tenant liable for rent after such termination (cf. Holy Props. v Cole Prods., 87 NY2d 130, 134 [1995] [“Although an eviction terminates the landlord-tenant relationship, the parties to a lease are not foreclosed from contracting as they please. If the lease provides that the tenant shall be liable for rent after eviction, the provision is enforceable” (citations omitted)]; International Publs. v Matchabelli, 260 NY 451, 453-454 [1933]).

As the only argument—that plaintiff is limited in damages to section 23.2 (b) (iii) of the lease—is rejected, and there is no contention that the Special Referee did not properly calculate the accrued damages from lost rent between August 1, 2001 and April 30, 2004, the court should have confirmed this aspect of the Special Referee‘s report. Concur—Mazzarelli, J.P., Andrias, Nardelli, Gonzalez and Malone, JJ.

``` Wait, I need to check the exact capitalization of judge names and titles in the “Concur” line. Image 1 (first case): “Mazzarelli, J.P., Andrias, Nardelli, Gonzalez and Malone, JJ.” Image 2 (this case): “Mazzarelli, J.P., Andrias, Nardelli, Gonzalez and Malone, JJ.” The OCR says J.E for the first one, but image clearly says J.P. (Justice Presiding). The second one OCR says J.P. Also, I should include the citation 29 AD3d 221 in the metadata if I can infer it from the page number and context. The page header “221” and “222” with this specific text and judges is definitely 29 AD3d 221. Metadata: - case-name: The Gallery at Fulton Street, LLC, Appellant-Respondent, v Wendnew LLC et al., Respondents-Appellants. - shortName: Gallery at Fulton St., LLC v. Wendnew LLC - docket: Not in text. - court: N.Y. App. Div. (Appellate Division, First Department) - citation: 29 A.D.3d 221, 817 N.Y.S.2d 237 One detail: “plaintiffs petition” in OCR. Image shows “plaintiff‘s petition” (possessive). I will use the image‘s text. “International Publs.” OCR has a line break. Image shows “International Publs. v Matchabelli“. Wait, checking image 2... Image 2: “International Publs. v Matchabelli, 260 NY 451...“. Yes, I will rejoin. Let‘s refine the citations to match formatting. NY citation style uses brackets for years in reporter cites sometimes (e.g. 271 AD2d 351 [2000]). I will preserve that inside the tag. Final check on content: - skip previous case - start with The Gallery... - end with ...Malone, JJ. - rejoin line-break hyphens. - correct OCR errors using the image (e.g. “J.P.” instead of “J.E“). - Use straight quotes. Wait, looking at the first paragraph of the Gallery case: “Judgment, Supreme Court, New York County (Leland De Grasse, J.)” Image shows “De Grasse” (with space). OCR shows “De Grasse“. One more check on the “dismissed, without costs” sentence. “...unanimously dismissed, without costs.” matches. Citations: - H.K.D. Seafood v 25 N. Moore Assoc., 271 AD2d 351 [2000] - P.W.B. Enters. v Moklam Enters., 221 AD2d 184 [1995] - Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 82-83 [1970] - Express Indus. Group v City of New York, 4 AD3d 197 [2004] - West Broadway Glass Co. v I.T.M. Bar, 245 AD2d 232 [1997] - Henry Modell & Co. v Minister, Elders & Deacons of Ref. Prot. Dutch Church of City of N.Y., 68 NY2d 456, 461 [1986] - Holy Props. v Cole Prods., 87 NY2d 130, 134 [1995] - International Publs. v Matchabelli, 260 NY 451, 453-454 [1933] All these look correct. I‘ll put them in `