Morris v. 702 East Fifth Street HDFCMorris v. 702 East Fifth Street HDFC
Order, Supreme Court, New York County (Edward H. Lehner,
This action was precipitated in 1995 by defendant landlord’s service upon plaintiff commercial tenant of a notice to cure and a notice of termination as a result of plaintiffs renovation of the leased storefront premises for the purpose of opening a coffee house/performanсe space, allegedly in violation of his lease. Plaintiff obtained a Yellowstone injunction staying termination of the lease and shortly thereafter commenced this action, seeking damages for loss of a subtenant due to defendant’s failure to repair leaks at the premises. In March 1996, the court issued a preliminary injunction, which enjoined plaintiff from operating an unlicensed businеss in the building and restricted any performance of live music to string instruments and piano and to the hours of 4:00-9:00 p.m. on Fridays, Saturdays and Sundays.
In March 2000, the parties entered into a stipulation and order of partial settlement (the stipulation) which the court so ordered. The stipulation allowed plaintiff to open his coffee house/performance space after installing plumbing and soundproofing. Upon completion of the soundproofing work, plaintiff was to be given access to residential apartments in the building in order to conduct a sound test by which the experts of both parties would determine appropriate sound levels. Plaintiff’s expert would then see to any additional work needed to make the soundproofing adequate, aftеr which he would forward to defendant a certificate of completion. Upon receipt of such written notice, dеfendant would consent to and would move with plaintiff to modify the preliminary injunction to permit performances seven days a week. In the event further adjustments in the soundproofing were deemed necessary, the parties agreed to a proсedure whereby plaintiff could continue to conduct his business subject to his compliance with defendant’s board of directors’ determination that further soundproofing was needed. During the two so-called “trial periods,” the modified preliminary injunction would be held in abeyance and would only be in effect in the interim between a negative board determination and the next trial period. At such time that defendant’s board
On October 13, 2000, the parties entered into a settlement agreement (the October 13 settlement) whereby plaintiffs action would be marked “settled,” either party could request that the court reinstate the action, and, if reinstated, both parties would seek to bring it on for trial as soon as possible.
Subsequently, on or about June 24, 2002, plaintiff moved to restore the action to the cаlendar, to dissolve the preliminary injunction and to permit plaintiff to operate his business during similar hours as similar businesses on the grounds that defendant breached the stipulation’s provisions allowing plaintiff to perform the sound test and that the injunction impermissibly restriсted the First Amendment rights of the musicians and plaintiff.
Plaintiff moved timely for relief with regard both to the October 13 settlement and to the preliminary injunction. The settlement did not impose a time limit on either party moving to restore the matter to the calendar. Similarly, the CPLR provides that a party enjoined by a preliminary injunction may move at any time to vacate or modify it, upon notice to the other party (see
The record establishes that plaintiff, in reliance on the stipulation, which was inсorporated by reference into the settlement, withdrew his action for damages and performed in accordance with its provisions, whereas defendant did not. Plaintiff demonstrated that he had done the soundproofing work, that it was done in compliance with the applicable regulations, since no permit was necessary, and had attempted to arrange the agreed-upon sound test. Defendant, on the other hand, failed to demonstrate that it met its obligation to arrange the neсessary access for plaintiff to perform the sound test upon completion of the soundproofing work. Thus, the record establishes that defendant’s default precluded further performance of the agreement between the parties. Consequently, the motion court erred in
Plaintiff is also correct in his assertion that the preliminary injunction violates thе First Amendment rights of the instrumental music performers in his coffee house by limiting their performances to string instruments (see Chiasson v New York City Dept, of Consumer Affairs,