161 A.D.2d 269 | N.Y. App. Div. | 1990
Order of the Supreme Court, New York County (William J. Davis, J.), entered on or about July 13, 1989, which, inter alia, denied plaintiffs motion for summary judgment, is unanimously reversed, on the law, to the extent appealed from, plaintiffs motion for summary judgment granted and the matter is remanded for an assessment of damages and a determination of the respective liability of the various defendants, with costs and disbursements.
Between 1970 and 1980, plaintiff was a hotel stabilized tenant at 330 East 56th Street in Manhattan. Defendants are three successive owners of the building. Defendant Sutton East Associates (SEA) purchased the premises in 1983 with the intention of renovating and converting the structure into a modern hotel facility. Thereafter, it undertook to vacate the building of its tenants and, in that connection, entered into a stipulation with plaintiff, dated August 23, 1984, pursuant to which she agreed to vacate temporarily her room during construction, withdraw various claims in exchange for which SEA would pay her the sum of $18,000 during each of the maximum of two years that she was not in possession of the premises and would restore her to designated rooms in the building not later than August 31, 1986. In addition, SEA
The interior of the hotel was subsequently demolished, but rehabilitation was never completed. Some 18 months after executing the stipulation, and without having restored plaintiff to possession, SEA sold the building to defendant Sutton Hotel Associates (SHA). When SHA initially obtained ownership of the premises, it continued the interior demolition commenced by SEA. However, in January of 1987, SHA was served with a stop-work order by the Department of Buildings, and all rehabilitation work ceased. In July of 1988, SHA transferred the structure to defendant W. M. Associates, L. P. It is undisputed that the building has never been renovated and remains uninhabitable. Plaintiff instituted the instant action for monetary damages and injunctive relief after it became evident that defendants were not going to render the hotel fit for occupancy so that she could resume residence therein. She then moved, in part, for summary judgment on the issue of liability in response to which defendants advanced a claim that compliance with the stipulation is a legal impossibility and that, moreover, the doctrine of laches is applicable based upon her failure to seek timely enforcement of her right, as of September 1, 1986, to recover possession of the premises in question. The current owner, W. M. Associates, also urges that it is not bound by any of the terms of the stipulation. There is no merit to any of defendants’ claims, and plaintiff is entitled to summary judgment as to liability.
Contrary to the determination of the Supreme Court, there are no unresolved factual issues precluding summary judgment on the issue of liability. In that regard, the provisions of the stipulation are clear, and it is uncontested that defendants have failed to comply with their undertakings thereunder. Defendants assert that the revocation by the Department of Buildings of the permit to construct a transient hotel caused the stipulation to be impossible to perform. However, even if we were to accept as true SHA’s conclusory allegations that it could not procure financing for the project in the form de
There is, similarly, no substance to any of defendants’ other arguments. Paragraph 17 of the stipulation states that "[t]his agreement is binding upon [SEA], all real parties in interest, all heirs, successors and assigns, and [SEA] warrants that should it relinquish or forfeit title to the hotel premises that it is obliged to give notice of this agreement to any subsequent, purchasers, mortgagors or other persons or entities with right, title or claim to an interest in the premises, and that it shall give immediate notice to [tenant’s] attorney of any contract for sale of the premises.” Moreover, SEA committed itself in paragraph 6 to "execute simultaneous with the execution of this agreement a duly acknowledged, rent stabilized standard form apartment lease between it and [tenant] for the new rooms at the hotel” and also to record this lease with the City Register. According to the Court of Appeals in Orange & Rockland Utils. v Philwold Estates (52 NY2d 253, 262), "[w]hether a covenant restricting real property is personal or runs with the land depends upon three factors: (1) whether
Plaintiff’s right to monetary damages and/or injunctive relief as a result of defendants’ breach of the stipulation is evident, and the Supreme Court should have granted her motion for summary judgment on the issue of liability. This matter should, thus, be set down for an inquest at which her damages and, if appropriate, other remedies should be calculated, and defendants’ respective responsibility should also be apportioned between them. Certainly, defendants’ various lia