Citarella Eviction From Harlem

CANNED

ON

611012009

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SUPREIVIE

COURT

OF THE

STATE

OF

NEW

YORK

-

EW

YORK

COUNTY

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I-0

PRESENT:

KAREN

$.

SMITH

HARLEM

REAL

ESTATE LLC and CITARELLAOPERATING LLC,

Justice

Plaintiffs,Upon the foregolng papem, It is ORDERED that the motion

le

decided

In

accordance

with

the attachedmemorandum decision and order.

INDEX

NO.

PART

62

11

1768lOS

MOTION DATE

311

210s

-v

-

NEW YORKCITYECONOMIC DEVELOPMENTCORPORATION and THECITY

OF

NEW YORK,Defendants.

MOTION

SEQ.

NO.

003

MOTION CAL.

NO.

The following papers, numbered

I

o

__

were read on this

motlon

tolforNotice

of

Motlon

-

ffidavlte

-

ExhibitsAnswering

Affidavits

-

xhibits

PAPER$

NUMBERED

1

I

2

8

'/'

<

ated: JuneS;

2009

Hon. KaredSdh,

J.S.C.

t3

Check

one:

FINAL DISPOSITION

Check

if

appropriate:

0

O

NOT POST

Page

1

of

1

I

SUPREME

COURT

OF

THE STATE

OF NEW YORK

COUNTY

OF

NEW YORK:

PART

62

___1__”_____________________________l_r_-------------------------

HARLEM REAL ESTATE LLC and CITARELLAOPERATINGLLC,Plaintiffs,-against-

PRESENT:

KAREN

S.

SMITH, J.S.C.:

Index No.: 11 1768/06Motion

Seq.:

003

Motion Date: 3/12/09

This

motion

by

defendantsNew York City

.

I‘

City

of

New York for

an

order granting

them

summary

udgment pursuant to CPLR

6

3212,dismissing plaintiffs’ complaint and awarding judgment against plaintiffs on defendants’counterclaims,

is

granted, for the reasons stated more fully below.

By

this action, plaintiffs Citarella Operating LLC (“Citarella”),

a

gourmet food marketwith several locations throughout the New York City metropolitan area,

and

Harlem Real EstateLLC

(“HRE”),

seek

a

declaratory judgment essentially declaring that HEs not in default of thedeed for a parcel of land they purchased from defendant New York City Economic DevelopmentCorporation

(“EDC”).

Defendants City of New York (“the City”) and

EDC

assert

numerouscounterclaims essentially seeking to recover the deed for the subject property and eject plaintiffsfrom the property.When plaintiffs commenced the action, they simultaneously moved

for

an

order granting

them

“a

Yellowstone

type andor injunctive relief,” enjoining defendants from

taking

any action

1

directed at

re-taking

the property. Justice Marilyn Shafer denied plaintiffs’ application bydecision and order dated March

6,2007.

Plaintiff subsequently moved to dismiss defendants’counterclaims, which motion

was

also denied, by order

of

this

Court

dated September

29,2007.

Facts

The

relevant facts are contained in the parties’ motion papers and are not in materialdispute,

unless

noted below. In

or

about April 1999, the City and

EDC,

a local developmentcorporation,’ issued a request for proposals to develop real property owned by defendant City of

New

York, located at 461 West 125” Street and 426-458 West

126th

Street, New York, NewYork (hereinafter “the Harlem Property”). Plaintiff Citarella, intending to acquire the HarlemProperty, established Harlem Real Estate LLC (collectively “plaintiffs”)

and

HRE’s proposal topurchase the property for

$850,000

was accepted.

On May

3,2001,

EDC

executed a Deed,which was recorded

in

the Office

of

the City Register on or about May 24,2001, conveying theHarlem Property to

HRE

for development. The Deed imposed a condition subsequent, requiring

=,

within

six

(6)

months from the date hereof [May 3,20011, to commencerehabilitation

of

the buildings

on

the premises

and,

within

two

(2)

years

from

the date hereof, to have completed such rehabilitation

so

as

to allow[HRE]to obtain a certificate of occupancy for the use of such buildings forcorporate offices, warehouses area, food preparation facility, lightmanufacturing operations, and a retail store.

. . .

EDC

is

a

local development corporation organized pursuant to Section

141

1

of

the New YorkState Not-For-Profit Corporation

Law.

According to

its