JIS PAN LLC v. PELLE PELLE (2023)

DECISION & ORDER

In an action to recover damages for injury to property, the defendants appeal from an order of the Supreme Court, Nassau County (Christopher G. Quinn, J.), dated March 24, 2022.  The order granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability and denied the defendants' cross-motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against the defendant Pelle & Pelle and its members, the defendants Domenick A. Pelle and David D. Pelle, to recover damages for injury to premises that the defendants had leased from the plaintiff.  The plaintiff moved for summary judgment on the complaint, contending that certain items that the defendants had removed when they moved out of the premises were not trade fixtures, but rather were permanent fixtures of the premises.  The defendants opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the items were trade fixtures that they were entitled to remove upon vacating the premises.  By order dated March 24, 2022, the Supreme Court granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability and denied the defendants' cross-motion.  The defendants appeal.

“Trade fixtures are articles of personal property which a tenant places upon or annexes to the leased realty for the purpose of carrying on its trade or business during the term of its lease” (J.K.S.P. Rest., Inc. v. County of Nassau, 127 A.D.2d 121, 125, 513 N.Y.S.2d 716;  see East Side Car Wash, Inc. v. K.R.K. Capitol, Inc. 102 A.D.2d 157, 476 N.Y.S.2d 837).  “[F]or property to meet the definition of a trade fixture, it must be shown (1) that the property was annexed to the leased realty by the tenant, and (2) for the purposes of the tenant's trade or business.  However, a trade fixture may not be removed unless this can be accomplished without substantial or material injury to the freehold” (J.K.S.P. Rest. v. County of Nassau, 127 A.D.2d at 125–126, 513 N.Y.S.2d 716;  see Matter of City of New York, 192 N.Y. 295, 302, 84 N.E. 1105).

Here, the plaintiff demonstrated, prima facie, that the items at issue were not trade fixtures that the defendants were permitted to remove upon vacating the premises.  The plaintiff's submissions in support of its motion established that the items had become integral to the property and that their removal caused material injury to the premises (see Matter of Metropolitan Transp. Auth. [Fulton St. Tr. Ctr. Project Phase 2], 81 A.D.3d 434, 436, 916 N.Y.S.2d 64;  Matter of New York State Urban Dev. Corp. v. Nawam Entertainment, Inc., 57 A.D.3d 249, 250, 868 N.Y.S.2d 201).  Additionally, the plaintiff demonstrated that the items were not uniquely suited to the operation of the defendants' business (see Matter of Village of Port Chester, 42 A.D.3d 465, 468, 839 N.Y.S.2d 218).

In opposition, the defendants failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability and denied the defendants' cross-motion for summary judgment dismissing the complaint.

DUFFY, J.P., CHAMBERS, CHRISTOPHER and WARHIT, JJ., concur.