Citi Deli Corp., Plaintiff, v. Tsoumpas Sisters Inc. and Martha Pavlakos, Defendants. (2023)

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 9, 10, 12, 13 were read on this motion for INJUNCTION/RESTRAINING ORDER.

Gerald Lebovits, J.

This is an action for a Yellowstone injunction, brought by plaintiff, Citi Deli Corp. (tenant), against defendants, Tsoumpas Sisters Inc. and Martha Pavlakos (collectively, landlord). On December 6, 2022, landlord served tenant with a notice of default, setting a deadline to cure of December 24, 2022. (NYSCEF No. 6.) The notice of default stated, among other things, that tenant had impermissibly altered the use of the premises by "includ[ing] the sale of smoking supplies," thereby "changing the nature of the retail sales" from a grocery/convenience store into a " 'smoke shop.' " (Id. at 4 [quotation marks in original].)

On December 23, 2022 (i.e., before the expiration of the cure period), tenant brought the current action and brought on by order to show cause a motion for a Yellowstone injunction with an accompanying request for interim relief. (See NYSCEF Nos. 1, 2.) This court signed tenant's order to show cause, granted a short-term TRO, and asked the parties to provide letter briefing on whether that TRO should be extended pending the hearing of the motion. (See NYSCEF No. 10.) The parties have provided the requested letter briefing. (NYSCEF Nos. 11, 12.) Plaintiff's request for an extension of the TRO is denied.

The underlying lease provides that tenant "shall utilize the Premises for the operation of a retail sale of merchandise commonly sold in grocery or convenience stores and may sell as an ancillary and secondary use[ ] lightly prepared foodstuffs . . . for off premises consumption, and for no other purposes." (NYSCEF No. 5 at 22 § 64 [A].) Thus, the sale of smoking-related supplies on premises is permissible only if it is consistent with use of the premises on the whole as a grocery/convenience store.

Tenant's affidavit in support of the motion, dated December 22, 2022, represents that although "about two months ago [tenant] began the sale of some smoking supplies, the nature of the Deli has not changed." (NYSCEF No. 4 at ¶ 12.) Landlord's letter briefing, however, attaches a series of photographs taken after execution of that affidavit that appear to show that tenant's store, now named "Milky Way Exotics," is (or will be) devoted largely to the sale of tobacco, cannabis, and smoking-related paraphernalia. (See NYSCEF No. 11 at 8-11.)

These photographs, to be sure, are not introduced through an affidavit of the photographer. But tenant does not dispute their accuracy or authenticity. At most, tenant's counsel's letter brief states that although tenant "has expanded its sale of smoking-related products, it continues to stock and sell grocery store items and lightly prepared foodstuffs" (as evidenced by photographs attached to the letter), and thus is in compliance with the lease. (NYSCEF No. 12 at 2; see also id. at 6-7 [photographs].) Tenant's position, in other words, is that "adding the sale of tobacco or smoking-related products does not change the use of the Premises as a convenience store," given that "tobacco or smoking-related products are typically sold in convenience stores." (Id. [emphasis in original].) A material difference exists, however, between (i) a convenience store/deli that sells largely food and beverages while also stocking cigarettes, lighters, and the like; and (ii) a store that sells largely smoking-related products and paraphernalia while also stocking limited food items along with water and soda. The terms of the lease permit only the former use. The photographs submitted by the parties indicate that tenant has converted the premises into the latter use.

Given tenant's (unpersuasive) position that it is not violating the lease in the first place, this court agrees with landlord that tenant has not shown a willingness or ability to cure its default, as required to obtain Yellowstone relief.

Accordingly, it is

ORDERED that tenant's request for an extension of the current TRO pending the hearing of this motion is denied.

1/5/2023

Gerald Lebovits, J.