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SHORT FORM ORDER
SUPREME COURT OF THE STATE OF NEW YORK
PRESENT: HON. DANIEL MARTIN
Acting Supreme Court Justice
TRIAL/IAS, PART 39
NASSAU COUNTY
BLUEBERRIES GOURMET, INC.
Plaintiff
.
Index No.: 030467/97
Sequence No.: 7 & 8
- against ARIS REALTY CORP. and JOHN DOES
l-10, d/b/a BAGEL BOSS, a proposed tenant
in the East Norwich Shopping Center.
Defendants.
The following named papers have been read on this motion:
Notice of Motion and Affidavits Annexed
Notice bf Cross-Motion and Affidavits Annexed
Answering Affidavits
Replyin
Papers Numbered
X
X
X
g
Motion by defendant Aris Realty Corp. ( “Aris Realty”) for an order pursuant to CPLR
3212 granting it summary judgment dismissing the plaintiff Blueberries Gourmet, Inc. ‘s
(“Blueberries Gourmet”) claims for affirmative, monetary and injunctive relief and declaring
that neither Aris’ Realty’s lease with defendant Bagel Boss or Bagel Boss ’ bagel store operations
in the East Norwich shopping center violate the restrictive covenant in its lease with plaintiff
Blueberries Gourmet’s is granted.
Cross-motion by defendant K.I.S. Bagels Inc., s/h/a/ John Does l-10, d/b/a Bagel Boss
(“K.I.S. Bagels”) for an order pursuant to CPLR 3212 granting it summary judgment declaring
that K.I.S. Bagels’ operations are not violative of the lease between defendant Aris Realty and
plaintiff Blueberries Gourmet; and, declaring that K.I.S. Realty did not have notice of the
restrictive covenant in Blueberries Gourmet ’s lease with Aris Realty; and, dismissing plaintiffs
complaint against K.I.S. Bagels in its entirety is granted to the extent provided herein.
In this action, plaintiff Blueberries Gourmet seeks, inter alia, to enjoin the operation of a
bagel and Kosher dairy establishment based upon a restrictive covenant in its lease with
defendant Aris Realty. Plaintiff Blueberries Gourmet operates a gourmet marketplace in the
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East Norwich Shopping Center. Blueberries Gourmet
’s lease was entered in December 1986
when the property was sold to defendant Aris Realty by Andrew Miscioscia, Blueberries
Gourmet ’s late principal. Upon the sale of the real property, Mr. Miscioscia simultaneously took
the Blueberries Gourmet ’s lease back on the premises which served as Blueberries Gourmet
store. Blueberries Gourmet ’s lease describes its operation as a
“supermarket grocery store,
including the sale of wine and beer, and on premises consumption of food and for no other
purpose. ” At Mr. Miscioscia ’s insistence the lease contains a restrictive covenant which reads:
’s
Landlord will not lease any store in the East Norwich Shopping
Center to a tenant engaged in the same or similar business as the
tenant, as a supermarket.
In 1997, approximately one year following Mr. Miscioscia
’s death, Aris Realty leased premises
in the shopping center to defendant K.I.S. Bagels, Inc. K.I.S. Bagels
’ lease describes it as a
“take-out restaurant for the exclusive sale of bagels and other related specialties....
”
Defendants Aris Realty and K.I.S. Realty presently seek summary judgment declaring
that K-1-S. Bagels ’ operations do not violate the restrictive covenant in plaintiffs lease.
Defendant Aris Realty also seeks summary judgment declaring that defendant Bagel Boss
does not violate the restrictive covenant in plaintiffs lease. Defendant K.I.S. Bagels also seeks
summary judgment declaring that it did not have notice of the restrictive covenant in plaintiffs
lease when it entered into its lease and that it is therefore not bound by it.
’ lease
Defendant Aris Realty and K.I.S. Bagel ’s are granted summary judgment declaring that
neither K.I.S. Bagel ’s lease nor its operations violate the restrictive covenant found in plaintiff
Blueberries Gourmet ’s lease.
The court must initially address the dispute over whether the restrictive covenant reads
“as a supermarket, ” as defendants contend, or,“or a supermarket, ” as plaintiff contends. This
language was added to the printed lease by Aris Realty
’s attorney Terry S. Triades at closing in
his handwriting. To the naked eye, the words appear
“as a supermarket. ” At his Examination
Before Trial, Mr. Triades testified that these words were added to the lease by him at Aris
Realty ’s behest to limit the scope of the restrictive covenant. He testified that all those present
orally agreed before the clause was added that
“as a supermarket ” would be added to the
restrictive covenant. It was his recollection that the phrase
“or a supermarket ” was never even
discussed. Indeed, Mr. Triades ’ interpretation is buttressed by the plaintiff Blueberries
Gourmet ’s lease ’s use clause, which describes it “as a supermarket grocery store, including the
sale of wine and beer and on premises consumption of food and for no other purpose.
” In
contrast, Mr. Maniatis, who represented the seller/lessee Mr. Miscioscia at the closing, testified
at his Examination Before Trial that he had no recollection how the handwritten phrase was
added nor the negotiations which lead to it. He only presumed that Mr. Triades wrote the phrase
and in his opinion, the handwritten language reads
“or a supermarket ”.
Concerning what the handwritten language says, no issue of fact exists. Defendants have
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established through the document itself as well as Mr. Triades
’ testimony that the added phrase
reads “as a supermarket. ”Plaintiff in response has failed to raise an issue of fact. Mr. Maniatis
’
“opinion ” is irrelevant, particularly since he was present and in fact played an active role in the
words ’ addition to the restrictive covenant. At best, his opinion raises a shadowy semblance of
an issue, which is insufficient to defeat a summary judgment application such as this. (See &I&I
Broadwav Rental, Inc. v. United States Mineral Products Company, 242 AD2d 440,445 T-,
aff ’d
92 NY2d 421; Blankman v. Incornorated Village of Sands Point, 249 AD2d 349). Mr. Maniatis ’
uncommunicated subjective intent fails to raise an issue of fact (Hudson- Port Ewen v. m, 165
AD2d 301, a, 78 NY2d 944 citing Wells Shearson/Lehman, 72 NY2d 11,24) and his
affidavit, which supports plaintiffs position only by contradicting his deposition
testimony, fails to raise an issue of fact as well. (Califano v. Campaniello, 243AD2d 528,529530; Andrews v. Porreca, 227 AD2d 940,941; Garvin v. Rosenberg, 204 AD2d 388).
The next issue to be addressed is whether defendant At-is Realty violated the restrictive
covenant in.plaintiff Blueberries Gourmet ’s lease by leasing premises to defendants Bagel
Boss/K.I.S. Bagels.
“Covenants restricting the use of land are contrary to the general public policy
” and are
accordingly “strictly construed against those seeking to enforce it and may not be given an
interpretation extending ‘beyond the clear meaning of its terms.... ” (Thrun v. Stromberg, 136
AD2d 543, 544 [citations omitted]). In light of the strong public policy favoring the unrestricted
use of realty, the burden to prove the existence and scope of a restrictive covenant falls squarely
upon the party seeking to enforce it which burden must be met by clear and convincing evidence.
(Greek Peak, Inc. v. Grodner, 75 NY2d 981; Bear Mountain Books, Inc. v. Woodburv Common
Partners, 232 AD2d 595, Iv to anp. den., 90 NY2d 808). Similarly, when “the language used in a
restrictive covenant is equally capable of two interpretations, the less restrictive interpretation
must be adopted. ” (Sunrise Plaza Assoc. v International Summit Eauities Corn., 152 AD2d 561,
Iv to ann. den., 75 NY2d 703; Bear Mountain Books, Inc. v. Woodburv Common Partners, supra,
at p. 596; Thrun v. Stromberg, supra, at p. 544).
While it appears clear that defendant K.I.S. Bagels is not in
“the samesimilar
or
business ” as plaintiff Blueberries Gourmet, there is no question that defendant K.I.S. Bagels is
not in “the same or similar business, as a supermarket.” “The plain meaning of ‘supermarket ’ is
‘a departmentized self-service chain or independent retail market that sells food, convenience
goods, and household merchandise arranged in open mass display
’ (Webster ’s Third New
International Dictionary 2295; see also 30-88 Steinwav St. v Bohack Co., 65 Misc2d 1076, affd.
42 AD2d 577, Iv dism., 33 NY2d 692). ”Benderson vWiper Check Inc., _ AD2d _, 697
N.Y.S.2d 448,450).
Plaintiff Blueberries Gourmet sells a wide variety of gourmet supermarket items, such as
meats, frozen foods, deli and produce as well as assorted household and non-food items such as
paper goods, cleaners, utensils, drugstore items, cigarettes, batteries, magazines, greeting cards,
pet items, etc. K.I.S. sells bagels and dairy products, many in a catering fashion, under
rabbinical supervision. The court notes that to the extent that Blueberries Gourmet operates as a
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gourmet caterer, it may be violating its own lease. (See, e.g., 30-88 Steinway Street. Inc. v. H.C.
Bohack Co., Inc., suwa,; Burber v. Jilamb Meat, 115 Misc2d 976). In any event, in light of the
discernable differences between the two operations, the businesses
’ minor overlap or similarities
does not violate the restrictive covenant. (Sol Gord Luncheonette, Inc. v. S.&H. Realtv Co.,
50AD2d 799; see also, Christman v. Starr, 39 AD2d 431).
The defendants ’ motions for summary judgment is granted and it is hereby declared that
Aris Realty or their operations
neither defendant K.I.S. Bagels/Bagel Boss ’ lease with defendant
violate the restrictive covenant in plaintiff Blueberries Gourmet
’s lease with defendant Aris
Realty. The plaintiffs complaint is dismissed,
This order shall constitute the order of this court.
Submit judgment on notice.
So Ordered.
Dated: Mav 18,200O
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