Wallkill Med. Dev., LLC v. Medi-Fair, Inc.

202 A.D.3d 875

162 N.Y.S.3d 454

WALLKILL MEDICAL DEVELOPMENT, LLC, appellant,

v.MEDI–FAIR, INC., et al., respondents.

2019–00268

Index No. 332/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 18, 2021

February 9, 2022

Bartels & Feureisen, LLP, White Plains, N.Y. (Michael Fahey of counsel), for appellant.

Marvin Newberg, Monticello, NY, for respondents.

MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Orange County (Elaine Slobod, J.), entered April 19, 2019. The judgment, upon an order of the same court dated November 7, 2018, granting the defendants' motion for summary judgment on their counterclaims, which sought certain declaratory relief and an award of attorney's fees pursuant to the parties' lease, and dismissing the complaint, and upon a decision of the same court dated March 5, 2019, made after a hearing to determine the amount of the attorney's fees due to the defendants, is in favor of the defendants and against the plaintiff declaring that the defendant Medi–Fair, Inc., is the sole and rightful owner of a certain sales counter and customer display unit that the defendants removed from the leased premises at the end of the lease term, awarding the defendants attorney's fees in the sum of $16,625.50, and dismissing the complaint.

ORDERED that on the Court's own motion, the notice of appeal from the order dated November 7, 2018, is deemed a premature notice of appeal from the judgment entered April 19, 2019 (see CPLR 5520[c] ); and it is further,

ORDERED that the judgment is reversed, on the law, the defendants' motion for summary judgment on their counterclaims, which sought certain declaratory relief and an award of attorney's fees pursuant to the parties' lease, and dismissing the complaint is denied, the complaint is reinstated, and the order dated November 7, 2018, is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

On or about December 28, 2005, the plaintiff, Wallkill Medical Development, LLC (hereinafter Wallkill), as landlord, and the defendant Medi–Fair, Inc. (hereinafter Medi–Fair), as tenant, entered into a 10–year commercial lease with regard to the ground floor of a newly constructed medical office building located in Middletown.

Pursuant to the lease, Medi–Fair, which is a medical supply business, was permitted to use the premises only for the retail display and sale of durable medical equipment, home health care supplies, and oxygen supplies. The lease required Wallkill to complete construction of the interior of the premises (hereinafter the tenant fit-up) according to certain plans and specifications to be prepared by Wallkill with Medi–Fair's input, subject to Wallkill's approval. The lease provided for an allowance to be charged to the tenant fit-up. Further, the lease provided that, in the event Medi–Fair's fit-up costs exceeded the allowance or Medi–Fair required quantities greater than the stated fit-up entitlements or items not specified, the additional charges would be at Medi–Fair's sole cost and expense.

As part of the tenant fit-up, Medi–Fair had Wallkill construct and install at the premises a customized sales counter and customer display unit similar to one that Medi–Fair had in place at its main facility. In the end, Medi–Fair's fit-up work, including extra design costs and additional items such as the sales counter and customer...