Tow NY Auto Body Corp, Petitionerv.Robert Schwickrath, Tow Arrific Inc; Bronx River Holding, Inc., et. al., Respondent
DECISION AND ORDER Recitation, as required by CPLR Rule 2219 [a], of the papers considered in the review of the instant Motion: Order to Show Case of Petitioner Tow NY Auto Body Corp.; Affirmation of David A. Kaplan Esq. in Support of Petitioner’s Order to Show Cause (April 10, 2018); Affidavit of Eric Brown in Support of Petitioner’s Order to show Cause (April 9, 2018) (“Brown Aff.”) and Exhibits A-D (hereinafter “Brown Aff. Ex.[]“); Notice of Cross Motion seeking a Stay and to intervene of Respondents Michael Vargas and East Coast Customs Automotive South (April 23, 2018); Affirmation of Angel Cruz in Support of Respondents Vargas and East Coast Customs Automotive South’s Motion (April 23, 2018) (“Cruz Aff.”) and Exhibits A-C (hereinafter “Cruz Aff. Ex.[]“); Order to Show Cause to Vacate Prior Decision and Motion to Reargue and Renew of Respondents Robert Schwickrath and D and M Holdings Inc. (April 25, 2018); Affirmation of Julian Kaufman in Support of Respondents Robert Schwickrath and D and M Holdings’ Motion to Vacate Prior Decision and Motion to Renew and Reargue (April 25, 2018) (“Kaufman Aff.”) and Exhibits A-D (hereinafter “Kaufman Aff. Ex. []“); Affirmation of Julian Kaufman in Opposition to Contempt Motion (April 25, 2018); Affirmation of Richard R. Schmidt in Opposition to Petitioner’s Order to Show Cause for Contempt on behalf of Respondent Bronx River Holdings (April 24, 2018) “Isabella Aff.” and Exhibits A.G (hereinafter “Isabella Aff. Ex. []“); Affirmation of Arthur G. Trakas in Opposition on behalf of Respondent Tow-Arrific Inc. (April 26, 2018) (“Trakas Aff.”); Reply Affirmation of David A. Kaplan on behalf of Petitioner Tow NY Auto Body Corp (May 7, 2018) (“Kaplan Aff.”) and Exhibits A-D (hereinafter “Kaplan Aff. Ex.[]“). LYLE E. FRANK, J.:These cases began as an alleged illegal lock-out action, which resulted in a March 28, 2018 Order granting the Petitioner, Tow NY Auto Body, possession of the subject premises (docket number LT-900465). When none of the Respondents complied with the court’s Order, Petitioner Tow NY Auto Body moved by Order to Show Cause returnable April 25, 2018 to enforce the Order and to sanction the parties for failure to comply. Putative Respondents Michael Vargas and East Coast Customs Automotive South moved by Order to Show Cause also returnable April 25, 2018 to stay enforcement of the March 28, 2018 Order and for leave to intervene in this matter, asserting that they are the current sub-tenants in possession of the subject promises. Respondents Robert Schwickrath and D and M Holdings Inc. moved by Order to Show Cause returnable May 16, 2018 to vacate the March 28, 2018 Order. Respondent Tow-Arrific moved to be dismissed from this case on the grounds of the undisputed fact that they have surrendered all rights to the subject premises. All Respondents oppose Petitioner’s motion for sanctions.For the following reasons, Respondents’ motion to vacate the March 28, 2018 Order is GRANTED. The court is setting this matter down for a trial to resolve the disputed facts with respect to the legality of Petitioner Tow NY Auto Body’s alleged sub-lease of the subject premises. The court directs the parties to appear in Part 52 of Bronx Civil Court (Room 529A) at 9:30 AM on June 27, 2018 for a trial in this matter.Petitioner’s motion to enforce the March 28, 2018 Order and for sanctions against the Respondents is accordingly DENIED. Respondent Tow-Arrifie’s motion to be dismissed from this action is GRANTED. Respondents Michael Vargas and East Coast Customs Automotive South’s motion for leave to intervene is GRANTED. The Respondents are ordered not to move the Petitioner’s alleged property from the subject premises until the court renders a decision after trial.BACKGROUNDFor the most part, the facts as they relate to the instant motions are not in dispute. Respondent Bronx River Holding (“Landlord”) is the owner of a commercial warehouse and lot located at 1040 Bronx River Avenue in the Bronx, New York (“subject premises”) (Isabella Aff.3). The Landlord and Respondent Tow-Arrific Inc. entered into a twenty-year lease for the subject premises that ran from September 1, 2015 to August 31, 2020 (Isabella Aff. Ex. A). The lease between the Landlord and Tow-Arrific required the written consent of the Landlord before Respondent Tow-Arrific was permitted to execute any valid sub-leases (Isabella Aff. Ex. A15). Specifically, Tow-Arrific, as the Tenant, agreed not to “assign this lease or sublet any part of the premises without the written consent of [Bronx River Holdings].” (Id.).Tow-Arrific and Petitioner Tow NY Auto Body Corp executed a written sublease on June 27, 2017; this sub-lease was subsequently superseded by another sub-lease between Tow-Arrific and Tow NY Auto Body Corp. on October 1, 2017 (Brown Aff.9; Brown Aff. Ex. A). In addition to leasing the physical space from Tow-Arrific, Tow NY Auto Body leased equipment that was already in the space and subsequently acquired new equipment that it added to the space (Brown Aff.13; Brown Aff. Ex. A). Prior to the execution of the sub-lease between Tow-Arrific and Tow NY Auto Body, counsel for Tow NY Auto Body and counsel for the Landlord exchanged emails about the possibility of Tow NY leasing the subject premises directly but the parties did not reach an agreement (Isabella Aff. Ex. D). There is a disputed issue of fact as to whether the Landlord was aware of, or consented to, the sub-lease assignment between Tow-Arrific and Tow NY Auto Body: Petitioner Tow NY Auto Body asserts that the Landlord was long aware that Tow NY Auto Body was occupying the space (see Kaplan Aff.
