Before the Court are the following submissions: 1. Plaintiff’s Order To Show Cause for Yellowstone Injunction and Temporary Restraining Order, Attorney Affirmation Of Emergency by James E. Clark, Esq. with Exhibits A through D and Affidavit In Support of Order To Show Cause by Anthony Pellizzi;2. Defendant’s Notice of Cross-Motion, Attorney Affirmation In Opposition To Plaintiff’s Motion and In Support of Defendant’s Cross-Motion by Teresa A. White, Esq., inclusive of Exhibits A through L and Corrected Exhibit B;3. Plaintiff Attorney’s Affirmation In Opposition To Cross-Motion and In Further Support of Order To Show Cause with Exhibits A through D; and4. Defendant’s Reply Affirmation of Teresa A. White.The parties each petition the Court for specific relief. Plaintiff brought an Order to Show Cause seeking a Yellowstone Injunction and a Temporary Restraining Order. Defendant thereafter crossed moved for dismissal. The petitions were marked submit on the 24th day of October 2018.The Court having considered all submissions sees fit to engage the process set forth at Civil Practice Law and Rules §2218:The court may order that an issue of fact raised on a motion shall be separately tried by the court or a referee. If the issue is triable of right by jury, the court shall give the parties an opportunity to demand a jury trial of such issue. Failure to make such demand within the time limited by the court, or, if no such time is limited, before trial begins, shall be deemed a waiver of the right to trial by jury. An order under this rule shall specify the issue to be tried.The issue to be tried involves the language of a duly executed lease between the parties. Plaintiff being a tenant, Defendant being the landlord. More specifically, at preamble D. “Use,” the following is noted:The Demised Premises shall be used and occupied only for the Permitted Uses or similar uses and for no other purpose and Tenant is specifically prohibited from using the Demised Premises in violation of any provision of this Lease including, but not limited to, Article 27 hereof.Landlord covenants and agrees that during the term of this Lease, provided that Tenant is not in default beyond the applicable notice, cure and additional grace period, Landlord shall not lease any space in the shopping center, or permit any space to be leased, occupied or used, for the sale of coffee, espresso, espresso and coffee based beverages, donuts, baked goods, breakfast sandwiches, bagels, ice cream or other frozen treats or frozen beverages. Tenant hereby agrees that the foregoing exclusive shall not apply to (i) existing tenants of the Shopping Center that are currently selling these products; (ii) any full-service, sit-down restaurants offering such items for on premises consumption only provided the aggregate gross sales of the foregoing exclusive items does not exceed 15 percent of that sit-down tenants gross sales.The genesis of the dispute between the parties is found in a February 1, 2018 letter from the Tenant to the Landlord. The Tenant notes as follows:We have learned that Landlord has leased space in the Shopping Center adjacent to our Premises to Bango Bowls. We understand Bango Bowls sells or will sell, among other items, coffee, coffee based beverages, baked goods, break fast sandwiches, bagels and frozen treats or frozen beverages. As you may be aware, pursuant to Preamble D of the Lease, Tenant has the exclusive right to sell, and Landlord is prohibited from leasing any space in the Shopping Center or permitting any space in the Shopping Center to be leased, occupied or used for the sale of, coffee, espresso, espresso and coffee based beverages, donuts, baked goods, breakfast sandwiches, bagels, ice cream or other frozen treats or frozen beverages. Accordingly, this letter shall serve as Tenant’s notice that Landlord must prevent Bango Bowls from selling or offering for sale any of the foregoing Tenant exclusive items.The tenant operates a Dunkin Donuts. The suggested prohibited products sold by Bango Bowls may very well be dispositive of significant issues raised in the parties prayer for relief.The issue to be determined is the nature of product sold by “Bango Bowls” and whether or not said sales trigger specific remedies found in the lease instrument.To that end, the parties shall appear at a conference before the Court on Monday, November 26, 2018 at 10:30 to determine the appropriate protocol, including discovery to be engaged in between the parties before the aforementioned CPLR 2218 hearing.Furthermore, the parties are to inform any other Court where summary proceedings may be pending of this Court’s direction.Any and all other relief sought by the party shall be marked “reserved” pending the framed issue hearing set forth hereinabove.The foregoing shall be deemed the decision and ORDER of this Court.Dated: November 2, 2018
