The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 were read on this motion to/for DISMISS. DECISION + ORDER ON MOTION Defendant St. Giles Hotel, LLC moves, by order to show cause, for an order canceling the Notice of Pendency filed by plaintiff Sylvan Hospitality Group, Inc., pursuant to CPLR 6514(b), as well as for costs and expenses, pursuant to CPLR 6514(c). Defendant also moves, pursuant to CPLR 3211(a)(7) and (a)(1), for an order dismissing the complaint. For the reasons set forth below, defendant’s motion to cancel the Notice of Pendency is granted. Defendant’s motion to dismiss the complaint is granted with respect to dismissal of the first cause of action to quiet title, the second cause of action for unjust enrichment, and the fourth cause of action for constructive trust. However, the motion to dismiss is denied with respect to the third cause of action for breach of the lease. Plaintiff is a New York corporation, with an address at 120 East 39th Street, New York, New York 10016 (“premises”) (NYSCEF Doc. No. 1, complaint at 1]). Plaintiff’s sole asset is a high-end New York City steakhouse, with rights to operate under a lease with defendant at the premises (id.). Defendant operated a now closed hotel, the St. Giles Hotel, at the premises (NYSCEF Doc. Nos. 9 2, affidavit of Anupam Bhaumik, St. Giles’ Controller; 1 2, summons and complaint). On January 14, 2019, defendant leased the restaurant space at the premises to plaintiff, pursuant to a written management agreement (NYSCEF Doc. Nos. 10, lease; 9, Bhaumik aff, 3; 1, complaint, 3). Plaintiff alleges that, although the lease was denominated a management agreement, it was a traditional lease (NYSCEF Doc. No. 1 at 3). Defendant alleges that, on September 11, 2019, it terminated the lease pursuant to notice of termination to plaintiff (NYSCEF Doc. No. 11, notice of termination), based on plaintiff’s alleged default and breach of the lease for failure to make certain payments due, and failure to provide required permits (NYSCEF Doc. No. 9 at 4). Defendant contends that, as a result of the service of the notice of termination, the lease ended on October 1, 2019 (id.). Plaintiff remained in occupancy and as a result, on October 30, 2019, defendant commenced a holdover proceeding in the Civil Court, New York County to evict plaintiff from the premises (St. Giles Hotel, Ltd. v. Sylvan Hospitality Group, Index No. 71107/19 [Civil Court, NY County 2019]) (NYSCEF Doc. No. 1 at 4). Plaintiff appeared and opposed the petition, denying that it had defaulted under the lease and counterclaimed that it was defendant who had defaulted under the lease (id. at 5). The counterclaim alleged the following: “A. The Petitioner has engaged in activity which constitutes an illegal constructive eviction. B. The Petitioner has denied the Tenant the enjoyment of the Premises. C. The Petitioner has failed to act in a manner that constitutes good faith and fair dealing. D. Petitioner forced Tenant to purchase $35,000 POS system to be able to post hotel guests charges and integrate the system with the hotel’s system, and they disabled that function. E. Petitioner determined a breakfast price that was below market value to cause Tenant to lose money. F. Petitioner has sent their guests to other places and give [sic] vouchers for breakfast so they can go somewhere else and not dine with Tenant, denying Tenant the benefit of its bargain. G. Petitioner determined $3,000 booking fee for the rooftop so Tenant cannot book any events, despite that option in the lease, and has sent business to other caterers to put Tenant out of business. H. Petitioner disabled the ability of guests in the hotel to make room charges, which is a significant portion of the business. I. Petitioner has cameras that Tenant does not have access to (in the premises Tenant uses) so Tenant does not get the bargained for benefit of these services. J. Petitioner is not opening the account with Restaurant Depot so Tenant is unable to purchase the liquor at better prices and Petitioner is disparaging Tenant to liquor wholesalers so Tenant cannot buy liquor. K. Petitioner required Tenant to buy the alcohol inventory of the prior tenant, which was an Asian restaurant, so the liquor was non-salable. L. Petitioner required Tenant to buy the liquor for an adjoining premises which was illegal to do, and this liquor was largely expired and unsalable. M. Petitioner has held back accounts due Tenant. It has admitted holding $30,852 due Tenant. Tenant believes this number is low. This has been held for no reason except to starve Tenants cash flow. N. Tenant spent $1,000,000 renovating the space which Petitioner is trying to steal by throwing Tenant out after a few months of operation. O. Tenant’s principals are experienced restauranteurs, and Petitioner has deliberately undermined efforts of Tenant to build a successful brand for the term of the lease. Thus, there are damages for lost revenue for the lease term based on the undermining of the brand” (id.). Plaintiff demanded judgment on its counterclaim for $3,000,000.00, interest, attorneys’ fees, and costs of suit (id.). According to plaintiff, after several adjournments, the case was marked final for trial. At the trial date, on January 27, 2020, the case was marked “settled,” subject to a stipulation. Plaintiff alleges that the parties had agreed that defendant would either buy out plaintiff of its leasehold, or that defendant would allow plaintiff to sell its leasehold to someone else, but that the agreement was never materialized (id. at 6). Plaintiff further alleges that, despite defendant’s unilateral attempt to terminate it, the lease was never terminated, but to the contrary, was agreed to be in place because the only issue in the holdover proceeding was whether it would be settled by a buyout or sale (id. at 6). Defendant agrees that the holdover proceeding was never resolved, but alleges that, despite plaintiff’s claims that it remains the lawful tenant, the lease was, in fact, properly terminated (NYSCEF Doc. No. 9 at
