BACKGROUND

This case arises out of an agreement, dated April 15, 2010, (the "Agreement") between plaintiff and defendant for the installation and maintenance of coin-operated laundry equipment to be used by the tenants of defendant's building, a residential building located at 2011 Ocean Avenue, Brooklyn, New York (the "Premises").

The underlying dispute arises from a clause in the Agreement which provides, in part:

SERVICE: During the term of this Lease, Lessee, at its own cost and expense will service, maintain and repair the washing machines and dryers so that the same will be in good working order. Such service, repair and maintenance will include but not be limited to replacement of worn out, broken or defective parts in said laundry room equipment. LESSE[sic] SHALL ORDINARILY REPAIR OR COMMENCE TO REPAIR ANY INDIVIDUAL PIECE OF EQUIPMENT WITHIN 24 HOURS AFTER NOTICE OF BREAKDOWN [emphasis in original].

It is not disputed that on February 6, 2013, defendant sent written notice to plaintiff, complaining that at least one machine of the four dryers and three washing machines in the building had been out of service for over a month, despite numerous calls requesting repair. In response, plaintiff made the requisite repairs. However, after experiencing additional problems with the machines, without giving any preliminary notice to plaintiff, defendant sent plaintiff a Notice to Cure dated April 8, 2013. The Notice claims that plaintiff "repeatedly and chronically failed to promptly repair the washing machines and dryers on the premises, leaving the residential tenants . . . without adequate laundry service for extended periods of time," and calls for plaintiff to cure the defect within 30 days, by May 21, 2013. According to the Notice, to cure the defect, plaintiff must "maintain all of [its] equipment in good working order at the building each and every day from the date [it receives] this letter, through the entire thirty-day cure period, as well as for the remaining term of the lease." Plaintiff claims to have received the Notice on April 15, 2013, and the next day, April 16, it visited the building to make the repairs.^[FN1] Plaintiff annexes a copy of what it characterizes is as repair confirmation report, as well as a facsimile it claims was sent to defendant's counsel on April 23, 2013, by plaintiff's counsel, confirming that the repairs had been made on April 16 and that the superintendent was instructed to immediately contact plaintiff of any further problems.

Defendant claims that by May 21, 2013, one machine was still not working and that plaintiff had not returned to the building since the April 16 visit. Accordingly, it sent a Notice of Termination of the Agreement on May 22, 2013.

By Order to Show Cause, plaintiff moves for Yellowstone injunctive relief, for a declaratory judgment that it has not breached the agreement, and attorneys' fees, costs, and expenses. Defendant cross moves to dismiss the complaint and for attorneys' fees.

Defendant claims it had the right to terminate the Agreement due to plaintiff's failure to comply with the Notice to Cure, specifically because, as of May 21, at least one machine required repair. According to defendant, "[t]he cure specified in the Notice to Cure did not simply consist of repairing one machine or making one visit to the building and resting on one's laurels," but, rather, required that plaintiff maintain all of the equipment "in good working order at the building each and every day." Defendant's argument is unavailing as the Agreement merely states that the plaintiff is responsible for maintaining the machines and requires repairs to be made within 24 hours after notice of breakdown. Nothing in the Agreement supports defendant's contention that plaintiff was required to maintain the equipment each day without prior notice of a breakdown. The Agreement further provides plaintiff 24 hours from the time notice is given to make the necessary repairs.

It is clear that, upon receiving notice of the breakdown in April, plaintiff made repairs within 24 hours. Defendant complains of chronic disrepair and claims that at least one machine remained broken as of May 21, 2013, but there is no competent evidence that any notice of this [*3]defect was provided to plaintiff, as required by the Agreement, so that plaintiff could repair it. Defendant has failed to establish the condition precedent to plaintiff's obligation to repair. Accordingly, plaintiff has not breached the Agreement, and plaintiff is granted judgment on its second cause of action for declaratory relief. Defendant's motion to dismiss is denied.

In light of the determination on the merits, whether the Agreement plaintiff purportedly breached was a license or a lease, and thus eligible for Yellowstone relief, need not be determined. It is noted, however, that defendant landlord itself consistently characterizes the Agreement as a "lease," notwithstanding its attempt to avoid a Yellowstone injunction by arguing that plaintiff is merely a licensee. Upon this Court's finding that the evidence does not establish a breach of the Agreement, defendant is enjoined from commencing a summary proceeding seeking a termination of the leasehold based upon the Notice of Termination dated May 22, 2013.

Finally, plaintiff seeks attorneys fees pursuant to a provision in the Agreement, which states that "[i]n the event that litigation or arbitration takes place in connection with this Lease, the prevailing party is entitled to costs and attorneys fees."As plaintiff has prevailed on its motion for declaratory judgment, it is entitled to reasonable attorneys' fees under the terms of the Agreement.

Defendant's motion to dismiss the complaint is denied, and plaintiff is granted a declaratory judgment that it has not breached the Agreement, as well as reasonable attorneys' fees. Plaintiff shall submit an affidavit in support of its claim for attorney's fees together with a proposed order on notice within 30 days.

This constitutes the decision and order of the Court.

E N T E R:

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HON. CAROLYN E. DEMAREST, J.S.C.