Landlord and Tenant - Summary Proceedings - Legislation Affecting Holdover Eviction Proceeding between Nonprofits - Use of Armory by Legacy Cadet Corps Programs

Rosenberg & Estis, P.C., New York City (Michael Pensabene, John Amato and Peter Kane of counsel), for petitioner.

Himmelstein McConnell Gribben & Joseph LLP, New York City (David Hershey-Webb of counsel), and Howard Moss Rogatnick, New York City, for The Knickerbocker Greys, respondent.

The decision/order of the court is as follows:

By this proceeding, petitioner, an organization formed to preserve a local armory of well over 100,000 square feet of usable{**88 Misc 3d at 438} space, seeks to evict respondent children's organization from a few hundred square feet of space that the parties do not dispute that respondent has enjoyed use of since 1902.^[FN1] The parties came to this action disputing relatively few facts, and dispute even less following the conclusion of discovery. In motion sequence Nos. 004 through 006, the parties each seek dispositions in their respective favors. In the manner and for the reasons set forth below, the court grants each of the respective motions in part and denies them each in part pursuant to CPLR 3212 (g), and finds that a trial on the narrow factual question of petitioner's interference claim is necessary to resolve this proceeding.

This proceeding is the apparent end product of nearly two decades of discord involving two executive organs of the State, and a nonprofit conservatory with both a common-law mandate to act for public good and a contractual mandate to support "interpretive and/or educational programs related to the social aesthetic and military history of the building [at issue] and other topics to the extent practicable," unable or unwilling to resolve the use by another nonprofit operating the nation's oldest after-school educational program from that space for over 120 years of less than a thousand square feet in a building occupying an entire city block. (Master lease, exhibit K, NY St Cts Elec Filing [NYSCEF] Doc No. 59 at K-1.)

The parties' dispute arises from petitioner's 2006 occupancy of the historic Seventh Regiment Armory, pursuant to a 99-year lease from the State. (Affirmation in support §§ 4-5.) Although petitioner asserts that respondent Knickerbocker Greys "do not have (and never had) any occupancy rights to the subject premises, other than through an expired license that has nevertheless been revoked and terminated," petitioner also notes that the New York State Division of Military and Naval Affairs had "allowed" respondent use of space in the premises prior to petitioner's leasehold, and the parties do not dispute that respondent has occupied space in the premises since 1902. (Affirmation in support §§ 3, 23; tr at 21-22.) Petitioner argues that their lease granted them an unencumbered leasehold over{**88 Misc 3d at 439} all relevant portions of the Seventh Regiment Armory, and that petitioner granted respondent a series of licenses, which have expired. (Affirmation in support §§ 5-9.) While respondent agrees that the purported licenses have expired, respondent disagrees that the licenses themselves govern. As respondent points out, petitioner's own "existing physical conditions assessment" of the Armory, based upon a July 1999 site inspection (itself made an exhibit to petitioner's master lease), notes several "military purposes and ancillary functions," which have "historically been housed and/or continue to operate" at the time, including "rooms reserved for the private use of the Knickerbocker Greys and other armory constituents." (Master lease, exhibit N-1, NYSCEF Doc No. 69 at 52-53, 63.) Amongst other documents respondent offers in support of their position is a 2022 letter from Senator Liz Krueger to petitioner's president recounting a 2006 meeting between the Senator, her staff, and petitioner's president, stating:

"Meeting notes taken by my Deputy Chief of Staff from our discussions in 2006 when the Armory was transitioning to becoming a leader in arts programming refer to the following assurance that you provided at that time:

" 'Finally, I was told the Conservancy views the organizations currently using the Armory, including the Knickerbocker Greys, as an "integral part of the tradition and future of the Armory." '

"My belief in the Armory serving as the Knickerbocker [Greys'] permanent home has not changed. I sincerely trust the commitment expressed and shared by the Conservancy has remained the same as well." (Letter by Senator Krueger to Rebecca Robertson dated Apr. 4, 2022, NYSCEF Doc No. 122 at 1.)

Petitioner subsequently commenced this holdover proceeding to evict respondent.

By decision and order dated March 12, 2024, the court (Johnson, J.) denied the parties' respective motion and cross-motion (mot seq Nos. 002, 003) on the issues presently [*3]before the court, with leave to resubmit upon the conclusion of discovery. The parties having now completed discovery, again both seek summary judgment.

During the pendency of this proceeding, the Legislature passed, and the Governor signed, Laws of 2024, chapter 659,{**88 Misc 3d at 440} entitled "An act . . . authorizing the use of armories by legacy cadet corps programs." The stated purpose of the bill could not be clearer, stating that it is to "provide a legacy cadet corps program with meeting space and event space at a regimental armory which they have resided in." (Assembly Mem in Support of 2024 NY Assembly Bill 7686A, enacted as L 2024, ch 659.) In finding that "[c]adet corps have a special historical value in the development and expression of New York City's culture and heritage," that "have existed for many decades," and that "[j]unior cadet corps for (children) have helped bring discipline, comradery, and education to countless generations of New York City's youth," while having "remained at the same location since their creation, adding a rich and important cultural institution to many New York City neighborhoods," chapter 659's sponsor noted that "[s]ince the COVID pandemic, there have been attempts to evict these cadet corps from their long-standing locations," and "[c]ombating these evictions" had attracted the Legislature's attention. (Id.) In the face of those eviction efforts, the sponsor noted that "[p]reserving the ability of cadet corps programs to operate out of their long-standing locations is in the interest of keeping cultural and historical institutions within New York City intact and in their neighborhoods." (Id.)

As defined, a legacy cadet corps program is "a cadet corps or organized militia program that has accessed or used a regimental armory located within a city that has a population of over one million people for over one hundred years during periods which are not periods of civil or military emergency," which the parties do not seriously dispute (and the court expressly finds for purposes of this decision) includes respondent. (L 2024, ch 659, § 1, adding Military Law § 180-a [1] [l].) "On application of . . . a legacy cadet corps program . . . the lessee or the manager pursuant to the terms of the management agreement shall provide a proper and convenient room or rooms or other appropriate space in the armory" for the organization to "hold regular and special meetings and organizational social events of a private nature, without the payment of any charge or expense therefor, provided that such use does not interfere with the use by the lessee or the manager pursuant to the terms of the management agreement." (L 2024, ch 659, § 3, amending Military Law § 180-a [3] [c] [i] [emphasis added].) Pursuant to chapter 659, upon a finding by the New York State Urban Development Corporation (also known as Empire State{**88 Misc 3d at 441} Development) that a group is a legacy cadet corps program (based upon criteria set by statute), such group is entitled to a separate negotiated agreement governing their use of armory space, which "shall be sufficient and suitable space for the current and uninterrupted operation, provided that it is no less than twelve hundred square feet for their headquarters." (L 2024, ch 659, § 3, amending New York State Urban Development Corporation Act § 39 [b]; § 2, adding Military Law § 180-a [3] [f].)^[FN2]

Petitioner has argued that chapter 659 is not relevant to this proceeding. Petitioner also argues that, even if relevant, the meaning of chapter 659 is ambiguous in that the statutory text does not require petitioner to provide respondent use of the space it has occupied since 1902 or any specific area within the Armory space at all and that any specific obligation is derived from respondent's "interpretation of the law," rather than the text itself. (Letter, NYSCEF Doc No. 115 at 1.) In fact, petitioner argues, the area provided to respondent should not come from the petitioner's approximately 100,000 square feet of space at all, but rather, the 1,200 square feet of space to be allotted to the respondent should come from the space allocated for use as a women's homeless shelter or the small portion allocated to the Division of Military and Naval Affairs. (Tr at 4.) Accordingly, petitioner argues, "nothing in the Legislation precludes Petitioner from evicting Respondent from the [area within the petitioner's space currently used by respondent]." (Letter, NYSCEF Doc No. 133 at 1.) Petitioner's arguments are unavailing.

The court is guided by the bedrock "fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature." (Matter of New York State Land Tit. Assn., Inc. v New York State Dept. of Fin. Servs., 169 AD3d 18, 28 [1st Dept 2019].) The First Department has long been clear that in interpreting statutes, "the spirit and purpose of the act and the objects to be accomplished must be considered and{**88 Misc 3d at 442} given effect, and the literal meanings of words are not to be adhered to or suffered to defeat the general purpose and manifest policy intended to be promoted." (Matter of Turner v Department of Fin. of City of N.Y., 242 AD2d 146, 147 [1st Dept 1998]; see also People v Vespucci, 144 AD2d 48, 55 [2d Dept 1988] [director of the Organized Crime Task Force could apply for eavesdropping warrants because "literal construction" of a statute is inappropriate when it "circumscribes its application" and "fails to meaningfully incorporate as guiding criteria the policy objectives sought to be achieved by Congress in utilizing the statutory term" (citations omitted)], affd 75 NY2d 434 [1990], cert denied 498 US 814 [1990]; King v Burwell, 576 US 473, 493 [2015] [cautioning that courts should not interpret "statutes to negate their own stated purposes" in interpreting the Patient Protection and Affordable Care Act], quoting New York State Dept. of Social Servs. v Dublino, 413 US 405, 419-420 [1973].)

Contrary to petitioner's assertions, chapter 659 is clearly and unambiguously relevant to this proceeding. The Legislature was distinctly aware of this proceeding when it considered chapter 659, as the supporting memorandum itself noted that "[c]ombating these evictions" had attracted the Legislature's attention. (Assembly Mem in Support of 2024 NY Assembly Bill 7686A, enacted as L 2024, ch 659.) Indeed, petitioner conceded at argument that the Legislature was aware. (Tr at 5.)

Further, even assuming arguendo that the Legislature's language in chapter 659 was "ambiguous or inartful" (which the court does not agree it is), courts have been quite unambiguous that "clear legislative intent" is the guiding star. (Bogom-Shanon v Altman, 85 Misc 3d 1100, 1104 [Civ Ct, NY County 2024] [collecting cases].) Here, it is abundantly apparent that the Legislature intended to halt petitioner's eviction efforts against respondent with the enactment of chapter 659, and petitioner's concern about effects upon its stated goals for the [*4]Seventh Regiment Armory "did not trouble the Legislature." (Brian Krist, Sealing the Bawdy House Door Open: An Examination of Unintended Consequences of Decriminalization and Sealing Statutes Upon Bawdy House Eviction Proceedings, 48 NY Real Prop L J [No. 2] 27, 28 n 12 [spring/summer 2020].) The operative question then is whether the Legislature could do as it intended. The court finds that it could.{**88 Misc 3d at 443}

Chapter 659 does not constitute a taking on the facts presented.

Petitioner's objection that respondent's "interpretation of the law leads to an absurd and unconstitutional result," and that the State "cannot, by act of legislation alone, lawfully condemn petitioner's leasehold interest and then grant it to another party," misses the mark. (Letter, NYSCEF Doc No. 115 at 2.) Rather, the parties essentially argue whether petitioner ever had an unencumbered contractual expectation to the space occupied by respondent. Although that alternatively would have created factual questions necessitating a trial (and foreclosing summary judgment in favor of petitioner in any event), the court finds that an actual resolution of that question is not necessary here because the Legislature's enactment of chapter 659 is entirely in keeping with petitioner's contract with the State of New York to support "interpretive and/or educational programs related to the social aesthetic and military history of the building," precisely because respondent is an "educational program" and part of the "military history of the building." (Master lease, exhibit K, NYSCEF Doc No. 59 at K-1.)

The plain text of petitioner's agreement with the State shows that the Legislature was empowered to consider whether petitioner should be "polishing the plaques of dead Greys, while kicking out the live ones," and that "[t]he sacrifices members of the Greys have made have been a part of this building's history longer than anyone currently alive," in considering the policy questions underlying chapter 659 and the contractually-mandated use of the armory to promote "educational programs related to the social aesthetic and military history of the building . . . to the extent practicable," pursuant to the master lease itself. (Daisy Levine, 'It's a Disgrace'—Bores, Krueger Support Bill to Help Youth Cadet Group Retain Armory Home, Our Town, May 26, 2024 [quoting sponsoring Assemblymember Bores regarding what is now chapter 659]; master lease, exhibit K, NYSCEF Doc No. 59 at K-1.)^[FN3] Petitioner may disagree with the legislative outcome, but that is beyond the court's remit;{**88 Misc 3d at 444} petitioner's relief lies in the Capitol not the courthouse. (See Isaly v Garde, 83 Misc 3d 379, 383 [Sup Ct, NY County 2024] [collecting cases and noting that the court is "bound to apply the law as it exists, and as interpreted by controlling . . . precedents, and cannot usurp the role of the legislature or the Appellate Courts" (internal quotation marks omitted)], stay denied 2024 NY Slip Op 71498[U] [1st Dept 2024].)

The parties' license agreements cannot waive the State's stated interest.

Petitioner's other argument—that respondent disclaimed any other right or interest in the space at issue than that created by their license agreements—is also unavailing. (Affirmation in support[*5]¶¶ 6-7.) Even accepting that petitioner apparently sought, and respondent agreed to provide, respondent's waiver of any interests in the premises from any other source than the parties' license agreement, the court cannot enforce such a waiver. New York law is clear that the court may not as a general matter enforce contractual terms contrary to the public policy of the State, even in the face of the parties' apparent agreement. In particular, the Court of Appeals has long noted that "a party cannot in advance, make a valid promise that a statute founded in public policy shall be inoperative," especially terms which are likely to have been "the result of ignorance, improvidence, an unequal bargaining position or was simply unintended." (John J. Kassner & Co. v City of New York, 46 NY2d 544, 551 [1979] [internal quotation marks omitted].) That should be particularly true here where petitioner is a nonprofit charitable organization specially created and required to act in the public interest, as the Court of Appeals has long noted that "[a] corporation organized in the public interest, with a view to the public welfare, and in the expectation of benefit to the community, which is the motive of the State's grant, may accept the franchise," remains subject to scrutiny as to whether it works in the public interest. (People v North Riv. Sugar Ref. Co., 121 NY 582, 620 [1890]; see also Abrams v Richmond County S.P.C.C., 125 Misc 2d 530, 533 [Sup Ct, Richmond County 1984] [status as a charitable organization "confers a public benefit and therefore the institution must demonstrably serve and be in harmony with the public interest"].) That respondent is also a charitable organization subject to the same questions the Court of Appeals noted in John J. Kassner & Co. and North Riv. Sugar Ref. Co. amplifies the public interest in the parties' agreements.{**88 Misc 3d at 445}

Here, petitioner offered contractual terms in its license agreements with respondent (at the very least in their enforcement) that may contradict the terms of the master lease, and assuredly (and more importantly) contradict the Legislature's clear intent in the matter at hand. Simply put, respondent's alleged waiver of any claimed right or privilege to occupy space in the Armory was beyond petitioner's remit to seek from respondent and, even if the parties believed they could enter into such an agreement, their mutual mistake as to petitioner's authority in this area nullifies their agreement. (See e.g. Lanzetta v Shleppers Holdings, LLC, 2023 NY Misc LEXIS 31598, *2 [Civ Ct, Bronx County, Sept. 14, 2023, No. SC-000628-23/BX, Rep of Arbitrator] [noting that "fraud, coercion, or mistake in the formation of contract entered into by two consenting parties" of such gravity that it prevented the parties from coming to a meeting of the minds excuses performance (emphasis added)].)^[FN4] Moreover, the Legislature's intervention extinguished petitioner's ability to enforce that [*6]term. (See e.g. United Calendar Mfg. Corp. v Huang, 94 AD2d 176, 180 [2d Dept 1983] ["The denial of relief to the plaintiff in such a case is not based on any desire of the courts to benefit the particular defendant. . . . What is important is that the policy of the law be upheld"]; Metpath, Inc. v Birmingham Fire Ins. Co. of Pa., 86{**88 Misc 3d at 446} AD2d 407, 411 [1st Dept 1982] ["There is ample authority holding that where performance becomes impossible because of action taken by government, performance is excused"].)

That executive agencies of the State may have supported petitioner's position during various times in the course of the parties' dispute does not alter the public interest analysis either. (See People v Grasso, 42 AD3d 126, 142 [1st Dept 2007] [noting that what the Executive "perceives to be the interest of the state cannot trump contrary determinations about the public interest made by the Legislature"].) Indeed, the Court of Appeals has affirmed whether the Legislature's power in this area is waivable at all. (Levine v Long Is. R. R. Co., 38 AD2d 936, 938 [2d Dept 1972], affd 30 NY2d 907 [1972], cert denied 409 US 1040 [1972].) The clear intent of the Legislature in permitting respondent's continued use of the premises as a matter of public policy governs here, regardless of petitioner's apparent desire for the space or the Executive's transient support of petitioner's position.

Factual questions remain as to petitioner's claim of interference.

Summary judgment is, as often said, "a drastic remedy" and one of issue identification rather than issue resolution. (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978] [internal quotation marks omitted].) In that vein, "[s]ummary judgment should not be granted where there is any doubt as to the existence of a triable issue." (Manufacturers & Traders Trust Co. v Cottrell, 71 AD2d 538, 543 [4th Dept 1979], citing Rotuba Extruders.) Petitioner asserts that evicting respondent from all space subject to petitioner's lease is necessary "to further its public goals," and that petitioner's planned work "cannot take place until the Conservancy is in possession of the subject Premises." (Affirmation in reply ¶ 5.) Arguably, that would constitute a basis to grant petitioner possession of the approximately one half of one percent of the space of the Armory respondent occupies, as chapter 659 entitles respondent to "a proper and convenient room or rooms or other appropriate space in the armory," for the organization to "hold regular and special meetings and organizational social events of a private nature, without the payment of any charge or expense therefor, provided that such use does not interfere with the use by the lessee or the manager pursuant to the terms of the management agreement." (L 2024, ch 659, § 3, amending {**88 Misc 3d at 447}Military Law § 180-a [3] [c] [i] [emphasis added].) Thus, the court finds pursuant to CPLR 3212 (g) that a trial on the limited question of whether respondent's occupancy of its present space in the Armory interferes with petitioner's use of the Armory pursuant to their [*7]master lease from the State.^[FN5]

Much of petitioner's prayer for relief lies in the Capitol following the Legislature's unequivocal determination as the policymaking branch of the government in reflecting the common will and not before the court. Limited questions do remain however, and the parties will proceed to resolve them.^[FN6]

Accordingly, it is ordered that the parties' respective motions and cross-motions marked as motion sequence Nos. 004 through 006 are each granted in part and denied in part pursuant to CPLR 3212 (g) in accordance with this opinion.