The opinion
Trummer Hospitality Holdings LLC v 287 PAS LLC
2026 NY Slip Op 30647(U)
February 21, 2026
Supreme Court, New York County
Docket Number: Index No. 157766/2024
Judge: Kathleen Waterman-Marshall
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.1577662024.NEW_YORK.001.LBLX038_TO.html[03/06/2026 3:45:34 PM]
FILED: NEW YORK COUNTY CLERK 02/24/2026 10:36 AM INDEX NO. 157766/2024
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 02/21/2026
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. KATHLEEN WATERMAN-MARSHALL PART 31
Justice
---------------------------------------------------------------------------------X INDEX NO. 157766/2024
TRUMMER HOSPITALITY HOLDINGS LLC,
MOTION DATE 01/29/2025
Plaintiff,
MOTION SEQ. NO. 002
-v-
287 PAS LLC,XYZ CORP. DECISION + ORDER ON
MOTION
Defendant.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 40, 41, 42, 43, 44,
45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 85, 91
were read on this motion to/for DISMISSAL .
Upon the foregoing documents and following oral argument on April 29, 2025, the
motion by 287 PAS LLC (“287 PAS”) to dismiss the complaint by Trummer Hospitality
Holdings LLC (“Trummer”) is granted.
Background
The Lease, the Leak, the Rent Arrears, and the Notice of Default
Trummer leased a portion of the ground floor and lower level of 287 Park Avenue South
in Manhattan pursuant to a 10-year commercial lease with 287 PAS (“the Lease”). Trummer
operated a high-end cocktail lounge in the leased space, which is situated next to and below
another tenant of the building, a restaurant named Hawksmoor.
Article 12, Section 12.01 of the Lease provided that Trummer leased the space “as is”
and that 287 PAS had no obligation to “perform any work or to make any installations to prepare
the space.” At the time Trummer took possession of the space, a wall separating Trummer’s
space from Hawksmoor was in place.
Trummer alleges that the wall separating its space from Hawksmoor is defective and
permitted water to infiltrate into Trummer’s space in December 2021, February 2022, January
2024, April 2024, and July 2024, causing mold. Trummer withheld rent following the July 2024
leak, contending that the mold required substantial remediation and constructively evicted it
from the space. It alleged that its business closed following the July 2024 leak, although
Trummer appeared to be back in business in early 2025.
On August 20, 2024, 287 PAS served a Notice of Default upon Trummer, demanding
immediate payment of outstanding rent in the sum of $34,324.39.
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Motion No. 002
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The Litigation
On August 22, 2024, Trummer commenced this action against 287 PAS to recover
damages claims for quiet enjoyment, negligent hiring/supervision of contractors, constructive
eviction, unjust enrichment, and negligent property damage alleged to be caused by the defective
wall and consequent leak. Simultaneously with the filing of the complaint, Trummer moved, by
order to show cause, for a Yellowstone injunction, or, in the alternative, a preliminary injunction
enjoining 287 PAS from commencing any commercial landlord tenant action to terminate
Trummer’s lease based upon the August 20, 2024 Notice of Default.
On August 26, 2024, the prior jurist (Nock, J.) granted the temporary injunction,
apparently without a hearing and without requiring Trummer to post a bond or pay use and
occupancy (NYSCEF Doc. No. 12; “the August 2024 Order”).
On January 29, 2025, 287 PAS filed the instant motion to dismiss the complaint upon the
grounds that it fails to state a cause of action and the documentary evidence otherwise
conclusively establishes that 287 PAS has a defense to the claims, as a matter of law. It then, in
April 2025, moved to reargue the August 2024 Order granting Trummer a temporary injunction,
and upon reargument, vacating the August 2024 Order.
This Court conducted oral argument on April 29, 2025 on all of the pending motions
(Trummer’s request for an injunction, 287 PAS’ request for dismissal and vacatur of the
injunction). By Decision and Order dated May 2, 2025 (NYSCEF Doc. No. 92, 93), this Court,
inter alia, denied Trummer’s motion for a preliminary injunction, granted 287 PAS’ motion to
reargue, and vacated the August 2024 Order. Thus, as of May 2, 2025, 287 PAS was free to
commence a commercial landlord/tenant action against Trummer in Civil Court, New York
County for non-payment of rent, and so it apparently did in or about June of 2025: 287 PAS LLC
v TRUMMER HOSPITALITY HOLDINGS LLC, Index No. LT-310401-25/NY (“the L&T
Action”).
However, before the Court issued its Decision and Order on 287 PAS’s instant motion to
dismiss the complaint, Trummer filed a “Suggestion of Bankruptcy & Notice of Automatic Stay”
on August 26, 2025 (NYSCEF Doc. No. 98). All proceedings in this matter were thus promptly
stayed.
Things proceeded in the Bankruptcy Court apace. On November 7, 2025, Chief United
States Bankruptcy Judge Martin Glenn issued a Stipulation and Consent Order (NYSCEF Doc.
No. 99; “the Consent Order”), which effectively terminated the subject Lease and the L&T
Action. In pertinent part, the Consent Order provides that the subject “Lease is deemed
terminated as of June 3, 2025”; the automatic stay “as regards to the Landlord is hereby
terminated with respect to (i) the Lease, (ii) the Premises, and (iii) [the L&T Action]”; Trummer
shall surrender possession of the Premises on or before November 17, 2025 at 12:00 p.m. (the
Surrender Date); Trummer “waives any right of redemption of the Lease that it may have
possessed” and “shall withdraw its Answer and its Motion to Dismiss or Stay Civil Court
Proceedings in the L&T Action.”
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The Consent Order does not expressly address the instant action but reserves for the
parties “all rights with respect to all other issues under the Lease not otherwise addressed”
therein. Ostensibly, this reservation of rights applies to Trummer’s claims in this action to
recover monetary damages, as those damages arise out of the Lease and the leasehold
relationship. Since the Consent Order terminates the automatic stay with respect to the Lease, it
follows that the stay is lifted on this action and this Court may now address 287 PAS’ motion to
dismiss the complaint.1
Discussion
On a motion to dismiss, the complaint should be liberally construed, the facts presumed
to be true, and the pleading accorded the benefit of every possible favorable inference (Leon v
Martinez, 84 NY2d 83 [1994]). “Under CPLR 3211(a)(1), a dismissal is warranted only if the
documentary evidence submitted conclusively establishes a defense to the asserted claims as a
matter of law” (id. at 88 citing Heaney v Purdy, 29 NY2d 157 [1971]). “When evidentiary
material is considered, the criterion is whether the [plaintiff] has a cause of action, not whether
[they] have stated one” (Guggenheimer v Ginzburg, 43 NY2d 268 [1977]). Under CPLR §
3211(a)(7) to dismiss for failure to state a claim, the motion must be denied if, from the four
corners of the pleadings, “factual allegations are discerned which taken together manifest any
cause of action cognizable at law” (Polonetsky v Better Homes Depot, 97 NY2d 46, 54 [2001]
[internal quotation omitted]). A complaint should not be dismissed so long as, “when the
plaintiff’s allegations are given the benefit of every possible inference, a cause of action exists,”
and a plaintiff may cure potential deficiencies in its pleading through affidavits and other
evidence (R.H. Sanbar Projects v Gruzen Partnership, 148 AD2d 316, 318 [1st Dept 1989]).
However, bare legal conclusions and factual allegations which are inherently incredible or
contradicted by documentary evidence are not presumed to be true (Mark Hampton, Inc. v
Bergreen, 173 AD2d 220 [1st Dept 1991]).
A CPLR 3211(a)(7) motion may be used by a defendant to test the
facial sufficiency of a pleading in two different ways. On the one
hand, the motion may be used to dispose of an action in which the
plaintiff has not stated a claim cognizable at law. On the other
hand, the motion may be used to dispose of an action in which the
plaintiff identified a cognizable cause of action but failed to assert
a material allegation necessary to support the cause of action. As to
the latter, the Court of Appeals has made clear that a defendant can
submit evidence in support of the motion attacking a well-pleaded
cognizable claim.
When documentary evidence is submitted by a defendant “the
standard morphs form whether the plaintiff has stated a cause of
action to whether it has one. As Alleged here, if the defendant’s
evidence establishes that the plaintiff has no cause of action (i.e.,
that a well-pleaded cognizable claim is flatly rejected by the
documentary evidence) dismissal would be appropriate.
1
Indeed, counsel for Trummer reached out to this Court requesting a decision on the instant motion to dismiss given
the absence of a stay on these proceedings.
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(Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 AD3d 128, 134-135 [1st
Dept 2014] [Renwick, J.] [internal citations omitted]).
At the outset, Trummer’s argument that the motion must be denied as lacking affidavits
by individuals with personal knowledge is without merit. Supporting proof may be considered
when placed before the Court via an attorney’s affidavit annexing the documentary evidence
relied upon (Olan v Farrell Lines Inc., 64 NY2d 1092 [1985]; Weingarten v Marcus, 118 AD2d
640 [2d Dept 1986]).
I. Quiet Enjoyment
Trummer’s first cause of action for breach of the covenant of quiet enjoyment is
dismissed. A claim for breach of quiet enjoyment requires that the landlord “substantially and
materially deprive the tenant of the beneficial use and enjoyment of the premises” (Jackson v
Westminster House Owners Inc., 24 AD3d 249, 250 [1st Dept 2005]). In order to assert the
claim, the tenant must perform the conditions precedent under the lease, including the payment
of rent (Dave Herstein Co. v Columbia Pictures Corp., 4 NY2d 117, 121 [1958]). It is
undisputed that Trummer has not paid rent under the Lease and, at the filing of this motion on
January 29, 2025, owed more than $300,000 in unpaid rent. Accordingly, the breach of quiet
enjoyment claim cannot be maintained and is dismissed.
II. Negligent Hiring/Supervision & Property Damage
Trummer’s second and fifth causes of action (negligent hiring/supervision and property
damage) are dismissed. Trummer alleges that 287 PAS, as landlord, owed a duty of care to
Trummer which was breached by the negligence of 287 PAS’ contractors. Presumably, Trummer
is referring to construction of the wall separating its rented space from Hawksmoor – although
the complaint itself does not specify the construction alleged to have been negligently
supervised.
However, it is undisputed that the wall separating Trummer’s and Hawksmoor’s leased
spaces had been constructed prior to Trummer leasing the space and that Article 12 Section
12.01 of the Lease expressly provided that Trummer leased the space “as is.” Thus, any claim
that the wall was negligently constructed, that Trummer negligently oversaw the construction of
the wall, or that water damage was caused by the construction of the wall was expressly waived
by Trummer under the Lease and must be dismissed (Basis Yield Alpha Fund (Master), 115
AD3d at 134-135).
Similarly, Article 8 of the Lease absolves 287 PAS for damages caused by other tenants.
On this precise issue, Trummer’s own engineer’s report refutes its conclusory allegation that 287
PAS caused the water infiltration; that report contends that the source of the water infiltration is
Hawksmoor’s ejector/sump pump. Notably, Trummer sued Hawksmoor for the same flooding
damage approximately seven months before bringing this action (NY County Index No.
150315/2024). It has long been established that where the condition/fixture is within the sole
control of the tenant, the landlord is not responsible (see e.g. Cosgrove v State, 277 AD 596 [3d
Dept 1951]; Leonard v Gunther, 47 AD 194 [3d Dept 1900]). Trummer’s complaint does not
allege that 287 PAS has control over the ejector/sump pump or any portion of Hawksmoor’s
leased space which caused the flooding, or that it controlled the contractors performing any work
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related to the ejector/sump pump. Accordingly, the second and fifth causes of action are
dismissed.
III. Constructive Eviction
Trummer’s third cause of action for constructive eviction is also dismissed. Continued
occupancy of a premises precludes a claim for constructive eviction; the tenant must abandon the
premises (Barash v Penn. Term. Real Estate Corp., 26 NY2d 77, 83 [1970]). Although Trummer
alleges it could not use the premises for a period of time, it is undisputed that Trummer did not
abandon the premises and had resumed operating its business at the premises prior to the April
29, 2025 oral argument of this motion.
Additionally, Article 8.01 of the Lease provides that damage caused by other tenants or
latent defects in the building shall not constitute a constructive eviction or entitle Trummer to a
rent abatement. Trummer’s own engineering reports identify that the leak was caused by
Hawksmoor’s ejector/sump pump. Therefore, as Trummer’s own evidence shows the leak was
caused by another tenant, and not 287 PAS, Article 8.01 of the Lease requires Trummer to
continue to pay rent and prohibits a claim of constructive eviction. Accordingly, the claim for
constructive eviction is dismissed.
IV. Unjust Enrichment
Trummer’s fourth cause of action unjust enrichment is dismissed. The parties’
relationship and subject matter of claims asserted in this action are governed by an express
contract; thus, Trummer’s quasi-contract claim for unjust enrichment must be dismissed
(McMorrow v Angelopoulos, 113 AD3d 736 [2d Dept 2014]; Dabrowski v Abax, Inc., 64 AD3d
426 [1st Dept 2009]).
V. Mootness
Given that the Consent Order issued in the Bankruptcy Court provides that Trummer
would vacate and surrender the premises by November 17, 2025, waived any right of redemption
of the lease, and that Trummer would not seek to remain in possession after the surrender date,
the instant action is largely, if not entirely, moot.
Accordingly, it is
ORDERED that 287 PAS LLC’s motion to dismiss the complaint of Trummer
Hospitality Holdings LLC is granted and the matter is dismissed.
2/21/2026
-/!_~~~,-~
DATE KATHLEEN WATERMAN-MARSHALL,
J.S.C.
□ ~ ~
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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