The decision is a virtual death blow to Xpressions, which has been barred from operating under a temporary injunction since 2003.
Rockaway Associates, the building’s landlord, is claiming that Hempstead Video broke its lease when it ceased operation (and stopped paying rent) and is seeking to evict the store from the premises.
Given the court’s refusal to grant Hempstead Video a “Yellowstone” injunction — a New York Supreme Court proceeding initiated by the tenant asking the court to maintain the status quo when the landlord seeks to terminate the lease — Rockaway Associates is now free to begin eviction procedures.
“It’s a step in the right direction,” Rockaway Associates attorney Mike Sullivan said. “I am cautiously optimistic that Hempstead Video will never operate at that location again.”
However, Rockaway Associates still must have a judge determine whether the company broke its lease agreement; and even if a judge sides with Rockaway Associates on that matter, Hempstead Video could delay an eviction by appealing the case to a higher court.
The eviction issue may become a moot point, however, on Feb. 6, when the state’s Supreme Court will hear arguments regarding Valley Stream’s request to permanently close the store on the grounds that it had been operating illegally from 1996 to 2002.
In 1996, Valley Stream passed a zoning ordinance called Local Law 4 that made it illegal for Hempstead Video to continue operating the store in its current location. However, Hempstead Video brokered an agreement with the town to grandfather in Xpressions under special conditions, including an agreement that the company would not operate private viewing booths on the premises.
In 2002, a former employee informed city officials that the store was operating viewing booths. Code enforcement officers quickly whacked the store with more than 450 citations and gave Hempstead Video 120 days to remove the booths, but the company took six months to do so, prompting a lower court to void the 1996 agreement.
The lower court also granted Valley Stream the temporary injunction forcing Hempstead Video to cease operations at the store. The state’s Supreme Court will decide on Feb. 6 whether to make the injunction permanent.
Ironically, the court in its ruling on the eviction issue said that if Hempstead Video’s dispute with the town had been favorably resolved, it likely would have granted the company an injunction against eviction.
The court said that, although the company appears to have grounds for an injunction, its unresolved legal dispute with the town prevented the court from granting the injunction.
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