285 West Broadway Associates Limited Associates v. Interactive Sports, Inc.
(Civil Court of the City of New York, New York County, April 25, 2001)
We represented: Owner/landlord
Debra Rose Samuels:
DECISION and ORDER
Upon the foregoing papers, the Decision/Order on this motion and cross-motion for summary judgment is as follows:
For the reasons stated below, Petitioner's motion for summary judgment dismissing Respondent's affirmative defenses and counterclaims and awarding Petitioner a possessory judgment on its claims for rent, additional rent and attorneys' fees, and for leave to amend its Complaint to reflect all rent and additional rent due through the date of submission of this motion, is granted, and Respondent's cross-motion for summary judgment dismissing the Petition is denied.
The First Affirmative Defense alleges lack of jurisdiction due to Petitioner's alleged failure to make a proper rent demand. Respondent did not elaborate in its Answer and has not done so in its papers on this motion. The rent demand appears proper on its face. Accordingly, this defense is dismissed. 1
The Second Affirmative Defense asserts that the Petition seeks stale rent and "additional rent" to which Petitioner is not entitled. Respondent did not elaborate in its Answer and has not done so in its papers on this motion. The "stale rent" or "laches" defense is applicable only in residential nonpayment actions, and thus not in this case, which involves a commercial tenancy. Ubo Realty Corp. v. Fulton, 21 HCR 446A, N.Y.L.J., 9/8/93, p. 21, col. 1 (A.T. 1st Dep't 1993). Accordingly, this defense must be dismissed.
The Third Affirmative Defense is based on the alleged failure of the Petition to state a cause of action. As the allegations contained in the Petition plainly make out the elements of a cause of action for rent unpaid after due demand, this defense must be dismissed.
The Fourth Affirmative Defense asserts that the Petition fails to comply with the requirements of RPAPL Section 741, which sets forth the required contents of a Petition in a summary proceeding. Respondent did not elaborate in its Answer and has not done so in its papers on this motion, except to the extent that it intended to do so by pointing out that Petitioner had not supported the Petition's allegation that Petitioner is the net lessee of the building by furnishing a copy of the net lease as an exhibit either to the Petition or to its papers on this motion. That omission is not fatal to Petitioner's case, however, as Petitioner has tendered the 1996 lease between the parties and the 1998 letter agreement extending that lease, on modified terms, through August, 2001 (together, "the Lease") — thus establishing the existence of a landlord/tenant relationship between Petitioner and respondent. Petitioner, by stating that it is the net lessee of the building, has stated the nature of its interest in the building, as required by RPAPL Section 741. If Respondent had, on this motion, offered evidence disputing that allegation, Petitioner would have raised a triable issue of fact regarding the Petition's compliance with RPAPL Section 741. But, having proved the landlord/tenant relationship, Petitioner is not required to offer further evidence in support of the sworn allegation that it is the net lessee of the building. As the court explained in Ferber v. Salon Moderne, 174 Misc.2d 945, 668 N.Y.S.2d 864, (A.T. 1st Dep't 1997), "Where the tenant has defaulted in the payment of rent pursuant to the agreement under which the premises are held, a summary proceeding may be brought by the 'landlord or lessor' (RPAPL Section 721, subd. 1; Section 711, subd. 2). Questions of title or ownership are not litigated in summary proceedings [citations omitted]." 668 N.Y.S.2d at 865. Accordingly, this defense must be dismissed.
The Fifth Affirmative Defense alleges that the amount of rent demanded in the Petition is not correct. Respondent has not elaborated in its Answer or in its papers on this motion. Since Petitioner has offered sworn testimony that the amount is correct and Respondent has not offered evidence disputing that assertion, this defense must be dismissed.
The Sixth Affirmative Defense is based on "laches, waiver and/or estoppeI." The inapplicability of the laches defense was addressed above in discussing the Second Affirmative Defense. As Respondent has not elaborated on its waiver or estoppel claims in either the Answer or its papers on this motion, this defense must be dismissed.
The Seventh Affirmative Defense alleges that the leased premises "are not safe or fit to be used for the purposes for which they were intended to be used." Respondent has not elaborated, either in its Answer or in its papers on this motion. Moreover, a commercial landlord's breach of its duties under the lease does not relieve a tenant of the obligation to pay rent, so long as the tenant remains in possession. Towers Organization, Inc. v. Glockhurst Corporation, N.V., 160 A.D.2d 597, 554 N.Y.S.2d 242, 244 (1st Dep't 1990); Earbert Restaurant, Inc. v. Little Luxuries, Inc., 99 A.D.2d 734, 472 N.Y.S.2d 359, 360 (1st Dep't 1984). Respondent, although it has pled "partial constructive eviction" (in its Twelfth Cause of Action/First Counterclaim), has offered no evidence that it has abandoned any or all of the premises. Finally, Respondent has not alleged (and Petitioner has offered a sworn denial) that it ever gave Petitioner notice of any such conditions, as required under the Lease. Accordingly, this defense must be dismissed.
The Eighth Affirmative Defense asserts that the Petition is defective because it was not signed by counsel, as required by Rule 130-1.1(a) of the Rules of the Chief Administrator. The Court finds that the verification attached to the Petition, signed by counsel, is sufficient to meet that requirement. Accordingly, this defense must be dismissed.
The Ninth Affirmative Defense alleges lack of jurisdiction due to improper service of Petitioner's predicate notice. Respondent has offered two bases for this allegation: (1) that the alleged delivery to a "person of suitable age and discretion" employed at the leased premises pursuant to RPAPL Section 735(1) 2 was insufficient because the person to whom delivery was made was not "authorized" to receive service of process; and/or (2) that the follow-up mailing by certified mail, return receipt requested, did not meet the statute's requirement of a mailing "by registered or certified mail." But RPAPL Section 735 does not require that the recipient be "authorized" to receive service. Respondent is confusing this statute, governing summary proceedings, with CPLR 311(1), which sets forth the manner in which personal service upon a corporation may be affected in other types of actions. As for Respondent's second argument, "Petitioner's decision to purchase a return receipt in addition to the certified mailing does not vitiate the certified mailing. . . Requesting the receipt does not transform either certified mail or registered mail into a different class or form of mail, and therefore does not depart from the statutory language." Columbus Properties, Inc. v. ISKS Realty Corp., 163 Misc.2d 446, 621 N.Y.S.2d 277, 279 (Civ. Ct. N.Y.Co. 1994). Accordingly, this defense must be dismissed.
The Tenth Affirmative Defense asserts that "Petitioner has failed to serve the Respondent-Tenant with the preliminary notices required to be served under the subject lease agreement and therefore the real estate taxes and other additional rent(s) demanded herein are not due and owing." Petitioner has alleged in its supporting affidavits that all required notices regarding additional rent were duly served, and Respondent has offered no sworn denial of this allegation. Accordingly, this defense must be dismissed.
The Eleventh Affirmative Defense alleges lack of jurisdiction due to improper service of the Notice of Petition and Petition. The only bases for this allegation offered by Respondent are those discussed above with respect to the Ninth Affirmative Defense's allegation of improper service of the predicate notice. Accordingly, as discussed above, this defense must be dismissed.
The Twelfth Affirmative Defense/First Counterclaim is based on the alleged existence, at the leased premises, of "conditions dangerous to life, health and safety" that caused Respondent to be "partially constructively evicted." Respondent did not elaborate in its Answer and has not done so in its papers on this motion. Based on that lack of particularity, this counterclaim must be dismissed. For that same lack of particularity, as well as for the reasons given above for dismissal of the Seventh Cause of Action, this defense must be dismissed.
The Thirteenth Affirmative Defense/Second Counterclaim is based on Petitioner's alleged breach of the covenant of quiet enjoyment. Respondent did not elaborate in its Answer and has not done so in its papers on this motion. In addition to that lack of particularity and Respondent's failure to give notice of unsatisfactory conditions (discussed above in connection with dismissal of the Tenth Affirmative Defense), a tenant may not maintain an action for breach of the covenant of quiet enjoyment unless it has performed all of its obligations under the lease, including the payment of rent (which Petitioner alleges, without contradiction, Respondent has not done). Accordingly, this defense/counterclaim must be denied.
The Third Counterclaim alleges that the value of the premises was reduced by Petitioner's failure to make repairs and provide all services called for under the Lease. Respondent did not elaborate in its Answer and has not done so in its papers on this motion. Based on both that lack of particularity and Respondent's failure to give the required notice of such alleged conditions (as discussed above in connection with the dismissal of the Tenth Affirmative Defense), this counterclaim must be dismissed.
The Fourth Counterclaim seeks attorneys' fees in connection with this action. As Respondent has pointed to no contractual basis for such a claim, this counterclaim must be dismissed.
With all of Respondent's affirmative defenses and counterclaims dismissed for the reasons discussed above, and Respondent not having placed in dispute any of the elements of Petitioner's case or the amount claimed, the Court finds no disputed issues of material fact to be resolved at trial. 3 Accordingly, Petitioner's motion for summary judgment is granted. Petitioner is awarded a possessory judgment in the amount of $53,314.98 and is granted summary judgment on the question of liability for attorneys' fees, as provided for in Article 19 of the Lease. The parties shall appear in Part 52 on May 9, 2001, at 9:30 a.m., for a hearing to determine the amount of Petitioner's reasonable attorneys' fees in connection with action.
Dated: 4/25/01
1 Petitioner contends that all procedural defenses must be dismissed, as the Answer in which they were asserted was not verified, as required for procedural defenses pursuant to CPLR 3020(c). But CPLR 3022 provides that "Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects to do so." That courts have frequently held that the foregoing "due diligence" standard requires notice to the others side of intent to treat the pleading as a nullity within 24 hours. See Miller v. Board of Assessors, 91 N.Y.2d 82, 86, 666 N.Y.S.2d 1012, 1014 n. 3 (1987). Petitioner does not claim to have taken any action of the sort required by CPLR 3022.
2 Applicable to service of a predicate notice (rent demand) by reference in RPAPL Section 711 (3).
3 Respondent's contention that the earlier order herein by Judge Debra Rose Samuels found that such disputed issues of fact did exist (and that that finding is the law of the case) is not supported by a reading of that order, which simply granted Respondent's request for disclosure in connections with its counterclaims. Her statement, in that context, that Respondent "has raised issues concerning diminution of the premises' value," did not constitute a finding that Respondent had, by admissible evidence (as required by CPLR 3212) raised a triable issue of fact sufficient to defeat a motion for summary judgment. Rather, it merely acknowledged that Respondent had pointed to its counterclaim for diminution of value in arguing its need for disclosure.