Opinion
Index No. LT-300780-24/NY
07-12-2024
210 First Avenue LLC, Petitioner-Landlord, v. Gena's Grill, Inc., LUIS GERMAN (PRINCIPAL) D/B/A GENNA'S GRILL, Respondent(s)-Tenant(s).
Attorneys for Petitioner GREEN & COHEN, PC, Michael Cohen, Esq. Attorneys for Respondent THE LAW OFFICE OF NICHOLAS EDELSON, Nicholas Edelson, Esq.
Unpublished Opinion
Attorneys for Petitioner GREEN & COHEN, PC, Michael Cohen, Esq.
Attorneys for Respondent THE LAW OFFICE OF NICHOLAS EDELSON, Nicholas Edelson, Esq.
Rena Malik, J.
Recitation, as required by CPLR 2219 (a), of the papers considered on this motion:
Papers NYSCEF Doc No
Notice of Motion, Attorney Affirmation in Support & Exhibits 7-8
Notice of Cross-Motion, Affirmation in Opposition and in Support of Cross-Motion, Affidavit & Exhibits 9-12
Attorney Affirmation in Reply and in Opposition 13
Respondent Affirmation in Reply and in Opposition to Cross-Motion 14
Upon the foregoing papers, respondents move for summary judgment in this summary nonpayment proceeding for dismissal of the petition and for sanctions pursuant to 22 NYCRR 130-1.1. Petitioner opposes and cross-moves for sanctions.
Pursuant to CPLR 409 (b), the court "shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised" (see Matter of Gonzalez v City of New York, 127 A.D.3d 632, 633 [1st Dept 2015]). "The standards governing motions for summary judgment are applicable to special proceedings generally, of which the summary proceeding to recover possession of real property is a species" (Brusco v Braun, 199 A.D.2d 27, 31-32 [1st Dept 1993] [internal citations omitted], affd 84 N.Y.2d 674 [1994]). It is, therefore, "the court's duty to search the record and make summary determinations where appropriate" (McKay v Farquharson, 75 Misc.3d 1223[A], 2022 NY Slip Op 50646[U], *3 [Civ Ct, Queens County 2022]; see New 110 Cipriani Units, LLC v Bd. of Mgrs. of 110 E 42nd St. Condominium, 166 A.D.3d 550, 551 [1st Dept 2018] ["The court had the power to dismiss the complaint upon a search of the record, as on a motion for summary judgment"]; see also Fourth Hous. Co., Inc. v Bowers, 53 Misc.3d 43, 44-45 [App Term, 2d, 11th & 13th Jud Dists 2016]).
In support of their motion, respondents argue that the unpaid rent balance sought in the petition is vague, that the petitioner is seeking to enforce an acceleration clause or liquidated damages clause under the lease to collect future rent, and that such provision is not applicable and is otherwise unenforceable as a confiscatory penalty (NYSCEF Doc No. 8). More specifically, respondent argues that the petition and predicate notice reference a "schedule A," which appears to list "basic rent" amounts but does not state the applicable years of the rent. The document states "Form Date: 12/12/20," which raises further ambiguity. Rather, respondent contends that because the basic rent due changes, it appears that this document mistakenly lists future rents due in later years under the lease term. Further, respondent submitted an affidavit from its principal stating that all basic rent payments from January 2023 through March 2024 have been made and submitted proof of the same (NYSCEF Doc No 8 at p 65-71).
In its opposition to the motion, petitioner submits an affidavit of its property manager and two new notices of default stating respondents failed to pay gas/fuel charges in the amount of $1,118.15 and failed to pay for the cost to repair a gate in the amount of $2,939.63. Petitioner claims that the failure to pay these amounts after having been served with the default notices led to petitioner exercising its rights under paragraph 21.7 of the lease to accelerate the remaining rent due under the lease in the sum of $350,284.55 which is sought in this proceeding (Pikus aff, NYSCEF Doc No. 11).
RPAPL 741 (4) provides that "every petition shall... state the facts upon which the special proceeding is based," which is designed to "ensure[] that a tenant will be informed of the factual and legal claims that he or she will have to meet and enables the tenant to interpose whatever defenses are available" (MSG Pomp Corp. v Doe, 185 A.D.2d 798, 800 [1st Dept 1992]). "It is self-evident that the petition must set forth the grounds for maintaining the proceeding. A failure to set forth the facts upon which the proceeding is based renders the petition insufficient to warrant any relief" (3 NY Landlord & Tenant Incl. Summary Proc. § 41:24 [5th ed.]). In a summary eviction proceeding, the "four corners" of the petition include any required predicate notices that are annexed and incorporated by reference (see Jewish Bd. of Family & Children Services Inc. v S.B., 73 Misc.3d 956, 963 [Civ Ct, Bronx County 2021]; see also 200 W. 112th St. HDFC v 1842 7th Ave. Delicatessen Corp., 30 Misc.3d 1216 [A], 2011 NY Slip Op 50101[U], *2 [Civ Ct, NY County 2011] ["Failure to set forth facts in the petition regarding service of the predicate notices renders the petition deficient"]).
In addition, where, as here, a tenant's alleged default is based upon unpaid rent, there must be a proper rent demand (see RPAPL 711 [2]).
"[A] 'proper demand for rent must fairly afford the tenant, at least, actual notice of the alleged amount due and of the period for which such claim is made. At a minimum, the landlord or his agent should clearly inform the tenant of the particular period for which a rent payment is allegedly in default and of the approximate good faith sum of rent assertedly due for each such period'" (542 Holding Corp. v Prince Fashions, Inc., 46 A.D.3d 309, 311 [1st Dept 2007], quoting Schwartz v Weiss-Newell, 87 Misc.2d 558, 561 [Civ Ct, NY County 1976]; see also 1775 Clay Realty LLC v Fleming, 56 Misc.3d 1209 [A], 2017 NY Slip Op 50911[U], *4 [Civ Ct, Bronx County 2017] [dismissal is warranted when rent demand fails to assert "facts which fit within any 'cognizable legal theory' under which Respondents could owe such sum"]).
The Court finds that respondents met their burden entitling them to judgment as a matter of law by showing that the petition and rent demand are defective (see, e.g., J.D. Realty Assoc. v Jorrin, 166 Misc.2d 175, 178 [Civ Ct 1995], affd sub nom. J.D. Realty Assoc. v Scoullar, 169 Misc.2d 292 [App Term, 1st Dept 1996] [the "asterisked language" in the rent demand stating "plus any and all arrears which may be due" "render[ed] the 'notice' both indefinite and equivocal" because it "conveys contradictory and ambiguous signals about what the tenant must pay to avoid eviction, forcing the tenant to guess, at his or her peril"]).
The Court finds that the evidence in opposition claiming newly alleged defaults in paying for the basement gate repairs, and/or water and gas charges, as set forth in the newly submitted notices of default, cannot rectify this deficiency. Neither the new notices of default, nor any mention of gas and water charges, nor the basement gate repair, nor the acceleration clause nor computation of accelerated rent is mentioned in the petition or rent demand at all and, therefore, cannot serve as the basis or predicate notice for this proceeding. "Failure to demand a good faith approximation of rent renders the predicate demand defective. Predicate notices cannot be amended and a defective predicate notice requires dismissal of a summary proceeding" (JDM Washington St., LLC v 90 Washington Rest. Assoc., LLC, 36 Misc.3d 769, 775 [Civ Ct, NY County 2012], citing, inter alia, Chinatown Apartments, Inc. v Chu Cho Lam, 51 N.Y.2d 786, 787 [1980]).
To the extent that the amount sought in the petition constituted future rent (which, again, was unclear from the petition and rent demand), this Court does not have jurisdiction over a claim for future rent due under a lease acceleration clause (see 172 Van Duzer Realty Corp. v Globe Alumni Student Assistance Ass'n, Inc., 24 N.Y.3d 528 [2014], citing CCA 204 and Ross Realty v V & A Fabricators, Inc., 42 A.D.3d 246 [2d Dept 2007]). While New York courts have upheld the parties' ability to contract for accelerated rents upon termination of the landlord-tenant relationship, accelerated rent has been held not to constitute "rent due," but rather contractual damages not recoverable in a summary proceeding (see Olim Realty Corp. v Big John's Moving, Inc., 250 A.D.2d 744 [2d Dept 1998]; Ross Realty v V & A Fabricators, Inc., 42 A.D.3d 246, 250 [2d Dept 2007]). As the petition and rent demand are defective, the proceeding is accordingly dismissed.
Regarding, the branch of respondents' motion for sanctions, respondent contends that the proceeding is frivolous. Petitioner cross-moved for sanctions, arguing that respondents' motion to dismiss is frivolous.
Pursuant to 22 NYCRR 130-1.1 (c), "conduct is frivolous if:"
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section.
In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.
The decision to award costs or sanctions, and the amount or nature of those costs or sanctions, is generally entrusted to the trial court's sound discretion (see Perna v Reality Roofing, Inc., 122 A.D.3d 821, 822 [2d Dept 2014]; Pickens v Castro, 55 A.D.3d 443, 444 [1st Dept 2008] ["Trial judges should be accorded wide latitude to determine the appropriate sanctions for dilatory and improper attorney conduct and we will defer to a trial court regarding sanctions determinations unless there is a clear abuse of discretion"]).
In support of petitioner's cross-motion for sanctions, counsel contends that a frivolous motion is sanctionable and argues only that, because "Respondent has moved for sanctions, and that request is frivolous, Petitioner is now requesting that Respondent's counsel be sanctioned" (NYSCEF Doc No 10, Cohen affirmation at ¶¶ 14-15). Petitioner cites to no specified conduct under Rule 130-1.1 and, in any event, the Court finds respondents' motion could not be considered as frivolous when it was instead meritorious. Accordingly, the Court denies petitioner's cross-motion to award sanctions against respondents (see, e.g., Thomasson v Demarco, 217 A.D.3d 709 [2d Dept 2023]).
In support of the branch of respondents' motion for sanctions, respondent points to conduct by petitioner alleged to be frivolous including: the lack of specificity for dates when rent was allegedly due and lack of legal basis for claiming respondents were in default; failure to set forth in the petition the basis of the amounts claimed due and whether the petition sought future rent or liquidated damages; the extreme disproportionality of the damages claim constituting an unrecoverable penalty; and that petitioner's acts were intended to harass or maliciously injure the respondent (NYSCEF Doc No 8, Edelson affirmation, ¶¶ 41-45). In light of these allegations, alluding to the lack of both legal and factual merit of this petition, the Court will schedule this matter for a hearing on whether the proceeding is frivolous and subject to an award of sanctions pursuant to 22 NYCRR 130-1.1).
Accordingly, it is hereby ORDERED that respondents' motion (mot seq no 001) is granted to the extent that the petition is dismissed; and it is further
ORDERED that the branch of the same motion seeking sanctions against petitioner is severed and is scheduled for a hearing on August 6, 2024 at 11:00 AM in Part 134, located in Room 949 of 111 Centre Street, New York, New York; and it is further
ORDERED that petitioner's cross-motion for sanctions is denied (mot seq no 002).
This constitutes the decision and order of the Court.