Opinion
900970/19
11-25-2019
RIVERDALE REALTY DEVELOPMENT LLC, Petitioner(s), v. EJM RESTAURANT CORP., Respondent(s).
Attorney for petitioner: Novick Edelstein Pomerantz PC Attorney for respondent: Borah, Goldstein, Wughalter, Corredine & Perez-Hall, PC
Attorney for petitioner: Novick Edelstein Pomerantz PC
Attorney for respondent: Borah, Goldstein, Wughalter, Corredine & Perez-Hall, PC
Fidel E. Gomez, J.
In this summary holdover proceeding, petitioner moves seeking an order granting it, inter alia , summary judgment, and thereafter, the issuance of a judgment of possession and a warrant of eviction related to the premises located at 3733 Riverdale Avenue, Bronx, NY 10467. Petitioner contends that it has established, beyond any factual dispute, that the lease between the parties expired pursuant to its terms and that respondent failed to timely exercise the option to renew the same. Thus, petitioner contends that respondent has no right to occupy the foregoing premises. Respondent opposes the instant motion asserting that the uncontroverted facts actually establish that respondent timely exercised the renewal option under the lease, thereby warranting denial of petitioner's motion. For the foregoing reasons, respondent cross-moves seeking, inter alia , dismissal of the instant proceeding pursuant to CPLR § 3211(a)(1) on grounds that the lease between the parties, along with documents establishing that respondent timely exercised the foregoing renewal option, establish an absolute defense to this proceeding. For the very same reasons asserted in support of its motion, petitioner opposes respondent's cross-motion.
For the reasons that follow hereinafter, petitioner's motion is granted and respondent's cross-motion is denied.
According to the petition, filed on July 3, 2019, petitioner owns the premises located at 3733 Riverdale Avenue, Bronx, NY 10467 (3733). Pursuant to a lease that expired on April 30, 2019, respondent was the tenant of "all the rooms of the restaurant" located at 3733. Despite the expiration of the lease between the parties, respondent remains in possession of 3733. Based on the foregoing, petitioner seeks a judgment of possession for the premises, a money judgment for use and occupancy for the period of time since the expiration of the lease that respondent has remained in possession, and for legal fees incurred by petitioner in connection with this proceeding.
Petitioner's Motion for Summary Judgment
Petitioner's motion for summary judgment is granted. Petitioner establishes entitlement to relief pursuant to RPAPL § 711(1) by demonstrating that the lease between 3733 Riverdale Avenue Realty (RAR), petitioner's predecessor in interest, and respondent expired and that respondent has nevertheless remained in possession of 3733.
Pursuant to RPAPL § 711, a summary holdover proceeding may be maintained when
[t]he tenant continues in possession of any portion of the premises after the expiration of his term, without the permission of the landlord or, in a case where a new lessee is entitled to possession, without the permission of the new lessee. Acceptance of rent after commencement of the special proceeding upon this ground shall not terminate such proceeding nor effect any award of possession to the landlord or to the new lessee, as the case may be. A proceeding seeking to recover possession of real property by reason of the termination of the term fixed in the lease pursuant to a provision contained therein giving the landlord the right to terminate the time fixed for occupancy under such agreement if he deem the tenant objectionable, shall not be maintainable unless the landlord shall by competent evidence establish to the satisfaction of the court that the tenant is objectionable.
( RPAPL § 711[1] ). Thus, a summary holdover proceeding may be initiated and possession granted when "the landlord ... allege[s] and prove[s] that the tenant remains in possession after the expiration of his or her term" ( Kern v. Guller , 40 AD3d 1231, 1232 [3d Dept 2007] ; 40 W. 67th St. v. Pullman , 296 AD2d 120, 134 [1st Dept 2002], affd sub nom. 40 W. 67th St. Corp. v. Pullman , 100 NY2d 147 [2003] ; Perrotta v. W. Regional Off-Track Betting Corp. , 98 AD2d 1, 2 [4th Dept 1983] ; see also 3300 Co. v. Ryan , 12 Misc 3d 146(A), *1 [App Term 2006] ["In defense of the holdover summary proceeding, tenants failed to establish any right to continue possession of the demised parking space. The record persuasively shows that tenants occupied the parking space pursuant to a month-to-month lease that landlord properly terminated. No claim or showing was made that the parking space was ancillary to tenants' residential tenancy in the building."] ). Notably, in a summary proceeding pursuant to RPAPL § 711(1), "[t]he tenancy must have ended automatically by lapse of time and not by election of the landlord to forfeit the lease for breach of a condition" (Perrotta at 2; see Kern v. Guller , 40 AD3d 1231, 1232 [3d Dept 2007] ).
While in an action pursuant to RPAPL § 711(1), a petitioner must establish the existence of a landlord/tenant relationship ( JCF Assoc., LLC v. Sign Up USA, Inc. , 59 Misc 3d 135[A], *1 [App Term 2018] ["proof of the existence of a landlord-tenant relationship is an element of a landlord's prima facie case in a holdover proceeding."]; 5670 58 St. Holding Corp. v. ASAP Towing Services , Inc., 57 Misc 3d 137[A], *1 [App Term 2017] ), a petitioner need not establish proof of ownership of the premises at issue ( Mason v. Foxcroft Vil., Inc. , 67 AD2d 1012, 1013 [3d Dept 1979] ["Foxcroft has presented no authority that such proof was necessary for proving a prima facie case to recover possession and the law appears to be that such proof is not required."]; Ferber v. Salon Moderne, Inc. , 174 Misc 2d 945, 946 [App Term 1997] ).
Leases are nothing more than contracts and are thus subject to the rules of contract interpretation, namely, that the intent of the parties is to be given paramount consideration, which intent is to be gleaned from the four corners of the agreement, and that of course, the court may not rewrite the contract for the parties under the guise of construction, nor may it construe the language in such a way as would distort the contract's apparent meaning ( Tantleff v. Truscelli , 110 AD2d 240, 244 [2d Dept 1985] ).
It has long been held that absent a violation of law or some transgression of public policy, people are free to enter into contracts, making whatever agreement they wish no matter how unwise they may seem to others ( Rowe v. Great Atlantic & Pacific Tea Company, Inc. , 46 NY2d 62, 67-68 [1978] ). Consequently, when a contract dispute arises, it is the court's role to enforce the agreement rather than reform it ( Grace v. Nappa , 46 NY2d 560, 565 [1979] ). In order to enforce the agreement, the court must construe it in accordance with the intent of the parties, the best evidence of which being the very contract itself and the terms contained therein ( Greenfield v. Philles Records, Inc. , 98 NY2d 562, 569 [2002] ). Thus, it is well settled that "when the parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms" ( Vermont Teddy Bear Co., Inc. v. 583 Madison Realty Company , 1 NY3d 470, 475 [2004] [internal quotation marks omitted] ). Moreover, "a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield at 569). Accordingly, courts should refrain from interpreting agreements in a manner which implies something not specifically included by the parties, and courts may not, by construction, add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing (Vermont Teddy Bear Co., Inc. at 475). This approach, of course, serves to preserve "stability to commercial transactions by safeguarding against fraudulent claims, perjury, death of witnesses [and] infirmity of memory" ( Wallace v. 600 Partners Co. , 86 NY2d 543, 548 [1995] [internal quotation marks omitted] ).
Provided a writing is clear and complete, evidence outside its four corners "as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing" ( W.W.W. Assoc., Inc. v. Giancontieri , 77 NY2d 157, 162 [1990] ; see Greenfield v. Philles Records, Inc. , 98 NY2d 562, 569 [2002] ; Mercury Bay Boating Club, Inc. v. San Diego Yacht Club , 76 NY2d 256, 269-270 [1990] ; Judnick Realty Corp. v. 32 W. 32nd St. Corp. , 61 NY2d 819, 822 [1984] ). Whether a contract is ambiguous is a matter of law for the court to decide (W.W.W. Assoc., Inc. at 162; Greenfield at 169; Van Wagner Adv. Corp. v. S & M Enterprises , 67 NY2d 186, 191 [1986] ). A contract is unambiguous if the language it uses has "definite and precise meaning, unattended by danger of misconception in purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion" (Greenfield at 569; see Breed v. Ins. Co. of N. Am. , 46 NY2d 351, 355 [1978] ). Hence, if the contract is not reasonably susceptible to multiple meanings, it is unambiguous and the court is not free to alter it, even if such alteration reflects personal notions of fairness and equity ( id. at 569-70 ). It is well settled that silence, or the omission of terms within a contract are not tantamount to ambiguity (Greenfield at 573; Reiss v. Financial Performance Corp. , 97 NY2d 195, 199 [2001] ). Instead, the question of whether an ambiguity exists must be determined from the face of an agreement without regard to extrinsic evidence (Greenfield at 569-570), and an unambiguous contract or a provision contained therein should be given its plain and ordinary meaning ( Rosalie Estates, Inc. v. RCO International, Inc. , 227 AD2d 335, 336 [1st Dept 1996] ).
With respect the renewal of leases, it is well settled that a landlord has no obligation to renew a lease ( Dime Sav. Bank of New York, FSB v. Montague St. Realty Assoc. , 90 NY2d 539, 542 [1997] ; Mobil Oil Corp. v. Rubenfeld , 48 AD2d 428, 431 [2d Dept 1975], affd , 40 NY2d 936 [1976] ). As such, generally, a tenant desiring renewal at the end of a lease must reach such an agreement, which will then govern renewal (Dime Sav. Bank of New York, FSB at 543; Pepe v. Stock , 24 AD3d 527, 528 [2d Dept 2005] ). While generally, the failure to exercise an option within the time specified by the relevant agreement precludes the exercise of the option ( J. N. A. Realty Corp. v. Cross Bay Chelsea, Inc. , 42 NY2d 392, 396 [1977] ; Sy Jack Realty Co. v. Pergament Syosset Corp. , 27 NY2d 449, 452 [1971] ; Dan's Supreme Supermarkets, Inc. v. Redmont Realty Co. , 216 AD2d 512, 513 [2d Dept 1995] ; Souslian Wholesale Beer & Soda, Inc. v. 380-4 Union Ave. Realty Corp. , 166 AD2d 435, 437 [2d Dept 1990] ), the rule is different in cases where the failure to timely exercise an option to renew a lease results in forfeiture of the premises governed by the lease (J.N.A. Realty Corp. at 396-400; Dan's Supreme Supermarkets, Inc. at 513; Souslian Wholesale Beer & Soda, Inc. at 437). In cases where the failure to timely exercise an option to renew a lease results in forfeiture, equity prevents such forfeiture if
(1) the tenant's failure to exercise the option in a timely fashion resulted from an honest mistake or inadvertence, (2) the nonrenewal of the lease would result in a substantial forfeiture by the tenant, and (3) the landlord would not be prejudiced by the renewal
(Dan's Supreme Supermarkets, Inc. at 513; see J.N.A. Realty Corp. at 396-400; Souslian Wholesale Beer & Soda, Inc. at 437).
In support of the instant motion, petitioner submits the lease between the parties. The lease is dated January 1, 2009, is between respondent and RAR, and is for 3733. Paragraph 40 of the rider annexed to the lease indicates the following. First, that "the term of this lease shall be for a full ten (10) years." Second, that the 10-year term begins on May 1, 2009 and ends on April 31, 2019. Third, that the tenant, here the respondent, has an option to renew the lease for an additional five years, said term beginning on May 1, 2019 and ending on April 31, 2024. Lastly, with regard to the renewal option, the rider states that "[i]f Tenant agrees to exercise 5 year option, beginning with the 11th year of Lease, Tenant will remit to the Landlord $5,000.00."
Petitioner submits an addendum to the lease between RAR and respondent, dated April 19, 2011. The addendum incorporates the lease by reference, states that its intent is to add additional space to the leasehold at 3733 at a prescribed rent and that the term of the new space will be coterminous with the original space referenced in the lease. The addendum then states that beyond the contents of the addendum, "all other terms, conditions and tenets of the Original Lease ... shall apply and remain in effect." With regard to the additional space in the addendum the term at the top of the addendum indicates that it was 10 years. However, paragraph 40 of the addendum indicates that the term was to begin May 1, 2011 and end on April 31, 2019, making the term of the addendum eight years. Per the addendum, respondent has a right to renew the lease for an additional five years, said term beginning on May 1, 2019 and ending on April 31, 2024.
Petitioner submits a letter dated May 15, 2019, wherein it identifies itself as RAR's successor in interest with respect to 3733 and the lease between respondent and RAR. The letter, addressed to respondent, states that respondent, having failed to exercise the renewal option in the lease, rider and the addendum, forfeited the right to such renewal. As such, petitioner indicates that respondent was now a month-month-tenant, responsible for rent until such time as petitioner determined otherwise.
Based on the foregoing, resolution of this proceeding and disposition of petitioner's motion turns solely on the interpretation of the relevant lease, the rider appended thereto, the addendums, and the acts performed by respondent in furtherance of renewing the lease.
To be sure, in a summary holdover proceeding, petitioner is entitled to possession when it is established that the tenant remains in possession after the expiration of the relevant lease (Kern at 1232; 40 W. 67th St. at 134; Perrotta at 2; 3300 Co. at *1). Moreover, it is well settled that leases are contracts and thus, subject to the rules of contract interpretation, namely, that the intent of the parties is to be given paramount consideration, which intent is to be gleaned from the four corners of the agreement, and that of course, a court may not rewrite the contract for the parties under the guise of construction, nor may it construe the language in such a way as would distort the contract's apparent meaning (Tantleff at 244). Stated differently, "a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield at 569). Therefore, courts should refrain from interpreting agreements in a manner which implies something not specifically included by the parties, and courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing (Vermont Teddy Bear Co., Inc. at 475).
With respect to renewal options in leases, as noted above, it is beyond cavil that generally, a landlord has no obligation to renew a lease unless there is an agreement to renew, which will give rise to renewal under the agreed upon terms (Dime Sav. Bank of New York, FSB at 543; Pepe v. Stock , 24 AD3d 527, 528 [2d Dept 2005] ). While generally, the failure to exercise an option within the time specified by the relevant agreement precludes the exercise of the option (J.N.A. Realty Corp. at 396; Sy Jack Realty Co. at 452; Dan's Supreme Supermarkets, Inc. at 513; Souslian Wholesale Beer & Soda, Inc. at 437), the rule is different in cases where the failure to timely exercise an option to renew a lease results in forfeiture of the premises governed by the lease (J. N. A. Realty Corp. at 396-400; Dan's Supreme Supermarkets, Inc. at 513 [2d Dept 1995]; Souslian Wholesale Beer & Soda, Inc. at 437). When, the failure to timely exercise an option to renew a lease results in forfeiture, equity prevents such forfeiture if
(1) the tenant's failure to exercise the option in a timely fashion resulted from an honest mistake or inadvertence, (2) the nonrenewal of the lease would result in a substantial forfeiture by the tenant, and (3) the landlord would not be prejudiced by the renewal
(Dan's Supreme Supermarkets, Inc. at 513; see J.N.A. Realty Corp. at 396-400; Souslian Wholesale Beer & Soda, Inc. at 437).
When the evidence submitted by petitioner is analyzed against the foregoing legal backdrop, it is clear that petitioner is entitled to summary judgment. First, here, notwithstanding that the rider appended to the lease contains an error with regard to the date upon which the lease expired, listing that date as April 31, 2019 rather than April 30, 2019, the lease is nevertheless clear and unambiguous. Specifically, it indicates, by listing each yearly term separately, that the lease would commence on May 1, 2009, would run for a term of 10 years, and would end in April 2019. The lease further states that respondent has the option to renew the lease for a term of five additional years, again itemizing each year of that term separately and indicating that it would begin on May 1, 2019 and end in April 2024. With regard to exercising of the option to renew the lease, the lease further stated that "[i]f ... Tenant agrees to exercise 5 year option, beginning with the 11th year of Lease, Tenant will remit to the Landlord $5,000.00." Thus, here, the lease clearly and unambiguously required that if respondent wanted to exercise the renewal opinion, it had to do so by remitting a check to the landlord for $5,000. With regard to the timing of the exercise of the option- the crux of the instant motion and cross-motion - the only fair interpretation of the relevant agreements is that respondent had to be done prior to the expiration of the original lease term.
To conclude, as urged by respondent, that the instant option could have been exercised after the expiration of the lease term would run afoul of well settled principles of contract interpretation. Indeed, "a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield at 569). Thus, ascribing plain meaning to all of the words in the operative language regarding the option, here, it is clear that the reference to the 11th year does not mean that the option could be exercised in year 11 after the expiration of the lease but rather, that if respondent wanted to remain in possession in year 11 it had to tender $5,000 to petitioner on or before the end of year 10. Of course, this had to be done prior to the expiration of the lease, since respondent's term, per the clear language of the lease, was 10 years, making it impossible for it to be legally in possession in year 11 absent having already exercised the option. In other words, respondent could not have been in possession of 3733 beyond year 10 unless it was there pursuant to the terms of the renewal option it had timely and previously exercised prior to year 11.
Additionally, respondent's position violates another well settled tenet of contract law. It is well settled that no clause in a contract should be interpreted in a away which renders another clause meaningless ( Two Guys from Harrison-N.Y., Inc. v. S.F.R. Realty Assoc. , 63 NY2d 396, 403 [1984] ["In construing a contract, one of a court's goals is to avoid an interpretation that would leave contractual clauses meaningless."]; Corhill Corp. v. S. D. Plants, Inc. , 9 NY2d 595, 599 [1961] ; Muzak Corp. v. Hotel Taft Corp. , 1 NY2d 42, 46 [1956] ; UBS Sec. LLC v. Red Zone LLC , 77 AD3d 575, 579 [1st Dept 2010] ). Here, respondent's position that it could extend a 10 year lease by exercising a renewal option in year 11 would render meaningless every part of the lease which limits the lease's term to 10 years. Thus, respondent's position is without merit.
For this same reason, respondent's assertion that the renewal clause is ambiguous such that it should be construed against petitioner, whose predecessor in interest drafted the same, and upon such interpretation, interpreted to mean that the renewal option could have been exercised in year 11, is unavailing. It is true that under the maxim contra proferentem , when the terms of a contract and/or the words contained therein are ambiguous, well settled principles of contract law require that such ambiguity be resolved against the drafter of the contract ( Graff v. Billet , 64 NY2d 899, 902 [1985] ["A fortiori this conclusion is unavoidable under the well-settled maxim of contra proferentem. If there is any doubt or uncertainty as to the meaning of the disputed language in the brokerage agreement, all ambiguity must be resolved against the broker who prepared it."]; Kozminski v. Kozminski , 169 AD3d 1418, 1419 [4th Dept 2019] ["it is an established principle of contract law that any ambiguity or dual meaning attributable to the words of a contract should be interpreted most strictly against the drafter" (internal quotation marks omitted) ]; Chatterjee Fund Mgt., L.P. v. Dimensional Media Assoc. , 260 AD2d 159, 159 [1st Dept 1999] ). In Kozminski , where defendant drafted a divorce agreement containing language governing his obligation to pay for his children's education, the court resolved the ambiguity in the agreement against defendant (Kozminski at 1418-1419). Here, however, as noted above, the interpretation urged by respondent would thwart and nullify the portions of the lease prescribing a 10 year term, thereby precluding the interpretation urged by respondent.
Because the Court holds that the renewal option should have been exercised prior to April 30, 2019, petitioner's letter dated May 16, 2019, wherein petitioner apprises respondent that it failed to timely renew the lease, establishes that the lease here expired, that renewal was sought untimely, and that respondent's continued possession of 3733 is objectionable. Accordingly, petitioner establishes prima facie entitlement to summary judgment.
Nothing submitted by respondent in opposition to the instant motion raises an issue of fact sufficient to preclude summary judgment. Indeed, respondent submits much of the same evidence submitted by petitioner which, as previously noted, does not avail respondent. Notably, while the grant of the instant motion will result in respondent's forfeiture of 3733, such that the Court could exercise its equitable powers to prevent the same (Dan's Supreme Supermarkets, Inc. at 513; see J.N.A. Realty Corp. at 396-400; Souslian Wholesale Beer & Soda, Inc. at 437), respondent neither seeks such relief, nor submits any evidence in support thereof. To be sure, nothing submitted by respondent establishes that its failure to exercise the option in a timely fashion resulted from an honest mistake or inadvertence (Dan's Supreme Supermarkets, Inc. at 513; see J.N.A. Realty Corp. at 396-400; Souslian Wholesale Beer & Soda, Inc. at 437). Instead, respondent's salient position is that here, it exercised the option in accordance with the terms of the lease and the relevant cure provision. Similarly, respondent never asserts or provides any corroborating proof establishing that the nonrenewal of the lease would result in a substantial forfeiture by the tenant (Dan's Supreme Supermarkets, Inc. at 513; see J.N.A. Realty Corp. at 396-400; Souslian Wholesale Beer & Soda, Inc. at 437). Accordingly, petitioner's motion for summary judgment is granted.
Respondent avers that the cure provision in the lease avails it because even if the lease called for renewal prior to April 30, 2019, the option was exercised on May 14, 2019, within 20 days thereof - the time provided by the lease rider's cure provision. This contention is without merit. Here, Paragraph 61 of the rider states that the "Landlord ... shall furnish Tenant with notice of any default on the part of the Tenant ... [and] Tenant shall have twenty (20) days to cure any such default." While the foregoing language prescribes a 20-day cure period, to assert that such cure period applied to the renewal clause in the lease strains logic. Significantly, Paragraph 17 of the lease augments and particularizes the cure period in the rider, prescribing a cure period for, inter alia , failing to fulfill "any of the covenants of this lease," or for vacating or deserting the premises. When the lease and rider are read together, it is clear that the intent of the parties was that the cure provisions and periods prescribed therein would not apply to the renewal option within the rider and instead, would only apply to respondent's failure to perform the other covenants in the lease.
To hold otherwise would render the entire agreement relatively meaningless, because per the lease, absent respondent's exercise of the renewal option, the parties intended, expected, and contracted that the lease would expire on April 30, 2019. Thus, the cure period here cannot be construed as urged by respondent because it would render the other portions of the lease and rider meaningless (Two Guys from Harrison-N.Y., Inc. at 403 [1984]; Corhill Corp. at 599; Muzak Corp. at 46; UBS Sec. LLC at 579), including the renewal clause. Indeed, the very purpose parties prescribe an end date to a lease and require renewal prior to that date is to provide a landlord with ample notice that the premises will have to be relet, thereby allowing the landlord to undertake efforts related thereto, or that because of the intent to renew the lease, the tenant will remain in possession by virtue of renewal, thereby obviating the foregoing efforts by the landlord.
Petitioner's Motion to Amend the Petition
Petitioner's motion to amend the notice of petition and the petition to reflect the correct zip code for 3733 is granted.
A petition in a summary proceeding is no different than a pleading in any other type of civil case ( Jackson v. New York City Hous. Auth. , 88 Misc 2d 121, 122 [App Term 1976] ). Indeed, absent a defect in the petition which divests the court of subject matter or personal jurisdiction, leave to amend a petition should be freely granted (id. ; Rosgro Realty Co. v. Braynen , 70 Misc 2d 808, 810 [App Term 1972], affd sub nom. Grosfeld v. Braynen, 41 AD2d 605 [1st Dept 1973] ["Those cases should not be construed as placing any limitation on the ‘widest possible latitude’ in granting leave to amend or supplement pleadings, at any stage, which CPLR 3025 so fully confides to the liberal discretion of trial courts in any and all proceedings."] ). Indeed,
[a] petition in a summary proceeding is no different than a pleading in any other type of civil case. A petition which may fail to state facts sufficient to constitute a cause of action or contains other pleading infirmities is capable of correction by amendment. Such a petition does not render the proceeding jurisdictionally defective
(Jackson at 122; see Rosgro Realty Co. at 810 ["A petition omitting these allegations may, perhaps, fail to state facts sufficient to constitute a cause of action. Omitting the allegations does not, however, deprive the court of subject matter jurisdiction."] ). Thus, absent prejudice resulting from the amendment, a motion to amend the petition ought to be granted ( 17th Holding LLC v. Rivera , 195 Misc 2d 531, 532 [App Term 2002] ; Baer v. Gotham Craftsman Ltd. , 154 Misc 2d 490, 492 [App Term 1992] ).
Here, petitioner seeks to amend the petition to list the zip code for 3733 as 10463 rather than 10467 as erroneously listed in the notice of petition and the petition. In support of the instant application, petitioner annexes an affidavit of service which indicates that on July 18, 2009, respondent was served with the notice of petition and petition at 3733, the zip code for which is 10463.
Based on the foregoing and because respondent does not oppose this portion of petitioner's application and did, in fact, interpose an answer, the Court cannot fathom how respondent would be prejudiced by the instant amendment. Moreover, here it is clear that the Court has jurisdiction, both subject matter and personal over the claims and the parties.
Respondent's Cross-Motion to, inter alia, Dismiss the Petition
Respondent's cross-motion seeking an order granting it summary judgment, thereby dismissing the petition, is denied. Significantly, as discussed above, to the extent that the Court granted petitioner's motion for identical relief upon the very same evidence submitted by respondent, the portion of the cross-motion seeking summary judgment must be denied.
Respondent's cross-motion pursuant to CPLR § 3211(a)(1) is denied insofar as respondent's documentary evidence does not establish a defense to the claims asserted in the petition as matter of law.
The proponent of a motion to dismiss a complaint (or a petition) pursuant to CPLR § 3211(a)(1) - that a defense is founded upon documentary evidence - bears the burden of coming forward with documentary evidence, which utterly refutes the factual allegations contained in plaintiff's complaint thereby conclusively establishing a defense to the asserted claims as a matter of law ( Goshen v. Mutual Life Insurance Company of New York , 98 NY2d 314, 326 [2002] ; Leon v. Martinez , 84 NY2d 83, 88 [1994] ; Saxony Ice Co., Division of Springfield Ice Co., Inc. v. Ultimate Energy Restaurant Corp., 27 AD3d 445, 446 [2d Dept 2006] ; Berardino v. Ochlan , 2 AD3d 556, 557 [2d Dept 2003] ; IMO Industries, Inc., v. Anderson Kill & Olick, P.C. , 267 AD2d 10, 11 [1st Dept 1999] ; European American Bank v. Miller , 265 AD2d 374, 374 [2d Dept 1999] ). Documentary evidence means judicial records, judgments, orders, contracts, deeds, wills, mortgages and "a paper whose content is essentially undeniable and which, assuming the verity of its contents and the validity of its execution, will itself support the ground upon which the motion is based" ( Webster v. State of New York , 2003 NY Slip Op. 50590(U), *2 [Court of Claims 2003]. Thus, affidavits are not considered documentary evidence for purposes of relief under CPLR § 3211(a)(1) ( Fleming v. Kamden Properties, LLC , 41 AD3d 781, 781 [2d Dept 2007] ; Berger v. Temple Beth-El of Great Neck , 303 AD2d 346, 347 [2d Dept 2003] ).
Here, the documents submitted by respondent - the lease, the rider, and the addendums - do not avail respondent for the reasons discussed at length above. Instead, the documents establish that respondent has, in fact, remained in possession of the instant premises beyond the expiration of the lease after failing to timely exercise its option to renew it. Thus, the documents fail to utterly refute the factual allegations contained in the petition (Goshen at 326; Leon at 88; Saxony Ice Co., Division of Springfield Ice Co., Inc. at 446; Berardino at 557; IMO Industries, Inc. at 11; European American Bank at 374).
Respondent's cross-motion seeking dismissal of the petition pursuant to CPLR § 3211(a)(7) is denied inasmuch as the petition states a cause of action pursuant to RPAPL § 711(1), namely that the lease between the parties expired and respondent has remained in possession nonetheless.
On a motion to dismiss a complaint (or petition) pursuant to CPLR § 3211(a)(7), all allegations in the complaint are deemed to be true ( Sokoloff v. Harriman Estates Dev. Corp. , 96 NY2d 409, 414 [2001] ; Cron v. Hargro Fabrics , 91 NY2d 362, 366 [1998] ). All reasonable inferences which can be drawn from the complaint and the allegations therein stated shall be resolved in favor of the plaintiff (Cron at 366). In opposition to such a motion a plaintiff may submit affidavits to remedy defects in the complaint (id. ). If an affidavit is submitted for that purpose, it shall be given its most favorable intendment (id. ) The court's role when analyzing the complaint in the context of a motion to dismiss is to determine whether the facts as alleged fit within any cognizable legal theory ( Sokoloff v. Harriman Estates Development Corp. , 96 NY2d 409, 414 [2001] ). In fact, the law mandates that the court's inquiry be not limited solely to deciding whether plaintiff has pled the cause of action intended, but instead, the court must determine whether the plaintiff has pled any cognizable cause of action ( Leon v. Martinez , 84 NY2d 83, 88 [1994] ["(T)he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one."] ). However, "when evidentiary material [in support of dismissal] is considered the criterion is whether the proponent of the pleading has a cause of action not whether he has stated one" ( Guggenheimer v. Ginzburg , 43 NY2d 268, 275 [1977] ).
As Judge Cook stated in Guggenheimer ,
[i]nitially, the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion to dismiss will fail. When evidentiary material is considered the criterion is whether the proponent of the pleading has a cause of action not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not fact at all and unless it can be said that no significant dispute exists regarding it again dismissal should not eventuate.
(id. at 275).
Here, to the extent that in a summary holdover proceeding petitioner is entitled to possession when it is established that the tenant remains in possession after the expiration of the relevant lease (Kern at 1232; 40 W. 67th St. at 134; Perrotta at 2; 3300 Co. at *1), the petition, which alleges the foregoing facts and which must be deemed true, state a cause of action pursuant to RPAPL § 711(1). Moreover, because respondent submits evidence in support of this portion of its motion, the Court must determine whether there exists a cause of action rather than just whether one is pleaded. Here, the documents submitted by respondent in support of the motion - particularly, the lease and rider - bolster rather than controvert petitioner's claims. Accordingly, respondent's cross-motion is denied in its entirety. It is hereby
ORDERED that the notice of petition and petition be deemed amended, nunc pro tunc , to reflect the zip code of 3733 as 10463. It is further
ORDERED that a judgment of possession is granted in petitioner's favor and that a warrant of eviction issue forthwith. It is further
ORDERED that execution of the warrant be stayed until December 31, 2019, the earliest date that the warrant can be executed. It is further
ORDERED that petitioner serve a copy of this Decision and Order with Notice of Entry upon respondent within ten days (10) hereof.
This constitutes this Court's Decision and Order.