Opinion
Index No. 160457/2021 Motion Seq. No. 002
11-17-2023
ALMARK HOLDING CO. LLC, Plaintiff, v. JUNG MOON, KWANG MOON, JANE DOE, JOHN DOE, Defendant.
Unpublished Opinion
DECISION + ORDER ON MOTION
HON. FRANCIS A. KAHN, III JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 002) 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91,92, 93, 94, 95, 96, 97, 98 were read on this motion to/for _JUDGMENT - SUMMARY.
Upon the foregoing documents, the motion is determined as follows:
This is an action for, inter alia, a judgment of ejectment and a money judgment for use and occupancy related to a premises located at 284 Mott Street, Apartment 10 PHQ, New York, New York. Plaintiff filed affidavits of service of the summons and complaint on Defendants Jung Moon ("Jung") and Kwang Moon ("Kwang") on December 15, 2021, and January 13, 2022, respectively. Defendant Jung filed, pro se, a document titled "Affidavit Answer to Summons" on January 13, 2022.
Thereafter, Defendants Jung and Kwang moved to dismiss the complaint pursuant to CPLR §3211 [a][8], for a traverse hearing as well as an award of costs and expenses associated with the motion. Plaintiff opposed the motion and cross-moved for no less than thirteen different forms of relief including leave to amend the complaint, declaratory relief, summary judgment and a default judgment. Defendants opposed the cross-motion. After filling the motion, Defendants Jung and Kwang filed, by counsel, an amended answer without court leave. By order dated November 17, 2022, this Court denied Defendants' motion to dismiss and granted Plaintiffs motion only to the extent of permitting filing of an amended complaint.
Now, Plaintiff moves for, by notice of motion, for the following relief:
(a) Pursuant to CPLR 3025(c), amendment of the pleadings to conform to the evidence adduced herein to include all amounts due through the date this motion is to be determined;
(b) Pursuant to CPLR §3212, summary judgment against JUNG JOO MOON, M.D., M.M.S ("Dr. Moon") on the first cause of action in the Amended Complaint for ejectment;
(c) Pursuant to CPLR §3212, summary judgment on the following causes of action in the Amended Complaint:
(i) On those portions of the second and fourth causes of action against Dr. Moon and KWANG MOON (the "Guarantor") (collectively "Defendants"), respectively, for rent / holdover use and occupancy for May 1, 2022 through January 31, 2023 at $3,295.00 per month totaling $29,655.00, which sum continues to accrue while Dr. Moon remains in possession;
(ii) On those portions of the second and fourth causes of action for rent against the Guarantor for February 1, 2021 through April 30, 2022, as months provisionally approved for payment by the Office of Temporary Disability Assistance ("OTDA") through the Emergency Rent Assistance Program ("ERAP") that Landlord did not accept, at $3,295.00 per month totaling $49,425.00;
(iii) On that portion of the fifth cause of action against Defendants for attorneys' fees and expenses pursuant to the lease and the guaranty through January 25, 2023 of $34,100.86, plus re-letting expenses, if any, and leave to enter an independent judgment against Defendants for said fees and expenses, separate and apart from a judgment for rent/use and occupancy, after a hearing to determine the fees due, and/or submission of attorneys' affirmation and invoices;
(iv) Dismissal of all defenses and counterclaims;
(v) Statutory interest, costs and disbursements; and
Defendants Jung and Kwang opposed the motion positing there are issues of fact requiring a trial and that the motion seeks damages not prayed for in the complaint.
The branch of the motion for leave to amend the complaint to plead the continuing damages in this case is denied as unnecessary. Real Property Law §220 provides that "[t]he landlord may recover a reasonable compensation for the use and occupation of real property" per an agreement other than a deed. RPAPL §601 provides that "[i]n an action to recover the possession of real property, the plaintiff may recover damages for withholding the property, including the rents and profits or the value of the use and occupation of the property". As an adjunct to this statutory authority, a court "has broad discretion in awarding use and occupancy pendente lite" (Ballinteer Corp v SNRP W. 37 LLC, 217 A.D.3d 597, 598 [1st Dept 2023]; Alphonse Hotel Corp, v 76 Corp., 2T3 A.D.2d 124 [1st Dept, 2000]).
As to the branch of the motion for summary judgment, a movant "'must make aprima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact'" (Ayotte v Gervasio, 81 N.Y.2d 1062, 1063 [1993], citing Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]). Failure to make the requisite showing requires denial of the motion, regardless of the sufficiency of the opposition papers (see id. at 324; see also Smalls v AJI Industries. Inc., 10 N.Y.3d 733, 735 [2008]). Once a prima facie demonstration has been made, the burden shifts to the opponent to produce evidentiary proof that establishes the existence of a material issues of fact (see eg Giuffrida v Citibank Corp., 100 N.Y.2d 72 [2003]; Zuckerman v City of New York, 49 N.Y.2d 557 [1980]).
A cause of action for ejectment is recognized at common law in New York and is codified under Article 6 of the Real Property Actions and Proceedings Law which is titled "Action to Recover Real Property" (see Calvi v Knutson, 195 A.D.2d 828, 831 [3d Dept 1993]; Alleyne v Townsley, 110 A.D.2d 674, 675 [2d Dept 1985]). "In order to maintain a cause of action to recover possession of real property, the plaintiff must (1) be the owner of an estate in fee, for life, or for a term of years, in tangible real property, (2) with a present or immediate right to possession thereof, (3) from which, or of which, he has been unlawfully ousted or disseised by the defendant or his predecessors, and of which the defendant is in present possession" (Jannace v Nelson, L.P., 256 A.D.2d 385, 385-386 [2d Dept 1998]; see also Merkos L'Inyonei Chinuch, Inc., v Sharf, 59 A.D.3d 408, 410 [2d Dept 2009]).
In support of the motion, Plaintiff submitted the affidavit of David Lipsic ("Lipsic"), the managing director of non-party Abington Properties, the alleged managing agent of the real property at issue. Lipsic's affidavit, along with the documents contained in the Court record, demonstrate Plaintiff is the owner of the property, that Jung was a tenant at the property via written lease, that the term of occupancy in the lease expired, and that Jung remains in possession of the property. As such, Plaintiff demonstrated, in the first instance, entitlement to summary judgment on the ejectment cause of action (see eg City of New York v Anton, 169 A.D.3d 999, 1001-1002 [2d Dept 2019]).
In opposition, Jung failed to raise any issue of fact (see Noamex, Inc. v Domsey Worldwide, Ltd., 192 A.D.3d 817 [2d Dept 2021]). Indeed, the legal arguments within the affirmation in opposition are entirely conclusory on this point and fail to explain how the evidence in opposition raises an issue of fact (cf Penava Meeh. Corp, v Afgo Meeh. Servs., Inc., 71 A.D.3d 493, 496 [1st Dept 2010]). Jung's reliance on the Emergency Rental Assistance Program ("ERAP")(Part BB, Subpart A, § of chapter 56 of the Laws of 2021, as modified by L. 2021, C. 417) and the conditional approval of an application submitted thereunder is unavailing as Plaintiff demonstrated that it did not participate in the program and that it did not intend to be bound by the condition of accepting ERAP payments (cf H&P 29th St. Assoc. LLC v Yagci,____ Masc3d ____, 2023 NY Slip Op 31098 [U] [Sup Ct NY Cty 2023]). In any event, Plaintiff is not seeking to recover from Jung any sums from the periods subject to exclusion by declining to participate in ERAP.
As to the branch of the motion against Kwang on the guaranty, "'[o]n a motion for summary judgment to enforce a written guaranty all that the creditor need prove is an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty"' (see 4 USS LLC v DSW MS LLC, 120 A.D.3d 1049, 1051 [1st Dept 2014], quoting City of New Yorkv Clarose Cinema Corp., 256 A.D.2d 69, 71 [1st Dept 1998]). Lipsic's affidavit and the record documents demonstrated a prima facie case for summary judgment on the cause of action based upon the guaranty. Based upon the finding supra, no issue of fact was established in the opposition papers. Even if this were not the case, Kwang's reliance on ERAP is misplaced as a guarantor cannot rely on any defenses personal to the borrower "unless it extends to a failure of consideration for the principal contract, and therefore for the guarantor's contract" (I Bldg, Inc. v Hong Mei Cheung, 137 A.D.3d 478 [1st Dept 2017]).
As to the branch of Plaintiffs motion to dismiss Defendants' affirmative defenses, CPLR §3211 [b] provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit". For example, affirmative defenses that are without factual foundation, conclusory or duplicative cannot stand (see Countrywide Home Loans Servicing, L.P. v Vorobyov, 188 A.D.3d 803, 805 [2d Dept 2020]; Emigrant Bank v Myers, 147 A.D.3d 1027, 1028 [2d Dept 2017]). When evaluating such a motion, a "defendant is entitled to the benefit of every reasonable intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed" (Federici v Metropolis Night Club Inc. 48 A.D.3d 741, 743 [2d Dept 2008]).
Contrary to Defendants' assertions, all the affirmative defenses and counterclaims are entirely conclusory and unsupported by any facts in the answer or by the papers submitted in opposition. As $ such, these affirmative defenses are nothing more than an unsubstantiated legal conclusion which is insufficiently pled as a matter of law (see Board of Mgrs. of Ruppert Yorkville Towers Condominium v Hayden, 169 A.D.3d 569 [1st Dept 2019]; see also Bosco Credit V Trust Series 2012-1 v. Johnson, 177 A.D.3d 561 [1st Dept 2020]; 170 W. Vil. Assoc, v G &E Realty, Inc., 56 A.D.3d 372 [1st Dept 2008]; see also Becher v Feller, 64 A.D.3d 672 [2d Dept 2009]; Cohen Fashion Opt., Inc. v V & M Opt., Inc., 51 . A.D.3d 619 [2d Dept 2008]). Further, to the extent that no specific legal arguments were proffered in I support of any affirmative defense or counterclaims, those defenses and claims were abandoned (see U.S. Bank N.A. v Gonzalez, 172 A.D.3d 1273, 1275 [2d Dept 2019]; Flagstar Bank v Bellafiore, 94 A.D.3d 1044 [2d Dept 2012]; Wells Fargo Bank Minnesota, N.A v Perez, 41 A.D.3d 590 [2d Dept 2007]). .
As the amount of use and occupancy, Plaintiff demonstrated that Defendant Jung is responsible for the sum of $29,655.00 representing the period of May 1, 2022, through January 31, 2023. Defendant Kwang is responsible for the sum of $49,425.00 representing the period of February 1, 2021, through April 30, 2022. As to attorney fees and other expenses. Plaintiff has not proffered a sufficient affirmation of legal service and other corroborating documentation to permit the Court to make such an award.
Accordingly, it is
ORDERED that Plaintiffs motion is granted as provided supra, and it is
ORDERED that the issue of Plaintiff s attorney's fees and other expenses is set for a hearing before the Court on December 12, 2023 @ 2:15 p.m. in Courtroom 1127 [b] of the Courthouse located at 111 Centre Street. Any documentary evidence sought to be used during the hearing shall be efiled under a cover letter no later than December 1, 2023. In lieu of a hearing, the parties may have his issue determined upon written submissions, if the parties agree to same in a written stipulation efiled no later than December 1, 2023.