Opinion
99968/05.
Decided January 25, 2006.
Nancy J. Silver, Esq., Silver Silver LLP, New York, NY, for petitioner.
Steven J. Cohen, Esq., Wachtel Masyr, LLP, New York, NY, for respondents.
By order to show cause dated November 8, 2005, petitioner moves for an order granting it summary judgment on its petition and awarding and restoring to it immediate possession of the premises from respondents, and awarding it damages resulting from its wrongful eviction from the premises. Respondents oppose the motion, and move pursuant to CPLR 3211(a)(2), (3), (7), and (8) for an order dismissing the petition. By notice of motion dated December 22, 2005, petitioner moves for an order granting it leave to amend the petition to add Gordon Gooch as a necessary party to the petition. Respondents oppose the motion. For the following reasons, the motion to amend is granted, the motion for summary judgment on the petition is granted, and respondents' cross-motion to dismiss is denied.
I. UNDISPUTED FACTS
Since July 2004, petitioner occupies the premises known as and located at 515 Greenwich Street, No. 502 (a/k/a 315 Spring Street, #502), New York, New York. (Affidavit of Gordon Gooch, dated Nov. 8, 2005 [Gooch Affid.], ¶¶ 1, 3). Gooch is petitioner's president. ( Id.). During its occupancy, petitioner sublet part of the premises to other entities. ( Id., ¶ 4).
Prior to petitioner's occupancy and pursuant to a "license agreement" with respondents, the premises were occupied by Xavier Nellens. The agreement commenced on March 1, 2002 and expired on "February 30, 2005" ( sic). (Gooch Affid., Exh. A). It grants Nellens the use of the premises as "artist studio space (NON-RESIDENTIAL)" in exchange for an annual fee payable in monthly installments, and provides for repairs, indemnification, notice of termination or expiration including licensor's rights and remedies in the event of the licensee's default, non-waiver, assignment, other notices, and subordination, etc. ( Id.).
Having assumed Nellens's agreement on November 24, 2003, Gooch commenced his occupancy in July 2004. ( Id., ¶¶ 5, 6, Exh. B). The assignment agreement (agreement), signed by Gooch and respondent Epstein on behalf of respondent Dara Partners, LP (Dara), grants Gooch permission to use the space for "commercial photography purposes, NON-RESIDENTIAL," and provides that "Gordon Gooch, personally, hereby accepts all of the obligations under the aforementioned license agreement." ( Id.). Petitioner is mentioned nowhere in the agreement.
In February 2005, prior to the expiration of the agreement, Gooch discussed with respondents his continued occupancy of the premises. ( Id., Exh. C). Following the expiration at the end of February 2005 and despite the absence of a new agreement, Gooch and petitioner remained in occupancy and respondents accepted petitioner's monthly checks through November 2005. ( Id., ¶¶ 8-11).
On October 14, 2005, Epstein left Gooch a telephone message informing him that the agreement was terminated. ( Id., ¶ 12). By email dated October 27, 2005, Epstein informed Gooch that respondents terminated the agreement on the grounds that Gooch was often in arrears and had sublet the space without respondents' knowledge or permission. Epstein thus requested that Gooch vacate the space by the end of October. (Affidavit of Mark Epstein, dated Nov. 14, 2005 [Epstein Affid.], Exh. 1).
On November 2, 2005, respondents cashed petitioner's November check. (Gooch Affid., Exh. D). On November 3, 2005, respondents changed the locks to the premises while Gooch was out of town. Epstein informed Gooch in an email of the reasons for changing the locks, namely, Gooch's changing of the locks without Epstein's knowledge or permission, the improper subletting, and Gooch's late payment of fees. Epstein offered Gooch an opportunity to remove his property from the premises. (Epstein Affid., ¶¶ 9-12, Exh. 3). On or about November 10, 2005, respondents issued two checks, one refunding to Echelon its November payment and the other refunding to Gooch his security deposit. ( Id., ¶ 13, Exh. 4).
II. CONTENTIONS
Petitioner argues that respondents illegally evicted it and it is thus entitled to be restored to the premises. It maintains that after the agreement expired and by virtue of respondents' consent to its continued occupancy and acceptance of its monthly payments, it became a month-to-month tenant and, as such, it was entitled to statutory notice of termination prior to eviction. Petitioner also moves to amend the petition to add Gooch as a party-petitioner as Gooch was in possession of the premises pursuant to the assignment of the Nellens agreement and has been paying rent to respondents, albeit in petitioner's name. Petitioner seeks damages pursuant to RPAPL 853.
Respondents move to dismiss the petition, arguing that petitioner has no standing as it is not a "person" within the meaning of RPAPL 713 or 721, was not a lessee of the premises, and was not "forcibly put out or kept out" of the premises within the meaning of RPAPL 721. They deny that they unlawfully evicted petitioner or Gooch, as they justifiably changed the locks once Gooch changed them without their permission and without giving them a key to the new locks, and as Gooch's license was properly terminated. They allege that the November check was cashed in error by their managing agent, an error promptly corrected by their return of not only the check but the security deposit. Respondents also argue that even if the license is deemed a lease, Gooch only became a month-to-month tenant who could be terminated upon 30-days' notice, which notice "has since expired." (Respondents' Memorandum of Law, dated Nov. 14, 2005 [Memo of Law], II.A., B., fn. 3).
Respondents also seek dismissal on the ground that petitioner failed to serve upon them a notice to quit pursuant to RPAPL 713 prior to commencing this proceeding, and as against Epstein on the ground that he cannot be held liable in this proceeding as his alleged conduct was undertaken in the course of his employment by Dara. As an alternative to dismissal, respondents request leave to conduct an examination before trial of Gooch and limited document discovery, as they are unprepared to meet petitioners' proof of damages concerning, for example, lost revenue, lost business opportunities, and missing equipment. Respondents deny having discarded or destroyed Gooch's personal property. (Epstein Affid., ¶ 11).
In their reply memorandum of law, respondents allege for the first time that the petition must be dismissed based on petitioner's failure to comply with Section 206 of the New York Limited Liability Company Law.
Respondents oppose the proposed amendment of the petition on the ground that petitioner was aware from the outset that Gooch was the assignee of the license and has set forth no reason for its failure to name him as a party. They deny that Gooch is a necessary party.
III. MOTION TO AMEND
A party may amend its pleading at any time by leave of the court, and leave shall be freely given upon such terms as may be just. (CPLR 3025[b]). Parties may be added at any stage of the action by leave of the court. (CPLR 1003).
The court's determination as to whether a plaintiff may amend its complaint is discretionary. ( Murray v. City of New York, 43 NY2d 400, 404-405; Lanpont v. Savvas Cab Corp., Inc., 244 AD2d 208, 209 [1st Dept 1997]). In exercising its discretion, the court must consider whether the delay in seeking to amend would "surprise or prejudice" the opposing party ( Murray, 43 NY2d at 405; Lanpont, 244 AD2d at 209, 211; Norwood v. City of New York, 203 AD2d 147, 148 [1st Dept 1994], lv denied 84 NY2d 849), and whether the amendment is meritorious. ( Thomas Crimmins Contracting Co. v. City of New York, 74 NY2d 166, 170, affd 74 NY2d 166; Ancrum v. St. Barnabas Hosp., 301 AD2d 474, 475 [1st Dept 2003]). Mere lateness in moving to amend does not preclude the amendment without a showing of prejudice to the other party. ( Norwood, 203 AD2 at 148). However, the court may consider whether the failure to include the pleading at the commencement of the action was "motivated by a desire to keep something back until close to the time of trial . . ." (Weinstein-Korn-Miller, NY Civ Prac ¶ 3025.15).
In assessing the merits of a proposed amendment, the court must determine whether the movant set forth a prima facie cause of action with supporting facts and if so, whether any alleged insufficiency or lack of merit is clear and free from doubt. ( Daniels v. Empire-Orr, Inc., 151 AD2d 370, 371 [1st Dept 1989]). Thus, the motion must be supported by an affidavit of merit and evidentiary proof sufficient to withstand a motion for summary judgment. ( Zaid Theatre Corp. v. Sona Realty Co., 18 AD3d 352 [1st Dept 2005]; Cushman Wakefield, Inc. v. John David, Inc., 25 AD2d 133, 135 [1st Dept 1966]).
As Gooch was a party to the agreement with respondents, there is a sufficient basis upon which to add him as a petitioner. Petitioner's initial failure to name him as a party is immaterial absent any claim or demonstration of prejudice by respondents or any indication that petitioner's failure to do so was improperly motivated. Rather, having argued that petitioner has no standing to maintain the petition, respondents' opposition to the amendment fails, based as it is on the contrary and erroneous assertion that Gooch is not a necessary party. Accordingly, the motion to amend is granted and I proceed to address the parties' arguments with Gooch as a petitioner.
IV. JUDGMENT ON THE PETITION
Summary judgment may be granted upon a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence sufficient to eliminate material issues of fact. (CPLR 3212[b]; Alvarez v. Prospect Hosp., 68 NY2d 320, 324; Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853). To defeat a plaintiff's motion for summary judgment, a defendant must "rebut [the plaintiff's] prima facie showing" ( Bethlehem Steel Corp. v. Solow, 51 NY2d 870, 872), by producing "evidentiary proof in admissible form sufficient to require a trial of material questions of fact." ( GTF Mktg. v. Colonial Aluminum Sales, 66 NY2d 965, 968; Zuckerman v. City of New York, 49 NY2d 557, 562). Conclusory allegations are insufficient to defeat the motion. ( Zuckerman, 49 NY2d 562).
In deciding the motion, the court must draw all reasonable inferences in favor of the non-moving party and must not decide credibility issues. ( Dauman Displays, Inc. v. Masturzo, 168 AD2d 204 [1st Dept 1990]; lv denied 77 NY2d 939). As summary judgment is a drastic remedy which deprives a party of being heard, it should not be granted where there is any doubt as to the existence of a triable issue of fact ( Chemical Bank v. West 95th Street Development Corp., 161 AD2d 618 [1st Dept 1990], or where the issue is even arguable or debatable. ( Stone v. Goodman, 8 NY2d 8).
Pursuant to CPLR 3211, a party may move for an order dismissing one or more causes of action asserted against it on the grounds that the court lacks subject matter jurisdiction (CPLR 3211[a][2]), the party asserting the cause of action lacks standing to sue (CPLR 3211[a][3]), the pleading fails to state a cause of action (CPLR 3211[a][7]), and the court lacks personal jurisdiction over it (CPLR 3211[a][8]). On a motion to dismiss brought pursuant to CPLR 3211, the court must presume the facts pleaded to be true and must accord them every favorable inference. ( Cron v. Hargro Fabrics, Inc., 91 NY2d 362, 366; Delran v. Prada USA Corp., 23 AD3d 308 [1st Dept 2005]). The court may not assess the merits of the pleading or the facts underlying it, but may only determine whether it states the elements of a legally cognizable cause of action. ( Skillgames, LLC v. Brody, 1 AD3d 247, 250 [1st Dept 2003]).
1. The nature of the agreement
In the first instance, I must resolve whether the agreement between Gooch and respondents constituted a license or a lease.
The difference between a license and a lease is that a lease conveys to the lessee absolute possession and control of the premises for a specific term and rent, subject to the lessor's rights, whereas a licensee does not obtain exclusive possession, and its right to possession is revocable at will and without cause. (Finkelstein and Ferrara, Landlord and Tenant Practice in New York § 3:22, 23 [West's NY Prac Series 2004]; American Jewish Theatre, Inc. v. Roundabout Theatre Co., Inc., 203 AD2d 155, 156 [1st Dept 1994]). Parties' characterization of an agreement is not dispositive. ( The Statement, Inc. v. Pilgrim's Landing, Inc., 49 AD2d 28, 33 [4th Dept 1975]; Federation of Organizations, Inc. v. Bauer, 6 Misc 3d 10 [App Term, 9th 10th Jud Dists 2004]).
The agreement conveyed to Gooch possession of a studio space in the premises for a specific term and rent, with respondents' retention of certain rights. Its default provisions provide for termination only upon Gooch's default and his failure to cure within a specified period. Thus, the agreement is not revocable at will or without cause. ( See American Jewish Theatre, Inc., 203 AD2d at 156 [landlord-tenant relationship created where party's interest in other's property existed for fixed term, was not revocable at will, and was terminable only on notice]; The Statement, Inc., 49 AD2d at 33 [agreement was lease as it granted right of absolute control of premises to plaintiff on specified date and included an agreed rental to be paid]).
The agreement also contains several provisions ordinarily found in leases such as those governing indemnification, repairs and alternations, insurance, notices, surrender of premises, and assignment and subletting. ( See Nextel of NY, Inc. v. Time Mgt. Corp., 297 AD2d 282, 283 [2nd Dept 2002] [agreement found to be lease as it contained provisions typical of lease, such as rental term for five years with automatic renewal and expressly granted right of quiet enjoyment]).
Absent any triable issue of fact as to the nature of the agreement, I find that it is a lease rather than a license, and that there exists a landlord/tenant relationship between Gooch and respondents.
2. The nature of the tenancy
Real Property Law (RPL) § 232-c provides that:
where a tenant whose term is longer than one month holds over after the expiration of such term . . . [and] if the landlord shall accept rent for any period subsequent to the expiration of such term, then, unless an agreement either express or implied is made providing otherwise, the tenancy created by the acceptance of such rent shall be a tenancy from month to month commencing on the first day after the expiration of such term.
Here, it is undisputed that after the agreement expired by its terms in February 2005, respondents continued to accept from petitioner monthly payments through November 2005. Respondents have failed to prove, by admissible evidence, that there was an agreement, express or implied, as to the nature of the tenancy following the expiration of the agreement, and while respondents' return of the November check reflects their intent that petitioner's occupancy end, Gooch's status as a month-to-month tenant for more than 30 days prior to November had already arisen once respondents accepted petitioner's checks in March 2005, thereby requiring 30-days' notice before termination. ( See IV.4).
Although respondents argue that the agreement was and remained a license terminable at will after February 2005, they concede that if the agreement is deemed a lease, their acceptance of rent created a month-to-month tenancy. (Memo of Law, II.A., fn.3). Having held that the agreement is a lease, I find that no triable issue of fact is raised as to Gooch's status as a month-to-month tenant. In any event, the result is the same even if the agreement was a license. ( See City of NY v. State of NY, 211 AD2d 539 [1st Dept 1995], affd as mod 87 NY2d 982 [after the parties' license agreement expired, defendant became holdover tenant and acceptance of rent created month-to-month tenancy]).
3. Standing
Pursuant to RPAPL 721(4) a summary proceeding may be maintained by a person forcibly put out or kept out of premises. "Force" has been defined as "physical means," rather than "physical force." ( Carter v. Andriani, 84 AD2d 513, 514 [1st Dept 1981], lv denied 55 NY2d 877). The existence of a landlord-tenant relationship is not a prerequisite to bringing a forcible entry proceeding. ( Dixon v. Fanny Grunberg and Assoc., LLC, 4 Misc 3d 139 [A] [App Term, 1st Dept 2004]).
Pursuant to RPAPL 713(10), a special proceeding may be maintained when:
The person in possession has entered the property or remains in possession by force or unlawful means and he or his predecessor in interest was not in quiet possession for three years before the time of the forcible or unlawful entry or detainer and the petitioner was peaceably in actual possession at the time of the forcible or unlawful entry or in constructive possession at the time of the forcible or unlawful detainer; no notice to quit shall be required in order to maintain a proceeding under this subdivision.
Thus, in order to maintain a proceeding under this statute, the petitioner must establish that: 1) the respondent in possession entered the premises by force or unlawful means; 2) that the respondent was not in quiet possession for three years prior to the forcible or unlawful entry; and 3) that the petitioner was peaceably in actual or constructive possession of the premises at the time of the respondent's forcible or unlawful entry. To constitute an entry by force or unlawful means, the changing of locks must be intended to oust the tenant. ( C.E. Towers Co. v. Trinidad and Tobago, 903 F Supp 515 [SDNY 1995]). A notice to quit is not required.
Despite the use of the term "person," a petition under this statute may be brought by a commercial entity. ( See e.g. Jovana Spaghetti House, Inc. v. Heritage Co. of Massena, 189 AD2d 1041 [3rd Dept 1993] [analyzing petitioner's claim of illegal eviction pursuant to RPAPL 713(10)]). A landlord-tenant relationship is not required. ( See Banks v. 508 Columbus Properties, 8 Misc 3d 135 [A] [1st Dept 2005] [fact that petitioner's wife was sole tenant of record was no basis for denying restoration of premises to petitioner pursuant to RPAPL 713(10)]). Consequently, there is no statutory obstacle to petitioner bringing the instant proceeding.
Here, it is undisputed that immediately after attempting to terminate the agreement with Gooch and despite their awareness that he was out of town, respondents changed the locks and notified Gooch only that he could remove his property from the premises. Despite their claim of justification, respondents made no attempt to obtain Gooch's new keys prior to changing his new locks or give Gooch a copy of the keys to their new locks. The totality of these circumstances evinces respondents' intent to permanently exclude petitioner and Gooch from the premises and absent any allegation to the contrary, I find that respondents have failed to raise a triable issue of fact as to whether their actions resulted in an eviction of them from the premises. (See 74 NY Jur 2d, Landlord and Tenant § 290 [acts of landlord which exclude tenant from premises, such as entering premises in tenant's absence, changing lock, and retaining key, constitute eviction]; West Broadway Glass Co. v. Namaskaar of Soho, Inc., 7 Misc 3d 1021 [A] [Civ Ct, New York County 2005] [nonpayment petition dismissed and tenant entitled to damages where landlord changed locks and refused to provide tenant with new keys, thus actually evicting tenant]). That petitioners could have obtained access to the premises from their subtenants is immaterial. ( West Broadway Glass Co., 7 Misc 3d at 3 [subtenant's possession of key to premises is not equivalent to possession by tenant]).
An eviction is unlawful when a landlord changes the locks or in any other way attempts to evict the tenant without using judicial process. ( Romanello v. Hirschfeld, 63 NY2d 613 [summary judgment granted on claim of wrongful eviction where tenant's property was removed, new locks were installed on door, and tenant was denied access]; Francis v. Reid, NYLJ, July 17, 1996, at 26, col 5 [City Ct, Westchester County]). Thus, by changing the locks with the intent to evict petitioners, respondents gained possession unlawfully. Respondents were not in possession of the premises for at least three years prior to their entry, as the agreement with Gooch's predecessor began in 2002. Finally, it is not seriously disputed that petitioner and Gooch were in actual and quiet possession of the premises at the time that respondents changed the locks, notwithstanding Gooch's temporary absence.
For all of these reasons, I find that Gooch has standing to bring the instant proceeding under either RPAPL 713(10) or 721(4) and that petitioner has standing under RPAPL 713(10).
4. Entitlement to relief
Real Property Law § 232-a prohibits the removal of a holdover monthly tenant absent written notice of termination at least 30 days before expiration of its term, served in the same manner as is provided for service of a notice of petition and petition.
To the extent that respondents rely on Epstein's October 27, 2005 email as a 30-day notice of termination, I find that it failed to give petitioners the required notice to vacate, that it was not served pursuant to RPL § 232-a, and that it did not advise petitioners that unless they vacated the premises on the termination date, respondents would commence summary proceedings under the statute to remove them from the premises. Consequently, by evicting petitioners without properly terminating their tenancy, respondents did so unlawfully.
Pursuant to the pertinent provisions of RPAPL 853, "if a person is disseized, ejected, or put out of real property in a forcible or unlawful manner . . . he is entitled to recover treble damages in an action therefor against the wrong-doer." The statute does not require physical force or violence ( Lee v. Park, 16 AD3d 986 [3rd Dept 2005]), and commercial entities have obtained relief under it. ( See e.g. Long Island Airports Limo. Svce. Corp. v. Northwest Airlines, 124 AD2d 711, 714 [2nd Dept 1986]). Damages include those resulting from the destruction, removal or discarding of property during the course of the eviction, lost profits, and punitive damages. ( See H P Research, Inc. v. Liza Realty Corp., 943 F Supp 328 [SDNY 1996]).
As petitioner Echelon was not a party to the lease, it is not entitled to damages. ( Bozewicz v. Nash Metalware Co., Inc., 284 AD2d 288, 289 [2nd Dept 2001]). However, having found that respondents failed to raise a triable issue of fact with respect to Gooch's unlawful eviction, I find that Gooch is entitled to damages. A hearing is ordered with respect to his damages.
5. Epstein's liability
Pursuant to RPAPL 853, a person wrongfully ejected from premises may maintain an action against the "wrong-doer." Absent any triable issue of fact as to Epstein's participation in the unlawful eviction, he is liable for damages. ( See Retropolis, Inc. v. 14th St. Development LLC, 17 AD3d 209 [1st Dept 2005] [RPAPL 853 claim against individual member of LLC that evicted tenant may be maintained]).
6. Limited Liability Company (LLC) Law § 206
Respondents' motion to dismiss the petition on the ground that petitioner failed to comply with LLC Law § 206 was interposed for the first time in their reply papers. As petitioners responded to it in their post-trial submission without objection, I will address it notwithstanding its procedural impropriety. ( Cf Wal-Mart Stores, Inc. v. U.S. Fidelity and Guar. Co., 11 AD3d 300 [1st Dept 2004] [on motion to dismiss, motion court properly declined to reach defendant's argument on ground that it was improperly raised for first time in reply]).
A limited liability company must, within 120 days after filing its initial articles of organization, publish a copy of the articles or a notice containing their substance once a week for six successive weeks in two newspapers of the county in which the office of the limited liability company is located. The failure to do so and the failure to file proof of publication within 120 days of the effective date of the articles "shall prohibit the limited liability company from maintaining any action or special proceeding in this state unless and until such limited liability company causes such notice to be published and files such proof of publication." (LLC Law § 206).
It has been persuasively held that a failure to comply with the requirements of LLC Law § 206 does not constitute a jurisdictional defect warranting dismissal. ( See Acquisition America VI, LLC v. Lamadore, 5 Misc 3d 461 [Civ Ct, New York County 2004]; cf Cohen v. OrthoNet New York IPA, Inc., 19 AD3d 261 [1st Dept 2005] [GBL 130 requirement of filing certificate of doing business under assumed name prior to maintenance of action or proceeding is not jurisdictional and failure to file can be cured prior to entry of judgment]; Parker 24 Commercial Associates v. Sakow, Civ Ct, New York County, Oct. 11, 2005, Jaffe, J., LT Index No. 70347/05 [petitioner's failure to file partnership certificate may be cured at any time prior to entry of judgment]).
Although petitioner has not published its articles of organization which were filed on May 15, 2003, I hold that it is not precluded from maintaining the instant proceeding.
7. Discovery
In special proceedings, leave of court is required to obtain disclosure except for notices to admit. (CPLR 408). Leave to conduct discovery may be granted where the moving party establishes: 1) a viable cause of action or defense; 2) a need to determine information directly related to the cause of action; 3) that the requested disclosure is carefully tailored and likely to clarify the disputed facts; 4) that prejudice will not result from granting the motion; 5) that if there is any prejudice, it can be diminished; and 6) that the court in its supervisory role can structure discovery to protect the non-moving party. ( New York Univ. v. Farkas, 121 Misc 2d 643, 647 [Civ Ct, New York County 1983]).
I find that respondents have established a viable defense to petitioners' claim for damages, that they have asserted a need for information concerning that claim, that the requested discovery is directly related to their defense, that their request is limited and will likely lead to clarification of the disputed facts for trial, and that prejudice will not result as petitioners are being restored to possession of the premises with only the damages issue outstanding. However, absent the proposed documents requested, the need for them cannot be discerned. Consequently, respondents' motion to conduct an examination before trial of Gooch is granted and their motion to serve document requests upon petitioners is denied without prejudice to renewal upon the submission of specific document requests.
V. CONCLUSION
For all of these reasons, the motion for an order amending the caption to add Gordon Gooch as a petitioner-tenant is granted. Petitioners are directed to serve a copy of their amended complaint on respondents within 10 days of the date of this decision. Petitioners' motion for an order restoring them to immediate possession of the premises is granted. Respondents' cross-motion to dismiss is denied in its entirety.
This constitutes the decision and order of the court.