Opinion
Index No. LT-313094-22/BX
03-08-2023
Grand Concourse 8 Associates LLC, Petitioner(s) v. Barry A. Weinstein; Goldstein & Weinstein; Michael Nedik; Schwartzapfel Lawyers; Steven J. Schwartzapfel DBA Schwartzapfel Lawyers; Christopher Holbrook DBA Schwartzapfel Lawyers; Michael Reiner DBA Schwartzapfel Lawyers; "J." "Doe" 1; "J." "Doe" 2; "J." "Doe" 3; "J." "Doe" 4; "XYZ Corp. #1"; "XYZ Corp. #2", Respondent(s)
Unpublished Opinion
Hon. Jeffrey S. Zellan, Civil Court Judge (NYC)
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Order to show Cause/ Notice of Motion and
Affidavits /Affirmations annexed 1
Answering Affidavits/ Affirmations 2
Reply Affidavits/ Affirmations 3
Memoranda of Law
Other
Upon the foregoing cited papers, the Decision/ Order on the Motion is as follows:
In this commercial nonpayment proceeding, petitioner-landlord seeks summary judgment against respondent-tenant Barry A. Weinstein only, and seeks to discontinue this proceeding against all other respondents in this proceeding. For the reasons set forth below, the instant motion is granted in part and denied in part, and this proceeding is scheduled for trial to resolve outstanding issues of fact pursuant to CPLR 3212(g).
As to that branch of petitioner's motion seeking a discontinuance without prejudice as against respondents Goldstein & Weinstein; Michael Nedick, Schwartzapfel Lawyers; Steven J. Schwartzapfel; Christopher Holbrook d/b/a Schwartzapfel Lawyers; Michael Reiner d/b/a Schwartzapfel Lawyers, J. Doe #1; J. Doe #2; J. Doe #3; J. Doe #4; XYZ Corp #1; and XYZ Corp. #2 without prejudice (see, CPLR 3217(b)), respondents do not oppose and, accordingly, the Court grants that branch of petitioner's motion. (Aff. in Opp., ¶ 1).
To the extent respondents' answer asserted counterclaims on behalf of these now-discontinued respondents (other than respondent Weinstein), which is unclear from both the answer itself and the papers in the instant motion, the Court notes its discretion pursuant to CPLR 3217(b) to impose terms and conditions upon granting a discontinuance without prejudice after an answer has been filed, and will similarly discontinue any counterclaims in this action asserted by respondents Goldstein & Weinstein; Michael Nedick, Schwartzapfel Lawyers; Steven J. Schwartzapfel; Christopher Holbrook d/b/a Schwartzapfel Lawyers; Michael Reiner d/b/a Schwartzapfel Lawyers, J. Doe #1; J. Doe #2; J. Doe #3; J. Doe #4; XYZ Corp #1; and XYZ Corp. #2 without prejudice.
As to that branch of petitioner's motion seeking summary judgment as against respondent Weinstein, respondents oppose based upon the affirmative defenses and counterclaims pled, and that portion of the motion is granted in part and denied in part. There is no dispute that Weinstein leased the subject premises - a law office - from petitioner. (Aff. in Supp., Exs. C and D). Nor is there any apparent dispute concerning the amount of unpaid rent. (Aff. in Supp., Ex. E). Petitioner also does not, apparently, dispute the seemingly poor condition of the premises. (Aff. in Supp, ¶¶ 20-24; Mem. of Law in Supp., at 5-6; and Mem. of Law in Reply, at 2). However, the parties vigorously dispute their respective rights and obligations under the lease - a Blumberg standard form lease (the "Lease") as modified by an additional rider (the "Rider") and the parties' signed option agreement (the "Option Agreement") - and the impact of these documents upon the amount to which Weinstein's outstanding rent should be abated, if any, which the Court addresses in turn after having searched the record.
The Court notes that, while respondents' answer to the petition and affirmation in opposition to the instant motion are not properly verified pursuant to CPLR 2106(a) (as the named affiant is a party to this proceeding) and might therefore be facially inadmissible for purposes of summary judgment, the Court will excuse that defect and considers respondents' submissions. Petitioner has specifically admitted having reviewed the papers in question and has not objected to them. (Aff. in Supp., ¶ 5; Mem. of Law in Reply, at 2). Cf., Reem Contr. v. Altschul & Altschul, 2022 NY Slip Op 34430(U), *8 (Sup. Ct., New York Co. 2022) (noting opposing party's objection to unsworn expert report submitted in support of summary judgment motion). Strict compliance with CPLR 2106(a) is waivable in circumstances such as this - where an attorney jointly represents himself and several co-respondents - and petitioner has waived the issue by failing to timely object to respondents' submissions in any event. See, Nesbitt v. Queens Co. Fam. Ct., Index No. 710551/2021, 2021 NY Misc. LEXIS 4901, *1 (Sup. Ct., Queens Co. 2021) (noting that strict compliance with affidavit requirement would be unduly prejudicial to co-defendants represented by self-represented attorney); and Kilgore v. City of New York, 76 Misc.3d 1228 (A), *5 n. 9 (Civ. Ct., Bronx Co. 2022) (opposing party waives objection to unsworn affidavits by not timely objecting to them).
The Court notes that the parties' arguments hinge on the text and interpretation of their lease agreement, but lack detailed citations to that lease agreement in crucial areas to facilitate searching the record for support to those arguments. See, e.g., Credit Corp. Solutions v. White, Index No. CV-14355-19/BX, slip op., at *1-2 (Civ. Ct., Bronx Co. Mar. 17, 2022), citing Topps Co. v. Koko's Confectionary & Novelty, Dkt No. 16-cv-5954, 2018 U.S. Dist. LEXIS 158261, *18 (S.D.NY Sept. 17 2018) ("Without more direction to relevant portions [of evidence in plaintiff's motion for summary judgment] the Court spends unnecessary time searching through chaff for the information necessary to consider plaintiff's motion.")
Respondent's Ability to Assert Affirmative Defenses and Counterclaims in This Proceeding
As a threshold matter, petitioner asserts that Weinstein may not assert counterclaims or affirmative defenses in this proceeding. (Mem. of Law in Supp., at 5; and Mem. of Law in Reply, at 4). Petitioner is wrong. RPAPL § 743 permits respondents in summary landlord/tenant proceedings to interpose counterclaims. While tenants may waive their right to interpose affirmative defenses and counterclaims - which petitioner asserts Weinstein did - any such waiver much be clear and unmistakable. See, P.S. 85th St. F.L.P. v. Demos, 17 Misc.3d 1139 (A), *1 (Civ. Ct., Kings Co. 2007).
In support of waiver, petitioner offers paragraph 36 of the Rider, which states in relevant part that "[a]ll rent shall be paid to Landlord without notice, demand, counterclaim, setoff, deduction or defense, and nothing shall suspend, defer, diminish, abate or reduce any rent, except as otherwise specifically provided in this lease or as provided by law." Courts have considered and rejected this specific type of waiver language to pay the stipulated rent without offsets or deductions as ambiguous and insufficiently clear to constitute a broad waiver of the right to interpose affirmative defenses or counterclaims for decades. See, e.g., Witthattan Realty Co. v. H. Abraham, Inc., 18 Misc.2d 239, 239-240 (App. Term, 2d Dept. 1959), affd. without op., 10 A.D.2d 721 (2d Dept.), lv. denied, 10 A.D.2d 874 (2d Dept. 1960) (tenant's agreement to pay stipulated rent without offset or deduction, without more, is not a waiver of a tenant's statutory right to assert offsets or deductions). See also, 3 Rasch's Landlord & Tenant Including Summary Proceedings (4th ed.) (Dolan, ed. 1998; Supp. 2005); and Friedman on Leases § 5.102 A., Covenant to Pay Rent Without Offset or Deduction (1997). Additionally, the modifying clause at the end of the purported waiver provision - "except as otherwise specifically provided in this lease or as provided by law" - greatly limits the scope of the preceding clause's waiver, as defenses and counterclaims are expressly permitted by law pursuant to RPAPL § 743. See also, NFL Enters. LLC v. Comcast Cable Communications, LLC, 51 A.D.3d 52, 61 (1st Dept. 2008), quoting Pepco Contr. of New York, Inc. v. CNA Ins. Co., 15 A.D.3d 464, 465 (2d Dept. 2005) (ambiguous contract terms preclude summary judgment).
Further, even if, arguendo, Weinstein is precluded from asserting counterclaims by the terms of the lease, that is a separate question from whether Weinstein may assert affirmative defenses to petitioner's claims. Petitioner's suggestion that respondent would not only be precluded from asserting counterclaims but also barred from asserting affirmative defenses (such as abatement) would, even if supported by the express text of the lease agreement (which it is not) be contrary to the plain text of RPAPL § 743 and likely unconscionable. See, Squadron Bvld. Realty Co. v. Emrite, Inc., 99 Misc.2d 975, 976-977 (Rockland Co. Ct. 1979). Accordingly, the Court finds that Weinstein's counterclaims are not barred. Even if they were, Weinstein asserts grounds for abatement that are essentially an affirmative defense.
That Weinstein is an attorney of long experience is of some note in considering the conscionability of the lease agreement terms he signed. (Mem. of Law in Reply, at 3). However, petitioner's apparent presumption that all legal professionals "are knowledgeable about every field of law, however specialized is incorrect." Chicago Truck Drivers v. CPC Logistics, Inc., 698 F.3d 346, 350 (7th Cir. 2012).
Abatement for Violations of the Warranties of Quiet Use and Enjoyment and Habitability
Petitioner asserts that, as a commercial tenant, Weinstein does not benefit from the implied warranties of habitability and quiet use and enjoyment. (Mem. of Law in Supp., at 5-6; and Mem. of Law in Reply, at 2-3). While this may be correct, with regard to implied warranties of habitability and quiet use and enjoyment in a commercial setting, there is nothing that precludes commercial parties from consenting to an express right to quiet use and enjoyment in their lease agreement. In this instance, the Lease expressly provides that "Tenant shall quietly enjoy the demised premises." (Lease, Landlord's Covenants, ¶ 1). Further, petitioner concedes that a violation of the warranty of quiet use and enjoyment rising to the level of constructive eviction would form the basis of a viable claim even under petitioner's interpretation of the lease. (Mem. of Law in Reply, at 2-3). Thus, Weinstein may assert this counterclaim.
Petitioner has not met its burden in seeking summary judgment on the issues of habitability or quiet use and enjoyment. What petitioner characterizes as merely "47 random exhibits" submitted in opposition do not, in fact, "miss the mark," and are instead a range of photographs potentially corroborating Weinstein's position that the premises has been rendered uninhabitable and anything but enjoyably usable. (Aff. in Opp., Exs. 1-47). The exhibits annexed to the answer are similarly supportive of Weinstein's assertions. (Answer, Exs. A-H). The Court also notes that that petitioner seemingly does not materially refute the conditions of the leased premises as alleged. Thus, regardless of whether the "47 random exhibits" ultimately establish Weinstein's claims, they sufficiently raise triable issues of fact as to petitioner's violation of the express warranties of habitability and quiet use and enjoyment and any resulting damages that might form the basis of an abatement of the outstanding rent.
Abatement for Damage or Lack of Repairs
Petitioner broadly asserts that the lease does not permit any abatement for damage or repairs. (Mem. of Law in Supp., at 5). In support of this assertion, petitioner relie supon the terms of the form lease requiring Weinstein to "take good care of the demised premises, fixtures and appurtenances, and all alterations, additions and improvements to either; make all repairs in and about the same necessary to preserve them in good order and condition, which repairs shall be in quality and class, equal to the original work." (Aff. in Support, ¶ 21; and Lease, Joint Covenant 2). However, the Lease - at Joint Covenant 4 - also states that "[i]f the demised premises shall be partially damaged by fire or other cause without the fault or neglect of Tenant, Tenant's servants, employees, visitors or licensees, the damages shall be repaired by and at the expense of Landlord," and of particular note, "the rent until such repairs shall be made shall be apportioned according to the part of the demised premises which is usable by Tenant." While the accompanying rider makes extensive modifications to the form lease - and controls pursuant to the rider's preamble - reading the terms "in the light of the obligation as a whole and the intention of the parties manifested thereby," the Court finds that petitioner remains responsible for damages resulting from petitioner's own negligence. Riverside S. Planning Corp. v. CRP/Extell Riverside L.P., 13 N.Y.3d 398, 404 (2009), quoting Atwater & Co. v. Panama R.R. Co., 246 NY 519, 524 (1927). Accordingly, summary judgment on the issue of an abatement arising from alleged damages and/or failures to repair is denied.
Although paragraph 37 of the Rider notes that petitioner "shall not be responsible for making any improvements, alterations or repairs therein or for spending any other money to prepare the demised premises for Tenant's occupancy, except as expressly provided herein," and paragraph 38 states that petitioner "shall not be responsible to make any structural changes to the premises," that "[a]ny damage to the premises, shall be the sole responsibility of the Tenant," and "[r]egardless of who is the responsible party, Landlord shall not be responsible for any repairs or damage to the tenant's interior," that does not end the inquiry. At Weinstein's request, petitioner attempted certain repairs to the premises. (Answer, ¶¶ 7, 9, 11-12; and Aff. in Opp. ¶¶ 11 and 13). Paragraph 48 expressly excepts any damages from having been released by Weinstein "if caused by the Landlord's negligent act or omission." (Aff. in Supp., ¶ 23). To the extent that the Lease provided petitioner broader liability protections in Joint Covenant 13, the liability exception in Rider paragraph 48 is controlling pursuant to the terms of the Rider. (Rider, Preamble). Thus, even if petitioner was under no obligation to undertake those repairs, once petitioner did, Weinstein was required to acquiesce to that decision and petitioner assumed responsibility for damages caused by negligently-performed repairs. (Lease, Joint Covenant 2; and Rider, ¶ 48). Moreover, to the extent the liability waiver provisions are ambiguous, they should be construed against the drafter, petitioner, which would also suggest against granting petitioner summary judgment. See, Village of Illion v. County of Herkimer, 23 N.Y.3d 812, 820 (2014); and NFL Enters. LLC, supra.
Pursuant to Joint Covenant 13 of the Lease, "Landlord shall not be liable for any failure of water supply or electrical current, sprinkler damage, or failure of sprinkler service, nor for injury or damage to person or property caused by the elements or by other tenants or persons in said building, or resulting from steam, gas, electricity, water, rain or snow, which may leak or flow from any part of said buildings, or from the pipes, appliances or plumbing work of the same, or from the street or sub-surface, or from any other place, nor for interference with light or other incorporeal hereditaments by anybody other than the Landlord, or caused by operations by or for a governmental authority in construction of any public or quasi-public work, neither shall the Landlord be liable for any latent defect in the building."
Counterclaim for Specific Performance
In addition to compensatory damages, Weinstein counterclaims for specific performance by petitioner of a number of specified repairs and changes to the conditions at the premises as well as the rest of the building in which the premises are located. (Answer, Prayer for Relief, ¶¶ d-i). As to these counterclaims, the instant motion is granted, and these counterclaims are dismissed.
Even assuming that the counterclaims for specific performance are within the Court's limited equitable jurisdiction and that petitioner was affirmatively required to undertake the repairs sought pursuant to the lease terms themselves - which the Court assumes for these purposes without deciding - specific performance is not appropriate here. As a general matter, "[s]pecific performance is a proper remedy where the subject matter of the particular contract is unique and has no established market value," or in response "to breach of contract concerning goods that are unique in kind, quality or personal association where suitable substitutes are unobtainable or unreasonably difficult or inconvenient to procure." Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 415 (2001) (quotations and citations omitted). "In determining whether money damages would be an adequate remedy, a trial court must consider, among other factors, the difficulty of proving damages with reasonable certainty and of procuring a suitable substitute performance with a damages award." Id. None of that is the case here, where this proceeding concerns relatively routine (albeit perhaps substantial) repairs to a modest commercial office space. There is nothing "unique in kind, quality or personal association," in the repairs demanded in the counterclaims as contemplated in Sokoloff, and nothing that could not simply be remedied, as appropriate, by money damages subsequently compensating Weinstein for undertaking the repairs himself. Accordingly, the Court will not order specific performance.
Counterclaim for Punitive Damages
As to punitive damages, "the punitive damages request is dismissed as the allegations do not evince the requisite high degree of moral turpitude that demonstrates such wanton dishonesty as to imply a criminal indifference to civil obligations." E. Effects v. 3911 Lemmon Ave. Assocs., NYLJ, Dec. 7, 2022 at p.17, col.2, 2022 NYLJ LEXIS 2408, *7 (Sup. Ct., New York Co. 2022) (dismissing punitive damages claim for landlord's alleged breach of commercial lease obligation to perform repairs) (quotation and citations omitted). The Court of Appeals has held that "[p]unitive damages are not recoverable for an ordinary breach of contract as their purpose is not to remedy private wrongs but to vindicate public rights," that "a private party seeking to recover punitive damages must not only demonstrate egregious tortious conduct by which he or she was aggrieved, but also that such conduct was part of a pattern of similar conduct directed at the public generally," and as a consequence, "this extraordinary remedy will be available only in a limited number of instances"). Rocanova v. Equitable Life Assur. Socy., 83 N.Y.2d 603, 613 (1994). The record before the Court does not support such findings, and the Court will accordingly grant summary judgment dismissing Weinstein's counterclaim for punitive damages as well. However, the Court notes that the potential award of punitive damages - which the Court declines to do - is a separate question from whether compensatory damages, if any, would be subject to trebling pursuant to RPAPL § 853, which the Court does not decide here. See, H & P v. Liza Realty Corp., 943 F.Supp. 328, 330 (S.D.NY), adopted in full, 1996 U.S. Dist. LEXIS 15822 (S.D.NY Oct. 17, 1996).
Conclusion
According, it is
ORDERED that the instant motion is granted in part and denied in part; and it is further
ORDERED that this action is discontinued against Goldstein & Weinstein; Michael Nedick, Schwartzapfel Lawyers; Steven J. Schwartzapfel; Christopher Holbrook d/b/a Schwartzapfel Lawyers; Michael Reiner d/b/a Schwartzapfel Lawyers, J. Doe #1; J. Doe #2; J. Doe #3; J. Doe #4; XYZ Corp #1; and XYZ Corp. #2 without prejudice; and it if further
ORDERED that all counterclaims in this action by Goldstein & Weinstein; Michael Nedick, Schwartzapfel Lawyers; Steven J. Schwartzapfel; Christopher Holbrook d/b/a Schwartzapfel Lawyers; Michael Reiner d/b/a Schwartzapfel Lawyers, J. Doe #1; J. Doe #2; J. Doe #3; J. Doe #4; XYZ Corp #1; and XYZ Corp. #2 are discontinued without prejudice; and it is further
ORDERED that the clerk enter judgment in favor of petitioner and against respondent Barry A. Weinstein on Weinstein's counterclaim for specific performance related to the premises at issue in this action; and it is further
ORDERED that the clerk enter judgment in favor of petitioner and against respondent Barry A. Weinstein on Weinstein's counterclaim for punitive damages without prejudice to any claim for treble damages pursuant to RPAPL § 853; and it is further
ORDERED pursuant to CPLR 3212(g) that this proceeding is scheduled for trial on May 25, 2023 at 2:30 p.m., limited to the only remaining question in dispute, which is whether respondent Barry A. Weinstein is entitled to an abatement of the undisputed amount of unpaid rent, and the amount of such abatement, if any; and it is further
ORDERED that the parties are directed to notify any witnesses they intend to call of the above trial date; and it is further
ORDERED that the parties exchanges copies of any evidence they intend to rely upon at trial and which have not previously been exchange din discovery or motion practice no later than thirty days prior to the above trial date; and it is further
ORDERED that the parties bring three copies of any evidence they intend to reply upon at trial with them on the above trial date.
This constitutes the Decision and Order of the Court.