Opinion
LT-66425-19
08-02-2019
NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION, Petitioner-Landlord, v. SALMAR MASTER TENANT, LLC a/k/a Salmar Master Tenant, LLC, Salmar Properties, LLC, Respondent-Tenant, "XYZ Corp.", Respondent-Undertenant.
Attorney for Petitioner: Susan Kuznicki, Esq., Leon I. Behar, P.C., 347 Fifth Avenue, Suite 1506, New York, NY 10016 Attorney for Respondents: Melissa Ephron-Mandel, Esq., Ephron-Mandel & Howard, 299 Broadway, Suite 1615, New York, NY 10007
Attorney for Petitioner: Susan Kuznicki, Esq., Leon I. Behar, P.C., 347 Fifth Avenue, Suite 1506, New York, NY 10016
Attorney for Respondents: Melissa Ephron-Mandel, Esq., Ephron-Mandel & Howard, 299 Broadway, Suite 1615, New York, NY 10007
Odessa Kennedy, J.
RECITATION, AS REQUIRED BY CPLR 2219 (A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:
Notice of Motion and Affirmation in Support 1, 2
Affirmation in Opposition 3
Reply Affirmation 4
In a commercial holdover proceeding, Master Tenant LLC and Salmar Properties, LLC (hereinafter, "tenants") move for summary judgment to dismiss the complaint on the grounds that the Petition fails to fully and properly describe the leased premises sought to be recovered.
New York City Economic Development Corporation, (hereinafter, "landlord") leased a parking lot to the tenants which it now seeks to evict in this summary proceeding. The petition describes the leased premises as "South Brooklyn Marine Terminal 31st Street and Second Avenue, Parking Lot Brooklyn, New York."
Tenants contend that the petition is defective as it fails to fully and sufficiently describe the subject premises. A petition must "describe the premises from which removal is sought" ( RPAPL § 741(3) ) by accurately specifying the "exact location of the premises in sufficient detail to marshal executing the warrant to locate the premises and effect an eviction without additional information." (See, Sixth St. Community Ctr, Inc. v. Episcopal Social Services , 19 Misc 3d 1143[A] [Civil Ct. NY Co. 2008]. See also, US Airways, Inc v. Everything Yogurt Brands, Inc ., 18 Misc 3d 136[A] [App Term, 2d Dept, 2d & 11th Jud Dists 2008] )
In support of the motion, tenants submit an affidavit from landlord's site manager, Mr. Garza, dated June 5, 2019, stating that there are "several parking lots at South Brooklyn Terminal." Tenants argue that the term "parking lot" used in the petition to identify the leased premise is vague as it does not properly identify the particular parking lot occupied by the tenants herein.
In opposition to a prior motion made by tenants to dismiss the complaint based on improper service, landlord provided tenants affidavits from its site manager Mr. Garza, and the process server, Mr. Woel dated June 5, 2019 which tenants submit in support of the instant motion
Significantly, Mr. Garza's affidavit further states that as multiple parking lots are located at South Brooklyn Terminal, he met with the process server, retained to serve the tenants in the instant action, on March 26, 2019 and "showed him which parking lots is occupied by the tenant."
In a June 5, 2019 affidavit, the process server, Mr. Woel, confirms that he met with Mr. Garza on March 26, 2019 "to be shown the parking lot occupied by the tenant so that proper service can be effectuated."
Tenants argue that Mr. Woel's statement that he met with Mr. Garza to be shown the premises to effectuate service, coupled with Mr. Garza's willingness to meet with him to identify the parking lot, among the multiple parking lots at the Terminal, substantiates that the leased premises cannot be identified with certainty, solely based on its description in the petition. As a petition must describe the precise location of the premises in sufficient detail to allow a marshal to locate the premises without additional information, tenants contend that the petition is deficient and must be dismissed.
On a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law by advancing sufficient evidentiary proof in admissible form to demonstrate the absence of any material issues of fact. (See , Zuckerman v. City of New York , 49 NY2d 557 [1980] ) Once this showing has been made, however, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. (Id. )
The court finds that the affidavits of Mr. Garza and Mr. Woel dated June 5, 2019 establish a prima facie showing that the subject parking lot could not reasonably be located exclusively based on its description in the petition.
The burden shifts to the landlord to show by evidentiary proof the existence of a triable issue of material fact. In opposition, landlord submits additional affidavits from Mr. Garza and Mr. Woel dated June 27, 2019. In the new affidavit, Mr. Woel states that the only reason he met with Mr. Garza on March 26, 2019, was for Mr. Garza to witness Mr. Woel's service of process on the tenants, and that Mr. Woel in fact had "no difficulty locating tenant's subject parking lot" without Mr. Garza's assistance.
Mr. Woel further adds that the landlord had commenced a prior identical proceeding against the tenants regarding the subject parking lot, and that Mr. Woel had effectuated service on the tenants in that action, without a witness to the service. The tenants in the prior action, subsequently denied having been served, and without a witness to corroborate service, the landlord discontinued the prior action to avoid delay resulting from a traverse hearing and commenced the subject action.
To "clarify" his original affidavit, landlord further submits a subsequent affidavit from Mr. Garza dated June 27, 2019, which states he accompanied Mr. Woel on March 26, 2019 "to witness" service, as opposed to showing him the particular parking lot occupied by the tenants.
Contrary to landlord's contentions, Mr. Garza and Mr. Woel's additional affidavits do not clarify, but rather contradict their original affidavits, in which each had stated that the purpose of their meeting was for Mr. Garza to show Mr. Woel the parking lot occupied by the tenants. Further, in their original affidavits, neither Mr. Garza nor Mr. Woel made any reference to Mr. Garza's mission to serve as a witness.
As the subsequent affidavits submitted by Mr. Garza and Mr. Woel contradict their prior affidavits, they are insufficient to raise a question of fact. (See Batashvili v Veliz-Palacios , 179 AD3d 791, [2d Dept 2019], holding that defendant's affidavit was a belated to avoid the consequences of his earlier admission by raising what appeared to be a feigned issue of fact, which was insufficient to defeat the motion. See also, Kraynova v. Lowy , 166 AD3d 600 [2d Dept 2018] )
Mr. Woel's second affidavit, stating that he had no difficulty locating the tenant's parking lot in the instant proceeding, and that Mr. Garza met him to witness service, is further undermined by Mr. Woel's affidavit of service, which states that service was effectuated "as directed by" Mr. Garza. The assertion that Mr. Garza directed Mr. Woel to effectuate service starkly contrasts with Mr. Garza's alleged role as a mere witness to Mr. Woel's service of process. Moreover, if Mr. Garza's purpose was to merely witness service, rather than direct it, it is inexplicable that he did not meet Mr. Woel at the parking lot where service was to be performed, but instead met him "near" the location.
Finally, landlord submits affidavits from tenant's employees, who uniformly state that the subject parking lot is located on "31st Street and Second Avenue." The landlord argues that the tenants' description of the premises is the same as that contained in the petition, which proves that the petition correctly identifies the subject premises.
Even though the landlord attempts to prove the accuracy of the petition's description of the premises, the gravamen of the motion is not the inaccuracy, but rather, the insufficiency of detail in the description. (See e.g., Vornado Two Penn Prop., LLC v. XLPC, Corp., 18 Misc 3d 1119[A] [Civ Ct, New York County 2008], holding that the correct address on the petition and diagram of the premises were too vague to locate the subject newsstands; Elul Realty Corp. v. Java NY Ltd., at 339, holding while "the petition reflects the exact words listed in the lease, the description of the subject premises leaves it unclear as to the exact location of the respondent's business").
Moreover, the sufficiency of the description of the premises in the petition is not determined by the tenant's ability to locate the premises, but on a marshal's ability to identify the exact premise without additional information. (Sixth St. Community Ctr., Inc. at 1143[A]) In the instant matter, landlord submits evidence that the subject parking lot is located on 31st Street and 2nd Avenue at South Brooklyn Terminal. However, as there are multiple parking lots at Brooklyn South Terminal, the precise location of the subject parking lot is unclear, especially absent evidence that it is the only parking lot located on 31st Street. Moreover, the petition is accompanied by a map which fails to clarify the ambiguity as it is completely illegible. Based on the foregoing, landlord fails to raise a factual issue to refute the petition's deficiency.
Lastly, landlord seeks leave to amend the petition in the event this court finds the petition deficient. However, as landlord has not moved to amend the petition, the only issue before this court is whether the respondent's motion should be granted due to the petition's insufficient description of the premises. (See, Randall Assoc., LLC v. Davis , 20 Misc 3d 1116[A] [Civ Ct, New York County 2008] ). Moreover, given this court's finding that the defect in the petition does not allow a marshal to locate the premises with certainty without additional information, the deficiency does not appear "di minimis or trivial" to permit amendment. (See, 217 Malcolm X Blvd LLC v. Naughton Bros. Funeral Home , 43 Misc 3d 1214[A] [Civ. Kings 2014], holding that a petition may not be amended unless the problems with the description was of a de minimis or trivial nature.)
Based on the foregoing, the tenants' motion is granted and the petition is dismissed without prejudice. The landlord's request for leave to amend the petition is denied. This constitutes the decision and order of the Court.