Opinion
SP 6481/09.
Decided on January 13, 2010.
Feldherr Feldherr, Attorneys for Petitioner, Westbury, New York.
Nazrisho Associates, Attorney for Respondent, New York.
Petitioner United Properties Corp. commenced this non-payment proceeding against Respondent Alice M. Misk, seeking a final judgment of eviction and awarding the petitioner possession of the premises described as 998/1000 Merrick Road, Baldwin, New York. Pursuant to the lease dated October 28, 2008, Respondent rented the said premises to be used as a spa. The lease runs for a period of ten (10) years with a five (5) year option.
Paragraph 5 of the petition alleges that the following is due from the Respondent.
August, 2009$1,530.11
September, 2009$2,900.00
October, 2009$2,900.00
Waste Removal$170.26
CAM$212.23
Late Charge$245.77
Insurance$57.52
This represents the total rent in arrears in the amount of $8,015.89.
Respondent has filed an answer and counterclaims, dated November 19, 2009, which contains the following:
(a)First affirmative defense — since Heeling Island Spa is a necessary party, and not named, the petition must be dismissed.
(b)Second affirmative defense — Respondent is relieved of paying rent because of Petitioner's failure to make repairs to the demised premises such as leaking from the ceiling, mold, flooding of ground floor, etc.
(c)First counterclaim — Petitioner is liable for conduct which constitutes harassment and Respondent has been damaged in the sum exceeding $10,000.00.
(d)Second counterclaim — Petitioner violated the said lease by permitting another store in the shopping mail to operate in direct competition with Respondent's beauty related business. Such acts have damaged the Respondent in the sum exceeding $250,000.00.
Petitioner now moves for an order amending the petition to allow the Petitioner to collect rent and added rent for the month of November, 2009 in the sum of $3,645.85 and for the month of December, 2009, in the sum of $3,427.03 for a total of $15,098.77; granting summary judgment in it's favor, or in the in the alternative, striking Respondent's First Counterclaim and Second Counterclaim. The Court notes that Petitioner has withdrawn the claim of $2,213.38 for waste removal charges as set forth in the reply affirmation of Craig Feldherr, dated December 27, 2009, and now seeks judgment in the amount of $12,885.39.
Respondent has filed a notice of motion requesting the Court to dismiss the notice of petition and petition pursuant to CPLR 3211(a)(10) due to Petitioner's failure to add Heeling Island Spa, Inc. as a necessary party.
On the record on November 20, 2009, the parties agreed to add Heeling Island Spa, Inc. as a party-respondent. The parties further agreed to have the Court determine if the purported assignment of the lease from Respondent Alice M. Misk to Heeling Island Spa Inc. was effective to transfer liability for the rent and additional rent.
Lease Paragraph 81 states:
Assignment to a Corporation: The Tenant shall have the right to assign this lease to a corporation of which the Tenant is a 100% percent shareholder. A fully executed Assignment and Assumption form, along with a copy of the certificate of incorporation issued by the State of New York, will be sent to the landlord by Certified Mail, Return Receipt Requested. Tenant shall be personally liable for the entirety of this lease until the lease is assigned to a corporation of which the Tenant is a 100% shareholder. After such assignment the Tenant shall only be personally liable as outlined in clause No. 83.
The evidence supports Petitioner's contention that the attempted assignment of the lease from Alice M. Misk to Heeling Island Spa, Inc. failed to comply with the requirements of Paragraph 81 of the lease.
The first attempted assignment (Exhibit D attached to Petitioner's motion for summary judgment) was rejected by Petitioner because the assignee failed to sign the assignment and assume the obligations of the lease. Secondly, the assignment failed to identify any of the terms of the underlying assigned lease.
Respondent attempted to assign the said lease to Heeling Island Spa for a second time. This effort was rejected by Petitioner because the assignment referred to the assigned premises as 988 Merrick Road, when in fact the correct address reflected in the lease is 998 Merrick Road. Respondent also failed to provide Petitioner with the certificate of incorporation of Heeling Island Spa as required by Paragraph 81 of the lease. Additionally, Petitioner refused to countersign the proposed assignment because Respondent Alice M. Misk had defaulted in making the payments required under the lease when the second attempt at assignment was sent on August 12, 2009 (see notice of petition and petition outlining Respondent's default in payment of August rent in the sum of $1,530.11).
In 752 Pacific LLC v. Pacific Carlton Development Corporation., 2007 NY Slip Op 50338U 9, 14 Misc 3d 1237(A) (Sup Ct, Kings County, 2007), the Court refused to recognize an assignment where the tenant failed to follow the requirements of the lease for an assignment:
Where the terms of a written contract are clear and unambiguous, the courts will enforce it according to its terms ( see W.W.W. Assoc. v. Giancontieri, 77 NY2d 157, 160; Automotive Mgt. Group, Ltd v. SRB Mgt. Co., Inc., 239 AD2d 450, 451). The leases in question here clearly and unambiguously required tenants to "first" obtain the written consent of the landlords before any assignment of the leases. Notwithstanding that provision, the tenants chose to execute the assignments to AY Carlton, even though they had not received the written consent of the landlords. Indeed, the tenants chose to execute the assignments less than two weeks after sending their letter requests, before they received any response from the landlords, without trying to contact the landlords. The tenants' assignment was clearly not permitted by the leases. Pursuant to Section 20.01(c), any assignment not made in a manner "permitted" by the contract is defined as an event of default. Finally, pursuant to Section 20.02, the landlords had the option to terminate the leases upon notice for any such defined event of default. The landlords have served the requisite notices in this case. Thus, defendants have demonstrated that they are entitled to a judgment declaring that the assignments were improper and that the leases have been terminated.
Plaintiffs' argument otherwise are unavailing. For example, plaintiffs allege that the landlords' withholding consent was unreasonable. However, according to the clear terms of the leases, plaintiffs were required to obtain consent prior to assigning the leases, regardless of the reasonableness of withholding consent. Additionally, it is not clear that the landlords' withholding was unreasonable as a matter of law. First, the initial requests themselves provided virtually no information about the assignments, and so the landlords were justified in seeking additional information (see e.g. 8902 Corp., 23 AD3d at 316 [consent to assignment not unreasonably withheld where tenant failed to provide required financial information]; 200 Eighth Ave. Rest. Corp., 293 AD2d at 353 [withholding consent reasonable where, among other things, tenant failed to timely provide financial information regarding proposed assignee]).
In Landlord and Tenant Practice in New York, by Daniel Finkelstein and Lucas A. Ferrara [West's NY Prac Series, vol F, 2007]) the following is stated in Section 4:126:
Authorized occupants — Sublessees/assignees — Commercial leases — May be subject to express conditions
In addition to subjecting assignments or sublets to the lessor's consent, other conditions are often incorporated into the lease. Since landlords have a strong interest in controlling the occupants of their properties, transfer restrictions will usually be enforced. Thus, absent the imposition of some standard of reasonableness, consent may be withheld for any reason, even if arbitrary.
Based upon the above, Petitioner was justified in rejecting the purported assignment from Alice M. Misk to Heeling Island Spa, Inc. Thus, Heeling Island Spa is not a necessary party to these proceedings. Respondent Alice M. Misk remains fully liable for the rent and the limited liability Good Guy Clause of Paragraph 83 does not come into effect.
Respondent contends that she is justified in not paying rent because of Petitioner's alleged failure to repair the premises. In New York, the alleged breach by Petitioner to make repairs does not relieve Respondent of its duty to pay rent. See Thomson-Houston Electric Co. v. Durant Land Imp. Co., 144 NY 34 (1894); V J Inc. v. 2320 Route 112, LLC, 13 Misc 3d 30, 822 NYS2d (9th 10th Jud Dists, 2006).
In Rasch's Landlord Tenant — Summary Proceedings, Fourth Edition, Hon. Robert F. Dolan, Section 18:31, the foregoing principal is clearly set forth as established law of New York:
The tenant's covenant to pay rent, and the landlord's covenant to repair, in the absence of clear intention to the contrary, are independent covenants. Therefore, a breach of the landlord's covenant to repair is no legal excuse for the tenant not to pay his rent. Similarly, it is no defense to an action brought against a landlord for breach of his covenant to repair that the tenant failed to pay his rent.
The affidavit of Alice M. Misk, sworn to December 19, 2009, submitted in opposition to Petitioner's motion and in further support of the Respondent's motion to dismiss, attempts to create the issue of constructive eviction to preclude summary judgment from being granted to Petitioner. However, a party opposing summary judgment must lay bear her proof. See CPLR 3212(b).
Respondent has totally failed to establish any evidence of constructive eviction. No dates or times or circumstances are set forth in detail to demonstrate that constructive eviction occurred. The evidence submitted by Respondent fails to demonstrate any violation of the doctrine of constructive eviction. See Rasch's Landlord and Tenant including Summary Proceedings;, supra, Sections 28:22, 28:23, 28:25, and 28:26; West Broadway Glass Co. v. I.T.M. Bar, Inc., 245 AD2d 232, 666 NYS2d 629 (1st Dept 1997); and Gallery at Fulton Street, LLC v. Wendnew LLC , 30 AD3d 221 , 817 NYS2d 237 (1st Dept 2006).
Respondent has failed to offer any proof that written notice was given to the Petitioner of problems which allegedly exist on the premises as required by Paragraph Twelve of the lease. Said paragraph states:
Any notice or demand which under the terms of this lease or under any statute must or may be given or made by the parties hereto shall be in writing and shall be given or made by mailing the same by certified mail or registered mail addressed to the respective parties at the addresses set forth in this lease.
The first counterclaim asserting a cause of action for harassment against the Petitioner does not lie in New York, and thus is dismissed with prejudice. See Ralin v. The City of New York , 44 AD3d 838 , 844 NYS2d 83 (2nd Dept, 2007); Santoro v. Town of Smithtown , 40 AD3d 736 , 835 NYS2d 658 (2nd Dept, 2007).
Even if this was not the law in New York, the cause of action for harassment would be barred by the waiver of counterclaims set forth in Paragraph 57 of the lease which states:
Countersuit: On any matters whatsoever arising out of or in any way connected with this lease, Tenant's use of or occupancy of said premises, the parties hereto mutually agree that in the event Owner commences any summary proceeding for possession of the premises, Tenant will not interpose any counterclaim.
See generally, Rasch's Landlord and Tenant — Summary Proceedings, supra, Section 43:40:
Waiver of Right to Interpose Counterclaim
A provision in a lease prohibiting the interposition of counterclaims in summary proceedings for nonpayment of rent is valid, and a counterclaim interposed in violation of such a provision may be dismissed without prejudice to the tenant's right to bring an independent action based thereon.
The Court has reviewed the other contentions raised by the Respondent and finds that Respondent has failed to present any evidence to substantiate any other claim.
CONCLUSION
Petitioner is awarded summary judgment in the amount of $12,885.39 and a judgment of possession and a warrant with no stay. The purported assignment from Respondent Alice M. Misk to Heeling Island Spa, Inc., was ineffective. The Respondent Alice M. Misk is liable for all amounts owed.
The affirmative defenses and counterclaims asserted by Respondent are hereby dismissed with prejudice.
So Ordered: