Opinion
0138-20
05-25-2021
Y.B. ASSOCIATES LLC, Petitioner-landlord, v. OBEOF HOLDING LLC, Respondent-tenant.
Kenneth B. Saltzman. Esq., Attorneys for Petitioner, 22 West First Street, Suite #622, Mount Vernon, New York 10550 Sophia Trott, Esq., Attorney for Respondent, 153 Stevens Avenue, Mount Vernon, New York 10550
Kenneth B. Saltzman. Esq., Attorneys for Petitioner, 22 West First Street, Suite #622, Mount Vernon, New York 10550
Sophia Trott, Esq., Attorney for Respondent, 153 Stevens Avenue, Mount Vernon, New York 10550
Lyndon D. Williams, J.
The petitioner-landlord commenced this holdover proceeding seeking to recover possession of the commercial premises located at 22 East First Street, 2nd Floor, alleging expiration of a written lease agreement on December 31, 2019. Petitioner alleges in a Notice of Termination dated November 22, 2019 that respondent-tenant failed to maintain liability insurance, failed to complete construction in a timely manner, failed to pay real estate taxes, failed to pay utility bills, and interfered with the petitioner's management of the premises.
The respondent moves to dismiss the proceeding for failure to state a cause of action.
The petitioner opposes the motion.
In support of the motion to dismiss, Dr. Christopher Adubar, a managing member of OBEOF Holdings LLC, affirms that he signed a ten-year lease agreement for the premises in October 2015. Per the lease agreement, certain repairs were to be made by the petitioner and respondent prior to respondent taking occupancy. Mr. Adubar affirms that rent was not payable until he took occupancy of the premises. He affirms that respondent has not been able to take possession of the premises because petitioner has failed to make the necessary plumbing and electrical repairs. He states that respondent spent over $80,000.00 towards repairing the premises. Mr. Adubar states that the respondent is willing to vacate the premises on condition that it is reimbursed for the money expended on the repairs. Respondent argues that the petitioner has unclean hands as they failed to do the necessary repairs required for the respondent to occupy the premises.
Respondent's counsel, Sophia Trott, further argues that the Notice of Termination is defective. Counsel states that the parties have a valid lease agreement and that the commercial tenancy cannot be terminated by a thirty-day notice. She further states that the lease fails to provide any provisions for termination.
In opposition to the motion, Jack Friedman, petitioner's property manager affirms that the parties entered into an agreement for the premises in October 2015. Under the agreement, respondent was to perform certain work to the premises prior to assuming possession. Petitioner was required to make certain repairs as well. Mr. Friedman affirms that petitioner has completed all work required of them. He maintains that respondent started some of their required work but then ceased working and abandoned the premises. Mr. Friedman argues that respondent has failed to maintain the required insurance coverage, and has paid no utility or tax bills in violation of the parties's agreement. Furthermore, he argues, respondent has paid no rent and has interfered with the landlord's ability to manage the building.
Petitioner's counsel, Kenneth Saltzman, argues that respondent has failed to submit any documentary evidence to support its motion. He argues that the lease agreement submitted by respondent is not fully executed and violates the statute of frauds, in that it is only signed by the respondent. Accordingly counsel argues that respondent's motion must be denied and the matter proceed to trial.
The respondent moves to dismiss the petition for failure to state a cause of action. The sole criterion for deciding a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), "is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" ( Guggenheimer v Ginzburg , 43 NY2d 268, 275 [1977] ; African Diaspora Mar. Corp. v. Golden Gate Yacht Club , 109 AD3d 204, 211 [1st Dept. 2013]. On such a motion, the pleading is to be afforded a liberal construction, the facts alleged in the complaint must be deemed true, and the petitioner must be accorded the benefit of every possible favorable inference ( 511 W. 232nd Owners Corp. v Jennifer Realty Co. (98 NY2d 144, 151-152, [2002] ; see also Romanello v Intesa Sanpaolo, S.P.A. , 22 NY3d 881, 887, [2013] ; Simkin v Blank , 19 NY3d 46, 52, [2012] ; CPLR 3026 ). Thus, the court should determine only whether the facts as alleged fit within any cognizable legal theory without expressing any opinion as to the moving party's ability to ultimately establish the truth of those facts (see Leon v Martinez , 84 NY2d 83, 87-88 [1994] ; 219 Broadway Corp. v Alexander's, Inc, 46 NY2d 506 [1979] ).
Here, the petitioner has met this liberal standard of pleading by contending that the parties had a landlord/tenant relationship, that the respondent breached the terms of their lease agreement and that the lease agreement terminated based upon respondent's breach of contract.
Respondent argues that the Notice of Termination is defective because the parties had a valid lease agreement and respondent has not violated any provisions of the lease. Respondent submitted a lease agreement with its motion papers, however, the lease agreement is only executed by the tenant. The law provides that a lease that provides for the signature of both parties is "executed" only when it is signed by both parties and delivered. (See 219 Broadway Corp. v Alexander's, Inc. , 46 NY2d 506.) "[If] the parties to an agreement do not intend it to be binding upon them until it is reduced to writing and signed by both of them, they are not bound and may not be held liable until it has been written out and signed." ( Scheck v Francis , 26 NY2d 466, 469-470 ; East 56th Plaza, Inc. v. New York City Conciliation & Appeals Bd. , 80 AD2d 389, 392-393 ). Accordingly, the respondent's claim that the Notice of Termination is defective must be denied at this time. On its face, the termination notice appears to be sufficient, in that it apprised the tenant of the grounds for proposed termination of the tenancy by setting forth the specific provisions of the lease that the respondent allegedly violated, the specific date to surrender the premises, and the petitioner's intent to commence summary proceedings ( See Cosmoplitan Broadcasting Corp. v. Miranda , 1743 Misc 2d 1 [Civ. Ct. NY Co. 1989]).
The respondent's motion to dismiss for failure to state a cause of action is denied.
This constitutes the Decision of the Court.