ITW Mortgage Investments v. GMI N.Y.

(Civ. Ct. N.Y. Cty. 2/24/98)

We represented: Petitioner landlord

Carol H. Arber, J.

DECISION and ORDER In this non-payment proceeding, respondent GMI N.Y., Inc. moves pursuant to CPLR § 408 and § 3102 to conduct discovery.

Petitioner cross-moves to strike respondent's affirmative defenses and for summary judgment. Respondent undertenant supports petitioner's motion, and respondent GMI opposes the motion.

In its answer, respondent GMI asserts six affirmative defenses. The first defense is breach of lease in that the lease requires petitioner's consent for changes to the premises. However, petitioner points out that there was no such obligation in the sub-lease between Respondent GMI and its undertenant and this affirmative defense must therefore be stricken.

The second affirmative defense asserts that the lease was terminated by virtue of petitioner's actions and the sub-tenant's action in "substantially and materially altering the premises." The undertenant asserts that the only change made is a door and a small partition. Since respondent has not elaborated as to the alterations, the motion to strike this affirmative defense is granted.

The third affirmative defense asserts that as a result of the alleged alterations, respondent GMI has been constructively evicted. Since the premises are subject to the sub-lease, in order to claim constructive eviction, there must be abandonment. Since GMI continues to accept rent and has rights to the premises at the expiration of the sublease, there has been no abandonment. The defense of constructive eviction must therefore be stricken.

As a fourth affirmative defense, GMI asserts fraud based on an alleged duty to obtain consent for alterations, when the lease contains no such requirement. Moreover, fraud must be alleged with specificity and the defense as asserted here does not meet the requirements of CPLR § 3016. On that basis the motion to dismiss is granted.

The fifth affirmative defense is based on a lack of personal jurisdiction. Petitioner asserts and respondent acknowledges that in rem jurisdiction has been obtained. GMI asserts that in personam jurisdiction has not been obtained since respondent was served by mail out of state. Petitioner argues, and this court agrees, that respondents' appearance constitutes a waiver of its jurisdictional defenses since in rem jurisdiction has been obtained.

The sixth affirmative defense is the bald assertion that the verification is defective. Since the verification appears proper, the sixth affirmative defense is hereby stricken.

Respondent GMI moves for discovery, which the undertenant and petitioner both oppose. Respondent GMI asserts that it is entitled to depositions to determine who authorized the alterations to the premises. However, this is a non-payment proceeding and the only issue is whether or not GMI has been paying the rent due under the lease. The motion for discovery is therefore denied. It is clear from the assertions of all the parties that GMI has been receiving rent from its undertenant and not paying rent to the petitioner.

Since there is no valid defense asserted to non-payment, the cross-motion for summary judgment is granted.

The foregoing constitutes the decision and order of the Court.