475 Park Ave. So. Co. v. Betelgeuse Productions, Inc.

(Civ. Ct. N.Y. Cty. 3/2/01)

We represented: Petitioner

Alison Y. Tuitt, J.C.C.

DECISION and ORDER The Decision/Order in this motion is as follows:

Petitioner commenced this summary holdover proceeding for respondent's failure to restore its security, by service of a Notice of Petition and Petition on the 25^th day of September 2000. Petitioner moves, herein, for an Order, inter alia, for summary judgment and to dismiss respondent's affirmative defenses and counterclaim on the grounds that documentary evidence bars said counterclaim and said counterclaim fails to state a cause of action.

It is well settled that a movant for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact and the opposing party must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim. Tessier v. New York City Health and Hospitals Corporation, 177 A.D. 2d 626, 576 N.Y.S. 2d 331 (2^nd Dept., November 1991).

In this case, petitioner presented uncontroverted evidence that it entered into a lease with respondent for the tenth floor of 475 Park Ave. South Co. for a base rental amount of $22,009.19 per month plus additional rental charges. Also, petitioner has established that respondent defaulted in its rent obligation for August and September 2000, and as a result petitioner used respondent's security deposit to satisfy this debt for $50,414.79.

On September 6, 2000, pursuant to the terms of the lease, petitioner sent respondent a Notice to Cure informing respondent that it had to replenish its security deposit or it would terminate their lease. Based on the foregoing, the Court finds that petitioner has sustained its prima facie burden.

Once a prima facie showing has been made, the burden shifts to the opposing party who must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form. Here, in opposition, respondent failed to submit any evidence, in admissible form, that it is entitled to an offset in excess of the amount claimed due petitioner's breach of the lease by its breach of security and failure to provide adequate electricity. There was no documentation submitted to substantiate any financial loss incurred by respondent as a result of the conduct of plaintiff. Moreover, there was no indication that respondent sought any legal recourse to compensate for petitioner's alleged wrongdoing.

Thus, respondent's allegations that it is entitled to an offset and that such offset negated its breach of the lease is mere speculation and conjecture. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue of fact. Taylor-Wagner Corporation v. Minskoff, 167 A.D. 2d 382, 561 N.Y.S. 2d 797 (2^nd Dept., November 1990); Whelen v. G.T.E. Sylvania Incorporated, 182 A.D. 2d 446, 582 N.Y.S. 2d 170 (1^st Dept., April 1992); Barclays Bank of New York v. Sokol, 128 A.D. 2d 492, 512 N.Y.S. 2d 419 (2^nd Dept., March 1987). Thus, after accepting all of respondent's credible evidence and viewing it in the light most favorable to respondent, the Court finds that respondent has failed to sustain its burden, and grants petitioner summary judgment.

Further, with respect to the issue of attorney's fees, petitioner's right to attorney's fees has been specifically retained by petitioner should it have to initiate a summary proceeding. Thus, absent ambiguity, fraud, overreaching, unconscionable conduct, or other public policy concerns, the court presumes that respondent understood and assented to the terms expressed in that written agreement, W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157,162; Fiorentino Assoc. v. Green, 85 A.D.2d 419,420, and the Court must enforce such a written contract. This is particularly applicable in a commercial real property transaction, to impart certainty and stability to the contract and the law. W.W.W. Associates, Id. Thus, the Court grants petitioner's request for attorney's fees solely to the extent of scheduling a hearing, to determine the amount, if any, of attorney's fees.

Accordingly, it is so,

ORDERED, that petitioner is granted a judgment of possession for the premises herein, warrant of eviction issued forthwith, and it is hereby further,

ORDERED, that respondent pay use and occupancy from October 1, 2000 through November 30, 2000 in the total sum of $69,576.18 and finding respondent liable to petitioner for ongoing use and occupancy from December 1, 2000 through the date the possession of said premises is delivered to petitioner in the sum of $34,760.00 per month, and it is further hereby,

ORDERED, that a money judgment be entered in favor of petitioner and against respondent for all use and occupancy due through the date of judgment together with interest and the cost of this proceeding; and it is further hereby,

ORDERED, that this matter is set down for a hearing on the issue of attorney's fees on March 21, 2001, at 10:00, Room 765.

Petitioner shall serve and file a copy of this decision, with Notice of Entry, on defendant and the Clerk of the Court.

The foregoing constitutes the decision and order of the Court.