101 -115 W. 116th St. Corp. v. Consulate Gen. of the Republic of Sen.

• Decision Date: 27 February 2023
• Docket Number: Index No. 154994/2020,MOTION SEQ. Nos. 001,002
• Citation: 2023 NY Slip Op 30607 (U)
• Parties: 101 -115 WEST 116TH STREET CORP, a/k/a 101-115 WEST 116 ST. CORP., Plaintiff, v. CONSULATE GENERAL OF THE REPUBLIC OF SENEGAL, Defendant.
• Court: New York Supreme Court

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2023 NY Slip Op 30607(U)

101 -115 WEST 116TH STREET CORP, a/k/a 101-115 WEST 116 ST. CORP., Plaintiff, v. CONSULATE GENERAL OF THE REPUBLIC OF SENEGAL, Defendant.

Index No. 154994/2020, MOTION SEQ. Nos. 001, 002

Supreme Court, New York County

February 27, 2023

Unpublished Opinion

PRESENT: HON. SHLOMO S. HAGLER Justice

DECISION + ORDER ON MOTION

Shlomo S. Hagler Judge

The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9,10,11,12, 13, 14, 15, 16, 17, 18, 19 20, 25, 26, 27, 28, 30, 31, 35, 36 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 21, 22, 23, 24, 29, 32, 33, 34 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER).

Motion sequence nos. 001 and 002 are consolidated for disposition.

This action arises out of an alleged breach of a commercial lease. In motion sequence no. 001, plaintiff 101-115 West 116th Street Corp a/k/a 101-115 West 116 St. Corp, moves, pursuant to CPLR 3212, for summary judgment against defendant Consulate General of the Republic of Senegal. In motion sequence no. 002, defendant moves separately for summary judgment dismissing the complaint.

Background Information and Procedural History

Pursuant to a written lease dated May 15, 2014 (the Lease), plaintiff as owner, leased a portion of the second floor (the Premises) of a building located at 101-115 West 116th Street, New York New York to defendant, as tenant, for a five-year term commencing January 1, 2015 through December 31, 2019 (NYSCEF Doc No. 10, Mitchell Mekles [Mekles] aff, exhibit A at 1). Article 43 in a rider to the Lease provided for payment of fixed annual rent (Fixed Annual Rent) at "$15,000.00 per month for the first year of the lease with an annual CPI or 3% increase, whichever is greater, compounded, each and every year thereafter for the duration of the lease" (id. at 7). Defendant agreed to pay as additional rent "[a]ll payments other than Fixed Rent"^[1](Additional Rent) (id. [Article 44]), such as water and sewer charges (id. at 6 [Article 28]); a pro rata share of the real estate taxes for the building (id. at 7 [Article 45]); and common area maintenance charges (id. at 9 [Article 55]). Article 31 required defendant to deposit $45,000 as security and if it defaulted on its Lease obligations, allowed plaintiff to "use, apply or retain the whole or any part of the security ... to the extent required for the payment of any rent and additional rent or any other sum as to which Tenant is in default or for any sum which Owner may expend or may be required to expend by reason of Tenant's default" (id. at 5). Article 52, titled "HOLDING OVER," provides that in the event defendant held over in the Premises:

"such holding over shall not be deemed to extend the term or renew the lease, but such holding over thereafter shall continue upon the covenants and conditions herein set forth except that the charge for use and occupancy of such holding over for each calendar month or part thereof (even if such part shall be a small fraction of a calendar month) shall be the sum of:

(a) 1/12 of the highest Fixed Rent provided for in this lease, times 2.5, plus

(b) 1/12 of the net increase, if any, in annual fixed rental due solely to increases in the cost of the value of electric service furnished to the premises in effect on the last day of the term of the lease (if applicable), plus

(c) 1/12 of all other items of annual additional rental, which annual additional rental would have been payable pursuant to this lease had this lease not expired, plus

(d) those other items of additional rent (not annual additional rent) which would have been payable monthly pursuant to this lease, had this lease not expired, which total sum Tenant agrees to pay Owner promptly upon demand, in full, without set-off deduction ... The aforesaid provisions of this Article shall survive the expiration or sooner termination of this lease"

(id.). If defendant failed to timely pay an installment of Fixed Annual Rent, Additional Rent or other sum, Article 63 allowed plaintiff to assess "a late charge of five ($.05) cents for each dollar overdue ... at the time of payment of the delinquent sum then interest at the rate of 18% per annum ... from and after the date" (id. at 11). Article 3 required defendant to restore the Premises at the end of the Lease term to the condition existing prior to its occupancy (id. at 1 [Article 3]). Article 19 allows plaintiff to recover its attorneys' fees as follows:

"If Tenant shall default in the observance or performance of any term or covenant on Tenant's part to be observed or performed under or by virtue of any of the terms or provisions in any article of this lease, then, unless otherwise provided elsewhere in this lease, Owner may immediately or at any time thereafter and without notice perform the obligation of Tenant thereunder, and if Owner, in connection therewith or in connection with any default by Tenant in the covenant to pay rent hereunder, makes any expenditures or incurs any obligations for the payment of money, including but not limited to attorney's fees, in instituting, prosecuting or defending any actions or proceeding, such sums so paid or obligations incurred with interest and costs shall be deemed to be additional rent hereunder and shall be paid by Tenant to Owner within five (5) days of rendition of any bill or statement to Tenant therefore, and if Tenant's lease term shall have expired at the time of making of such expenditures or incurring of such obligations, such sums shall be recoverable by Owner as damages"

(id. at 4). The guaranty language in Article 76 reads, in pertinent part:

"Elhaeji Sidy Niang and The Country of Senegal (The Guarantors) hereby unconditionally guarantees [szc] the full and timely payment of and the performance and observance of all obligations of Tenant under the Lease which shall exist or arise during the Tenant's use or occupancy of the premises requiring any notice to them of nonpayment or nonperformance, or proof, or notice of demand to hold them responsible under this guaranty, all of which they hereby expressly waive"

(id. at 12-13). The notice clause in Article 27 states, in part:

"Except as otherwise in this lease provided, a bill, statement, notice or communication which owner may desire or be required to give to Tenant, shall be deemed sufficiently given or rendered if, in writing, delivered to Tenant personally or sent by registered or certified mail addressed to Tenant at the building of which the demised premises form a part or at the last known residence address or business address of Tenant or left at any of the aforesaid premises addressed to Tenant, and the time of the rendition of such bill or statement and of the giving of such notice or communication shall be deemed to be the time when the same is delivered to Tenant, mailed, or left at the premises as herein provided"

(id. at 5). Last, Article 56, titled "SUBMISSION TO JURISDICTION, ETC.," partially states:

"This lease shall be deemed to have been made in New York County, New York, and shall be construed with the laws of the State of New York. All actions or proceedings relating, directly or indirectly, to this lease shall be litigated only in courts located within the City of New York. Tenant, any guarantor of the performance of its obligations hereunder ('Guarantor') and their successors and assigns hereby subject themselves to the jurisdiction of any state or federal court located within such county, waive the personal service of any process upon them in any action or proceeding herein and consent that such process be served by certified or registered mail, return receipt requested, directed to the Tenant and any successor at the address set forth in the instrument of guaranty and to any assignee at the address set forth in the instrument of assignment. Such service shall be deemed made two days after such process is so mailed"

(id. at 10). Vice Consul Amadou Gassama executed the Lease for defendant (id. at 7).

On June 4 and September 16, 2019, plaintiff's president, Mekles, wrote to Elhadji Amadou Ndao (Ndao), Consul General of the Republic of Senegal, to advise that there was no renewal option in the Lease and that defendant should plan on vacating the Premises in December (NYSCEF Doc No. 12, Mekles aff, exhibit D at 1-2). On November 12, 2019, Mekles wrote to Amadou Ba, Senegal's Minister of Foreign Affairs, to advise that defendant was obligated to vacate the Premises (id. at 3). Mekles offered Ba a 10-year lease in another building for less rent, but defendant did not respond (NYSCEF Doc No. 8, Mekles aff, ¶ 20).

Plaintiff alleges defendant remained in possession of the Premises after the Lease expired through March 2020 without plaintiffs written consent (NYSCEF Doc No. 17, Mekles aff, Ex H ¶¶ 17-18). By letter on January 23, 2020, Mekles informed Ndao that $77,979.33 in rent and additional rent from November 2019 to January 2020 was due and $22,105.08 was due as February rent (NYSCEF Doc No. 15, Mekles aff, exhibit F at 1). Mekles wrote that if those sums were not paid, plaintiff would begin charging defendant holdover rent from January (id.). Mekles offered to waive the rent due for February if defendant agreed to lease space at 238 West 116th Street (id.). Defendant failed to respond (NYSCEF Doc No. 8, ¶ 23). In another January 23, 2020 letter, Mekles reminded Ndao of defendant's obligation to restore the Premises under Article 3 of the Lease (NYSCEF Doc No. 15 at 2). On February 3, 2020, Mekles informed defendant that $157,987.47 was due for charges dating back to October 2019 plus holdover rent for January and February 2020 (NYSCEF Doc No. 16, Mekles aff,...