6014 Eleventh Ave. Realty, LLC v. 6014 Ah, LLC

• Decision Date: 05 February 2014
• Citation: 6014 Eleventh Ave. Realty, LLC v. 6014 Ah, LLC, 2014 NY Slip Op 649, 114 A.D.3d 661, 979 N.Y.S.2d 686 (N.Y. App. Div. 2014)
• Parties: 6014 ELEVENTH AVENUE REALTY, LLC, appellant, v. 6014 AH, LLC, et al., respondents.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 661

979 N.Y.S.2d 686

2014 N.Y. Slip Op. 00649

6014 ELEVENTH AVENUE REALTY, LLC, appellant,

v.6014 AH, LLC, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 5, 2014.

Tsyngauz & Associates, P.C., New York, N.Y. (Michael Treybich of counsel), for appellant.

Hagan, Coury & Associates, Brooklyn, N.Y. (Paul Golden of counsel), for respondents 6014 AH, LLC, and Alexander Hirsh, also known as Alexander Hirsch.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

In an action, inter alia, for ejectment from real property, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated March 8, 2012, as denied that branch of its motion which was for summary judgment on its cause of action for ejectment of the defendants.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In January 2006, the plaintiff, as landlord, entered into a lease pursuant to which it leased the second and third floors of the subject property to the defendant 6014 AH, LLC (hereinafter 6014). The lease gave 6014, among other things, the right to sublet the subject property and an option to lease the first floor of the subject property from the plaintiff. In order to exercise this option, the lease required, inter alia, that 6014 provide the plaintiff with written notice that it was exercising its right. The lease further stated that after the option was exercised, the parties would execute a lease modification. After signing the lease, 6014 made certain renovationsto the subject property and sublet the second and third floors.

After a dispute over the payment of rent, the plaintiff commenced this action against, among others, 6014 and its principal, Alexander Hirsh, also known as Alexander Hirsch (hereinafter together the AH defendants), alleging, inter alia, that 6014 had exercised the option to lease the first floor of the subject property and that it had defaulted upon its rent obligations. The plaintiff subsequently amended the complaint, adding the subtenants of the subject property as defendants and adding a cause of action against all defendants for ejectment from the subject property. The plaintiff then moved, inter alia, for summary judgment on its cause of action for ejectment.

The plaintiff did not demonstrate its prima facie entitlement to judgment as a matter of law on its cause of action for ejectment since it failed to establish that 6014 had defaulted upon its obligation to pay rent under the lease. In its initial moving papers, the plaintiff attempted to demonstrate that 6014 had defaulted upon its rent obligations by submitting the affidavit of ...