Brenner v. Gen. Plumbing Corp.

Citation13 N.Y.S.3d 849 (Table)
Decision Date23 January 2015
Docket NumberNo. 84237/2013.,84237/2013.
PartiesFred BRENNER and Jodi B. Brenner, as Trustee of the FB Irrevocable Trust Agreement Number 1 dated January 1, 2004, Petitioner, v. GENERAL PLUMBING CORPORATION, Respondent.
CourtNew York Civil Court

DeLotto & Fajardo, LLP by Lauren DeLotto, Esq., New York, Attorney for Petitioner.

Podvey, Meanor, Catenacci, Hildner, Cocoziello & Chattman, P.C., New York, Attorney for Respondent.



The instant case is a commercial summary proceeding for non-payment of rent. In or about July 12, 2013, the Petitioner had served on the Respondent a 10–day rent demand. According to the Affidavit of Service, the 10–day rent demand was served on Andrew Moran, allegedly employed by General Plumbing Corporation, at the premises sought to be recovered. The 10–day rent demand stated that the Respondent was indebted to the Petitioner in the sum of $274,732 .47 which represents all rent due through July 11, 2013 and demanded that the aforementioned sum be paid on or before July 26, 2013. Annexed to the rent demand was a chart stating the above name and address of the Respondent and is entitled, “Lease–Fixed Rent Escalation for CPI Increases Calculation worksheet to determine Monthly delinquency before interest charges from April 11, 2007 through July 11, 2013.”

The demand states that the delinquent fixed rent due and owing is the sum of $239,959.81, 5% late charge in the sum of $11,997.99, interest at prime rate in the sum of $22,775.44 for a grand total of $274,732.47.

After the Respondent did not tender the aforementioned sum, the Petitioner proceeded with the service of the Notice of Petition and Petition seeking to recover possession for nonpayment of rent.

The Respondent appears by counsel, the Law Offices of Podvey, Meanor, Catenacci, Hildner, Cocoziello & Chattman, P.C., that interposed an answer which alleged various defenses and counterclaims. The answer specifically asserts that General Plumbing Corporation is the only party in possession, specifically that the trade names of that corporation are not independent entities but are trade names of the major corporation and thus, the pleadings should be amended to delete the unnecessary named parties. The Respondent disputes the allegations contained in the petition in regards to the amount due and owing.

In addition, the Respondent asserts that on July 25, 2013, the Respondent filed a declaratory judgment action in the Supreme Court of the State of New York in the County of Kings in the Commercial Division under Index Number 504231/2013 to determine, inter alia, the amount of rent owed on the subject premises. Until that determination is made, the Respondent allegedly deposited the sum of $92,457.22 into its attorney trust account and claims that this amount is owed in rent arrears.

Further, the answer contains other affirmative defenses, to wit: a declaratory judgment action is pending in Supreme Court which seeks a determination of the amount of rent owed and the subject proceeding should be removed and consolidated with that action; this proceeding should be dismissed based on the pending declaratory judgment action; the petition fails to state a cause of action upon which relief can be granted; this court lacks subject matter jurisdiction on the grounds that the Petitioner failed to serve a rent demand as prescribed by law; the rent demand is based on an improper and unclear rental amount; the court lacks personal jurisdiction since the notice of petition and petition were not served in accordance with the law; the petition fails to state a cause of action for rent and additional rent because the petition is unclear and the rental amount is improper; the Petitioner is not the person authorized pursuant to RPAPL § 721 to commence this proceeding; the petition should be dismissed on the grounds that it was not issued by a proper party; the Petitioner failed to serve the proper predicate notice in accordance with the law; the landlord's claims are barred by the doctrine of laches, waiver and estoppel; and the petition should be dismissed for the failure to state a cause of action because it fails to allege sufficient facts concerning the alleged rental amount between the Petitioner and the Respondent.

The answer was filed with the court on August 13, 2013, and it appears that a court date was granted by the Clerk of the Court for August 15, 2013.

Subsequently, the Respondent submitted an Order to Show Cause on August 8, 2013 returnable on August 19, 2013 seeking a stay of the commercial non-payment proceeding, and for removal and consolidation of the commercial non-payment proceeding with the aforementioned declaratory judgment action.

It appears from the record that there was an ex-parte order to accelerate the Order to Show Cause from August 19, 2013 to August 15, 2013.

On August 9, 2013, upon the application of the Petitioner's attorney, the Respondent's motion was accelerated to August 15, 2013. The Petitioner was required to serve a copy of the order on the Respondent by August 9, 2013.

On August 15, 2013, after substantial conference with the Court, the parties entered into a two-attorney stipulation which adjourned the case for trial to September 15, 2013. The Respondent explicitly withdrew with prejudice the following defenses in the answer: third, fourth, fifth, sixth, ninth, tenth, eleventh and twelfth. Additionally, the Respondent represented that General Plumbing Inc. was the sole occupant in possession and the proceeding was discontinued against all undertenants and the pleadings were amended accordingly.

On August 19, 2013, the Petitioners' attorney served a Notice of Motion returnable on September 4, 2013 to admit Robert L. Povui, Esq ., an attorney admitted before the courts of the State of New Jersey, pro hac vice as counsel on behalf of the Respondent-tenant, General Plumbing Inc. for this proceeding.

As to the Respondent's Order to Show Cause that seeks to stay the summary proceeding pending a final determination of the Supreme Court action, or for removal and for consolidation of the summary proceeding with the declaratory judgment action. The Respondent claims that the essential facts between the parties are not in dispute, however, the Respondent claims that the Petitioner's interpretation of the provision in the lease is incorrect. The Respondent states, in essence, that the above sum of $274,732.47 has been incorrectly calculated based upon the following rationale: the landlord wrongfully attempts to charge the Respondent late fees and interest for unpaid rent going back to August 2007 notwithstanding the fact that the rent demand for such rent was made in April 2013; the landlord failed to take into account the negative changes in the CPI Index as required by the lease; the Petitioner compounds the rent by calculating the fixed rent retroactively to a period of time prior to the date that the Petitioner would be entitled to collect any increase from the Respondent as of August 2007; and the Respondent's method of calculation more fully complies with the terms of the lease. The Respondent's calculation, pursuant to the Respondent's interpretation of the disputed lease, yields uncollected rent for the subject premises in the amount of $92,457.22 and said sum has been deposited in its attorney's trust account.

The Respondent further argues that the non-payment proceeding should be stayed pending a determination of the declaratory judgment action. According to the Respondent, the Respondent commenced the declaratory judgment action in or about July 25, 2013, and subsequently, on July 31, 2013, the landlord commenced the instant non-payment proceeding. The Respondent claims that both actions are pending for the same relief, and since the declaratory judgment was first in time, the summary proceedings should be stayed pending a determination of the declaratory judgment action. In the alternative, the Respondent claims that the non-payment proceeding should be stayed, removed and consolidated with the declaratory judgment action.

In the interim, the request for a stay in the Supreme Court of this summary proceeding was denied by the Hon. Carolyn E. Demarest, J.S.C., on August 15, 2013.

The Petitioner's motion to accelerate was granted as per order and the Order to Show Cause by Respondent was withdrawn, and the parties agreed that the undersigned would proceed with a trial on the merits. Additionally, the Respondent was directed to provide its calculations of the fixed rent, late fees and interest on or before August 6, 2013 by email. The case was adjourned for trial to September 25, 2013.

On September 25, 2013, this case was referred to the undersigned for trial. The parties admitted the following documents into evidence on consent and without reservation except as stated below:

Petitioner's Exhibit “1”—a certified copy of a deed of ownership dated February 6, 1984 from the Walben Company to Fred Brenner for the property known as 436 Keap Street, Brooklyn, New York;
Petitioner's Exhibit “2”—a certified copy of a deed of ownership dated February 12, 2004 in which Fred Brenner transferred 80% of his rights, title and interest to Jodi B. Brenner, as trustee of the FB Irrevocable Grantor Trust Agreement dated January 1, 2004; his reversionary interest constituting 20% of the trust corpus;
Petitioner's Exhibit “3”—a lease agreement dated January 1, 2004 that commenced on January 1, 2004 between Jodi B. Brenner and Fred Brenner as landlord and General Plumbing Corporation, as tenant for the premises known as 436 Keap Street, Brooklyn, New York, the terms of which shall be more fully discussed below;
Petitioner's Exhibit “4”—a certified copy of the Department of Labor Table 24 entitled “Historical Consumer Price Index for all Urban Consumers (CPI–U): U.S. city average, all items”–4 pages numbers 69–72 for a time period from 19132013 and Table 24C entitled “Historical Chained Consumer Price

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT