Fisk Bldg. Associates LLC v. Shimazaki II, Inc.

• Decision Date: 24 August 2010
• Citation: 76 A.D.3d 468,907 N.Y.S.2d 2
• Parties: FISK BUILDING ASSOCIATES LLC, Plaintiff-Respondent, v. SHIMAZAKI II, INC., et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

907 N.Y.S.2d 2
76 A.D.3d 468

FISK BUILDING ASSOCIATES LLC, Plaintiff-Respondent,
v.
SHIMAZAKI II, INC., et al., Defendants-Appellants.

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

Aug. 24, 2010.

907 N.Y.S.2d 3

Hoffinger Stern & Ross, LLP, New York (Philip S. Ross of counsel), for appellants.

Robert A. Sternbach, New York, for respondent.

TOM, J.P., MAZZARELLI, ACOSTA, DeGRASSE, RICHTER, JJ.

76 A.D.3d 468

Order, Supreme Court, New York County (Louis B. York, J.), entered July 22, 2009, which, to the extent appealed from, granted plaintiff's motion for partial summary judgment dismissing the first and third affirmative defenses and the counterclaim, and to quash a subpoena, and denied defendants' cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Under the first affirmative defense, it was averred that plaintiff's eviction of defendant Shimazaki II was illegal. Contrary to defendants' assertion, plaintiff did not improperly execute on a stale warrant or obtain a warrant for rent that accrued after the commencement of the prior nonpayment summary proceeding. Rather, as was its right pursuant to Article 2(H) of the lease, plaintiff applied Shimazaki II's September and October 2006 payments to current charges instead of arrears.

As to defendants' cross motion for summary judgment dismissing the complaint, we find an issue of fact based on the version of facts most favorable to plaintiff. Plaintiff submitted the affidavit of its managing agent, saying that it accepted Shimazaki II's November and December 2006 payments solely on account of Shimazaki II's rent arrears and without any intention of reinstating its tenancy. Defendants' argument that plaintiff should have submitted the underlying business records, as opposed to an affidavit, is unpreserved ( see e.g. Empire Purveyors, Inc. v. Weinberg, 66 A.D.3d 508, 509, 885 N.Y.S.2d 905 [2009] ).

76 A.D.3d 469

Defendants failed to create a triable issue of fact sufficient to warrant

907 N.Y.S.2d 4

denial of plaintiff's motion to dismiss the first affirmative defense that Shimazaki II's eviction was illegal as based on an improperly issued warrant. We further reject defendants' argument that plaintiff's acceptance of rent after the issuance of the warrant created an issue of fact as to whether plaintiff "intended to revive the tenancy" ( see J.A.R. Mgt. Corp. v. Foster, 109 Misc.2d 693, 694, 442 N.Y.S.2d 723 [App.Term, 2d Dept.1980] ). By statute, the...