Retail Prop. Trust v. Maxatrend, LLC, 2007 NY Slip Op 52068(U) (N.Y. Sup. Ct. 9/19/2007), 562/07.
| Decision Date | 19 September 2007 |
| Docket Number | 562/07. |
| Citation | 2007 NY Slip Op 52068 |
| Parties | RETAIL PROPERTY TRUST, a Massachusetts Business Trust as Successor in Interest to Corporate Property Investors, Plaintiff, v. MAXATREND, LLC D/B/A VARIAZIONI, successor in interest to EZAT, INC. |
| Court | New York Supreme Court |
The plaintiff moves for an order pursuant to CPLR 3212 granting the plaintiff summary judgment on its complaint ejecting the defendant from its space, more commonly known as Store Number 2075 at the Roosevelt Field Mall, Garden City, New York, and terminating the lease agreement between the parties, awarding the plaintiff a money judgment for the amount of the unpaid rents, and granting the plaintiff summary judgment on its claims for attorneys' fees and setting the matter down for a hearing to determine the amount of those fees. The defendant opposes the motion.
The attorney for the plaintiff states, in detail, in a supporting affirmation dated June 28, 2007, as shown in the supporting affidavit of Dana L. Smith, a senior paralegal in the collections department of Simon Property, a principal in the plaintiff, from the time the plaintiff became the successor in interest to Corporate Property Investors, the defendant/tenant's payment of the rent has been chronically late or not forthcoming at all which has resulted in the plaintiff having to repeatedly institute legal proceedings to procure the payment of rent. The attorney for the plaintiff explains the arrears would generally be resolved through the defendant's principals signing a promissory note, and immediately thereafter the defendant would again fail to pay ongoing monthly rents, and frequently the payments as required under the promissory note. The attorney for the plaintiff points out no fewer than 27 notices of default for the defendant's failure to pay the rent have been issued by the plaintiff under the lease terms. The attorney for the plaintiff notes no fewer than five summary proceedings have been commenced by the plaintiff against the defendant in the Nassau County District Court with appearances for hearings on those proceedings more than 11 times. The attorney for the plaintiff maintains, at moment of the supporting affirmation by plaintiff's counsel dated June 28, 2007, the defendant's arrearage total $101,471.92. The attorney for the plaintiff asserts the plaintiff is out of pocket for legal fees and costs associated with the matters involving the nonpayment of rent. The attorney for the plaintiff avers the defendant's tenancy has been terminated, and the plaintiff is entitled to possession of the space.
The attorney for the defendant states, in detail, in a opposing affirmation dated July 10, 2007, to the plaintiff's motion, the defendant should be awarded summary judgment dismissing the plaintiff's first and third causes of action, to wit seeking the recovery of real property and an award of attorneys' fees. The attorney for the defendant points out the complaint fails to state the plaintiff's interest in the subject premises, the plaintiff did not terminate the defendant's tenancy in the subject premises prior to the commencement of the this case, the plaintiff's purported termination of the defendant's tenancy in the subject premises subsequent to the commencement of this case is invalid because there is no proof of service of the notice termination upon the defendant and because the notice of termination was signed by a person not authorized to do so, as shown in the affidavit dated July 2007 (showing a fax date of July 10, 2007), of Manoucher Hedvat, a member of the defendant, the plaintiff never ousted the defendant from the subject premises, and the complaint fails to describe the subject premises with reasonable certainty. The attorney for the defendant notes the plaintiff's motion should be denied, and the defendant should be awarded summary judgment dismissing the third cause of action because the plaintiff does not alleged it incurred any attorneys' fees in connection with reletting according to the lease terms, to wit Section 8.3A, and even if the Court were to hold the plaintiff is entitled to recover attorneys' fees pursuant to the lease terms, the plaintiff must still be the prevailing party in order to recover, and the plaintiff cannot achieve success on the central relief sought, to wit a possessory judgment, and thus will not be the prevailing party in this case.
The attorney for the plaintiff states, in detail, in a reply affirmation dated July 27, 2007, the opposition papers are untimely, and no excuse was proffered by the defendant in its papers for the delay. The plaintiff's attorney points out, although RPAPL § 713 requires a certified deed which is the basis of the defendant's arguments concerning the deed, that has nothing to do with the instant action. The plaintiff's attorney challenges the defense claim that it is impossible to determine whether the purported deed includes a subject premises is simply specious because the defendant does not in any way contest the lease agreement which provides a full description of the premises which is more than sufficient for the commencement of this action. The attorney for the plaintiff states, as to the defense claim the complaint does not allege the plaintiff has a present or immediate right to possession, the opposition papers are completely without any support for such a requirement, and ignore clearly stated provisions of the complaint, specifically paragraph eight. The attorney for the plaintiff asserts, as to the defense claim the plaintiff has not terminated the defendant's tenancy in the subject premises, the defendants provide no support for the claim that this is required, and ignore the plain language of the lease section which the defendant points to which indicated the landlord may serve a written notice of termination. The attorney for the plaintiff avers there is no such obligation upon the landlord especially in light of the defendant's past history in the leased space, and if a notice was served it would be completely futile. The attorney for the plaintiff notes the instant motion includes a notice of termination of the lease. The attorney for the plaintiff maintains the defendant cites no basis for its claim the notice of termination must be served prior to the commencement of the action for it to be effective, and the plaintiff was entitled to possession of the property, at the time the case was commenced, due to the defendant's failure to pay its rent which the defendant does not dispute. The attorney for the plaintiff points out the defense argument regarding the service of the notice ignores the notice was served by overnight mail, shown show in a supporting exhibit, as required under lease provisions, and the notice was not attached to the moving papers because it was anticipated the defendant would attempt to argue it had not received the notice. The attorney for the plaintiff counters the defense reliance on certain legal authority, and states the defense attempt is misplaced because the lease provisions do not mandate service of a notice of termination, but rather the plaintiff may serve such notice, and the repeated nonpayment of rent, which in this case is undisputed, forms the basis of an ejectment action for the breach of a substantial obligation under the lease. The attorney for the plaintiff parries the defense argument the property sought to be recovered has not been sufficiently described in the papers because the motion papers include a copy of the lease between...
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