Ribellino v. Fleet 2000, Inc., 2009 NY Slip Op 32315(U) (N.Y. Sup. Ct. 10/7/2009)
| Decision Date | 07 October 2009 |
| Docket Number | 7501-2008 |
| Citation | 2009 NY Slip Op 32315 |
| Parties | RICHARD RIBELLINO & ALVA PARTNERSHIP, Plaintiffs, v. FLEET 2000, INC., and ZELIG ROSENFELD, Defendants. |
| Court | New York Supreme Court |
RICHARD A. KLASS, ESQ., Brooklyn, New York, For Plaintiff(s).
MARCH ARONSON, ESQ., Brooklyn, New York, For Defendant: Zelig Rosenfeld.
No Appearance by Defendant Fleet 2000, Inc.
DECISION
Plaintiffs, Richard Ribellino and Alva Partnership seek an order pursuant to CPLR § 3212 granting summary judgment against defendant Zelig Rosenfeld in the amount of $157,420.63, with interest from December 1, 2007, as well as costs and reasonable attorney's fees in accordance with the terms of a certain lease. Additionally, plaintiffs move pursuant to CPLR § 3215 for a default judgment against defendant Fleet 2000, Inc. for the same amount, also with interest from December 1, 2007. Finally, and pursuant to CPLR § § 8201 and 8202, plaintiffs seek costs and disbursements of the instant action and the instant motion. Defendant Zelig Rosenfeld cross-moves for an order denying plaintiffs' summary judgment motion, and for an order dismissing the action as against him.
Plaintiffs commenced this action on March 6, 2008, by filing a summons and complaint dated March 3, 2008, seeking to recover rent arrears pursuant to a commercial lease agreement executed on February 4, 1997, for the premises located at 5901 2nd Avenue in Brooklyn, New York. Issue was joined by service of an answer by defendant Rosenfeld on September 4, 2008. Defendant Fleet 2000, Inc. has not appeared in this action.
Defendant Rosenfeld executed the original lease agreement both as President of Fleet 2000, Inc. and as personal guarantor of performance and payment of rent and additional rent, which guaranty underlies plaintiffs' claims as against defendant Rosenfeld. The initial term of the lease agreement was two years and paragraph 43 provides for two-year renewal periods where, with the exception of the annual rent, all terms and conditions of the of the original lease were expressly preserved. Defendants exercised the options and renewed the lease for successive terms by letters, signed by defendant Rosenfeld, and dated 10/21/98, 1/29/01, 12/31/02 and 12/20/04, respectively. The fourth and final renewal option covered the period of February 1, 2005 to January 31, 2006 and was not exercised.
According to plaintiffs' bill of particulars, the amount of defendants' rent arrears is $157,420.63, and the rent arrears claimed to be owed were reduced to a money judgment entered in the Civil Court of the City of New York, County of Kings on October 29, 2007, as a result of an action brought in that court under Index No. LT 68035/2007.
In opposition, defendant contends that plaintiffs' motion must be denied since it is only supported by an attorney's affirmation, and lacks an affidavit by any person with personal knowledge of the facts. Defendant asserts that the affirmation of plaintiffs' counsel contains allegations which are not supported by the documentary evidence, including but not limited to, (1) the parties to the agreement, (2) the period of the agreement, (3) the liability of the parties, (4) the alleged amount of rental arrears, and (5) the manner in which arrears were computed. Further, defendant contends that he is not a proper party herein, and that by letter dated January 3, 2005 he notified plaintiffs that Fleet 2000, Inc. would cease operations effective February 28, 2005, and that effective March 1, 2005, all assets would be transferred to an entity known as Fleet 2005, Inc., with which defendant would have no connection. In that letter, defendant provided plaintiffs with the name of an individual to contact regarding billing and other inquiries. He thus contends that once the lease expired, a new entity became the tenant which was, at most, a month-to-month tenant, and that once the lease had expired so did the guaranty upon which plaintiffs rely. This he urges, extinguished his liability for any payments after February of 2005.
Plaintiffs aver that they received Mr. Rosenfeld's letter dated December 24, 2004 indicating his intent to exercise his option to renew the lease, and that defendant continued to maintain occupancy of the premises throughout the renewal period. Plaintiffs, however, deny receiving the January 3, 2005 letter allegedly mailed, noting that such letter must be by registered or certified mail as required under paragraph 38 of the lease. Plaintiffs further argue that defendants' purported assignment, exercised without consent of plaintiffs, is a nullity because it violated the provisions of paragraph 30 of the lease, and further assert that defendants violated the provisions of paragraph 34 by failing to quit the premises and deliver it vacant to the landlord upon the expiration of the lease.
Finally, plaintiffs contend that Rosenfeld is collaterally estopped from challenging the validity of the money judgement, in the amount of $66,400.00, obtained against Fleet 2000 in the Civil Court.
Summary judgment is a drastic remedy as it deprives a party of his or her day in court and should be granted when it is clear that no triable issues of fact exists. See Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986). The burden is upon the moving party to make a prima facie showing that the movant is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts. See Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 760 N.Y.S.2d 397, 790 N.E.2d 772 (2003). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers. See Ayotte v. Gervasio, 81 N.Y.2d 1062, 601 N.Y.S.2d 463, 619 N.E.2d 400 (1993). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact. See Alvarez v. Prospect Hospital, supra at 324. Mere conclusory statements, expressions of hope, or unsubstantiated allegations are insufficient to defeat the motion. See Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793 (1988).
In the first instance, there is no merit to defendant's contention that plaintiffs' motion lacks sufficient support. Although CPLR § 3212(b) requires a motion for summary judgment to be supported by an affidavit of a person having knowledge of the facts, the affidavit of an attorney based on documentary evidence in the attorney's possession may have probative value and should be evaluated by the court. See Getlan v. Hofstra Univ., 41 A.D.2d 830, 831, 342 N.Y.S.2d 44 (2nd Dept. 1973), app. dismissed., 33 N.Y.2d 515, 348 N.Y.S.2d 1026 (1973). The affirmation of plaintiffs' attorney asserts that he is fully familiar with the facts of the case and the documentary evidence including, inter alia, a copy of the lease agreement, bills, invoices and correspondence, is sufficient.
A provision in a lease which restricts assignment or subletting and requires consent of the landlord prior to doing so is enforceable. See Matter of Clason Management Co. v. Altman, 40 A.D.2d 635, 336 N.Y.S.2d (1st Dept. 1972). The instant lease agreement contains such a restriction. Paragraph 30 clearly and explicitly bars the tenant from assigning or transferring the lease or subletting the premises, unless the tenant obtains the...
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