White Plains Galleria L.T.D. Partnership v. Woodlawn Partners, 2004 NY Slip Op 50811(U) (NY 8/3/2004)
| Decision Date | 03 August 2004 |
| Docket Number | SP 982/04. |
| Citation | 2004 NY Slip Op 50811(U) |
| Parties | WHITE PLAINS GALLERIA LIMITED PARTNERSHIP, Petitioner (Landlord), v. WOODLAWN PARTNERS d/b/a RANCH 1 271 East 237th Street Bronx, New York 10470 and STORE NO. 237 THE GALLERIA OF WHITE PLAINS, Respondent (Tenant), and "JOHN DOE" STORE NO. 237 THE GALLERIA OF WHITE PLAINS WHITE PLAINS, NEW YORK 10601 Respondent (Undertenant).* NAME OF UNDERTENANT BEING FICTITIOUS and unknown to Petitioner, person intended being in possession of the Premises herein described. |
| Court | New York Court of Appeals Court of Appeals |
Paul B. Bergins, White Plains, New York, Attorney for Petitioner.
Dibbini & Cacace, By: James G. Dibbini, White Plains, New York, Attorneys for Respondent.
Petitioner's motion pursuant to CPLR 3211 (a) (1); (7) and CPLR 3211 (b) for an order dismissing the respondent's affirmative defenses and counterclaims is granted; motion pursuant to CPLR 3212 for an order awarding summary judgment is granted. Respondent's motion pursuant to CPLR 3211 (a) (7) and CPLR 3211 (a) (10) for an order dismissing the petition, or in the alternative, pursuant to CPLR 3024 (a) for a more definite statement, is denied in its entirety.
On February 13, 1997 the parties executed a commercial lease agreement wherein the respondent assumed possession of premises in the Galleria at White Plains, a shopping mall located in Westchester County, New York (hereinafter "Galleria"). In or about June 1997, the respondent, a self-proclaimed "grilled chicken baron" and provider of "the best grilled chicken sandwich on earth," opened for business, catering to patrons in the Galleria's food court. At that time, J.C. Penney, Macy's and Bunnies Children's Department were the three anchor stores operating in the Galleria.
The petitioner commenced the instant proceeding on April 29, 2004 to recover: (1) possession of the subject premises; (2) a money judgment based upon the respondent's failure to pay rent for the period January 2004 thru April 2004; and (3) reasonable attorney's fees pursuant to a lease provision which provides for the same. On May 10, 2004, the respondent served its answer which pleaded general denials, five affirmative defenses and two counterclaims.
The respondent's first affirmative defense seeks dismissal of the proceeding based upon the petitioner's failure to properly identify "Woodlawn Partners" as a corporation. It is evident from the lease that the respondent failed to disclose its corporate status at the time of execution. However, a review of Federal and State taxpayer documents, a certificate of incorporation, cancelled checks, liability insurance agreements and a stock certificate manifestly shows that the respondent is a corporation. Nonetheless, the omission from a pleading of a party's corporate status does not ipso facto warrant dismissal.
It is well settled that "amendments [of a caption] are permitted where the correct party defendant has been served with process, but under a misnomer, and where the misnomer could not possibly have misled the defendant concerning who it was that the plaintiff was in fact seeking to sue" (Creative Cabinet Corp. of America, Inc. v. Future Visions Computer Store, 140 A.D.2d 483, 484 [2d Dept. 1988]; see also Kurz v. Casey, 81 A.D.2d 634 [2d Dept. 1981];Cutting Edge, Inc. v. Santora, 4 A.D.3d 867 [4th Dept. 2004];Air Tite Manufacturing, Inc. v. Acropolis Associates, 202 A.D.2d 1067 [4th Dept. 1994]). In this proceeding, the respondent fails to allege that it was misled or otherwise prejudiced by the petitioner's failure to designate the respondent as a corporation (see e.g. Ober v. The Rye Town Hilton, 159 A.D.2d 16 [2d Dept. 1990]).
Accordingly, the caption is amended to reflect the name Woodlawn Partners, Inc. d/b/a Ranch 1 as the proper respondent (CPLR 305 [c]). The respondent's first affirmative defense is dismissed.
The second affirmative defense in the respondent's answer alleges that the petitioner failed to serve a demand for rent as proscribed in the parties' lease. Notably, the respondent's motion papers are devoid of evidence in support of this defense.1 Rather, the respondent's moving papers attack service of the notice of petition and petition, alleging that the same were not served in accordance with a notice provision in the lease.
It has long been recognized that a landlord and tenant may, by the terms of a lease, agree to a specific manner of service of notices, and that those terms are generally enforceable ( see Miller v. MMT Corporation, 182 Misc.2d 670 [Civ. Ct. N.Y. Co. 1999]). Paragraph 56 of the lease states in pertinent part as follows: "Notices: Every notice, demand, request or other communication which may be or is required to be given under this Lease shall be in writing and shall be sent by either expedited courier or mail service bearing proof of receipt, such as Federal Express or by United States Certified or Registered Mail, postage prepaid, return receipt requested, and shall be addressed: ... (b) if to tenant, to tenant's notice address [271 East 237th Street, Bronx, New York 10470]."
The affidavit of service filed by the petitioner demonstrates that the notice of petition and petition were personally delivered to the respondent's managing agent at the subject premises and mailed in compliance with RPAPL § 735. In addition, the affidavit of service and accompanying return receipts indicate that the pleadings were sent by certified and regular mail to the tenant's notice address.
The Court finds that service was effectuated in accordance with both the applicable lease provision and RPAPL § 735. Further, the respondent has received actual notice of this proceeding (see e.g. Mid Island Shopping Plaza Co. v. Judith's Clockworks, Ltd., 135 A.D.2d 617 [2d Dept. 1997]). The respondent's second affirmative defense is dismissed.
The respondent's third affirmative defense states that both the petition and "notice to quit" are defective because each paper was signed by petitioner's general manager.2 While an improperly verified pleading may be treated as a nullity, it may be so considered only if timely notice is given to the adversary with "due diligence" (see Chan v. Adossa, 195 Misc.2d 590 [App. Term 2d Dept. 2003]; CPLR 3022). This requirement applies in a summary proceeding (see Miller v. MMT Corporation, supra;SLG Graybar, L.L.C. v. John Hannaway Law Offices, 182 Misc.2d 217 [Civ. Ct. N.Y. Co. 1999];Ft. Holding Corp. v. Otero, 157 Misc.2d 834 [Civ. Ct. N.Y. Co. 1993]). "Due diligence" has been interpreted to mean notice given immediately or within twenty-four hours of the receipt of a defective pleading (see Ladore v. The Mayor and Board of Trustees of the Village of Portchester, 70 A.D.2d 603 [2d Dept. 1979]; Air New York, Inc. v. Alphonse Hotel Corp., 86 A.D.2d 932 [3rd Dept. 1982]).
The first time the respondent raised the issue of improper verification was in its answer dated May 6, 2004, seven days after the service of the petition and well beyond a period of time acceptable under the prevailing case law. Moreover, the respondent has never argued that the alleged improper verification resulted in prejudice to a substantial right ( see Theodoridis v. American Transit Insurance Co., 210 A.D.2d 397 [2d Dept. 1994]). Accordingly, the objection is deemed waived and the respondent's third affirmative defense is dismissed.
Notwithstanding the foregoing, the Court concludes that the verification in the petition and "notice to quit" is proper. The proof in support of the petitioner's motion indicates that the general manager has been employed in such a capacity for approximately fifteen years and that her day to day management of the Galleria resulted in numerous dealings with the respondent's President. Given these facts, the general manager of the Galleria had authority to bind the landlord and the respondent has offered no evidence to refute this conclusion (see 54-55 Street Co. v. Torres, 171 Misc.2d 237 [App. Term 1st Dept. 1997]; Teachers College v. Wolterding, 75 Misc.2d 465 [Civ. Ct. N.Y. Co. 1973], rev'd on other grounds 77 Misc.2d 81 [App. Term 1st Dept. 1974]).
In its fourth affirmative defense/first counterclaim the respondent alleges that the petitioner has failed to secure and maintain three anchor stores in the Galleria from April 2001 through September 2003, thereby decreasing the flow of traffic in the mall and resulting in lost business and revenue in the amount of $420,000.3 Paragraph 2(c) of the lease states in relevant part as follows:
At the outset, a lease is subject to the rules of construction applicable to any other agreement (see George Backer Management Corp. v. Acme Quilting Co., Inc., 46 N.Y.2d 211 [1978]). When interpreting a contract, it has been repeatedly held that complete writings should generally be enforced according to their terms and that this rule has even greater force in the context of real property transactions where the instrument was negotiated between sophisticated, counseled business people dealing at arm's length (see Wallace v. 600 Partners Co., 86 N.Y.2d 543 [1995]). Further, courts are extremely reluctant to interpret an agreement as impliedly stating something which the parties have neglected to expressly include (see Vermont Teddy Bear Co., Inc. v. 538 Madison...
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