RECITATION, AS REQUIRED BY CPLR 2219 (A), OF THE PAPERS CONSIDERED ON THE REVIEW OF THIS MOTION FOR SUMMARY JUDGMENT.PAPERS NUMBEREDNOTICE OF MOTION AND ANNEXED AFFIDAVITS 1DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER ON THIS MOTION IS AS FOLLOWS:Petitioner, Neck Road One Realty LLC (Neck Road) filed the instant motion seeking (1) to strike Respondent, Magna Physical Therapy P.C.’s (Magna) affirmative defenses and counterclaim (CPLR 3211); and (2) summary judgment pursuant to CPLR 3212. Specifically, Neck Road alleges service was proper pursuant to RPAPL 735 as it served the rent demand and notice of petition upon Magna’s employee, with proper mailings completed. Thus, Magna’s First and Second affirmative defenses regarding proper service is boilerplate and should be stricken. Neck Road further asserts Magna’s Third affirmative defense should be stricken since failure to comply with Limited Liability Company Law §206 is not a jurisdictional defect. With regard to Magna’s Fourth affirmative defense, Neck Road asserts it should be stricken since it is not “sufficiently particular” pursuant to CPLR 3013. Neck Road argues Magna’s Fifth affirmative defense should be stricken since there is no additional rental agreement with any other party and Magna’s Sixth affirmative defense is not a defense. Finally, Neck Road argues the Court must strike Magna’s Counterclaim since Magna, as assignee, contractually agreed not to assert any counterclaims.Magna has opposed the motion and has set forth its opposition by way of an attorney affirmation.Neck Road filed a non-payment petition against Magna seeking rental arrears of $47,707.43 for rents and additional rents due from May 2018 to September 2018 for the premises at 1601 Gravesend Neck Rd, Brooklyn NY, Space 11, second floor (premises). Neck Road served a 5-Day Notice of Substitute Service upon “Jane Doe” at the premises followed by certified and first-class mailing to the premises along with additional mailings and served the notice of petition and petition via substitute service upon Lena “Doe,” an employee at the premises with additional mailings via first class and certified; both filed with the Court on September 24, 2018 and September 28, 2018, respectively.Magna interposed a verified answer, on October 31, 2018, asserting general denials; six affirmative defenses; and one counterclaim.Neck Road executed the now expired lease at issue with non-party Impress Choice, Inc. on December 18, 2003, to rent the subject premises with the lease term commencing January 1, 2004 and expiring on December 30, 2013. Impress Choice assigned the lease to Magna on March 3, 2011, with base rent at $24,000 per annum initially; thereafter increasing annually with base rent at $64,324.59 in 2013, the end of the written lease term. Neck Road alleges the parties had conversations to renew the lease and attached to its motion papers an unsigned rent proposal with monthly base rents of $5,200 in 2014; $5,460 in 2015; $5,733 in 2016; $6,019.65 in 2017 and $6,320.63 in 2018, plus additional rents. Magna paid rents and additional rents from the expiration of the written lease (2013) through April 2018.CPLR 3211(b) STRIKING DEFENSESPursuant to CPLR 3211(b), in a motion to strike respondent’s affirmative defenses it is petitioner’s burden to prove respondent’s defenses are “without merit as a matter of law” (Vita v. New York Waste Servs., LLC, 34 AD3d 559 [2d Dept 2006]). This court is obligated to afford Magna the benefit of every reasonable inference of its pleading, which is to be liberally construed. If “there is any doubt as to the availability of a defense, it should not be dismissed” (Warwick v. Cruz, 270 AD2d 255 [2d Dept 2000]). A defense should not be stricken where there are questions of fact requiring trial (Atlas Feather Corp. v. Pine Top Ins. Co., 128 AD2d 578, 578-579 [2d Dept 1987]).VERIFICATION OF ANSWERIn its moving papers, Neck Road raised an issue that Magna did not verify its answer, which it later retracted on reply after searching the record and noting Magna’s answer was verified. Nonetheless, an answer in a summary proceeding need not be verified, even if the petition is verified (see RPAPL 743; Stein v. Jeff’s Express, Inc., 37 Misc3d 94, 96, 955 NYS2d 713, 715 [App Term 2d, 11th, & 13th Jud Dists 2012]).FIRST AND SECOND AFFIRMATIVE DEFENSESNeck Road’s process server’s affidavits of service of both the rent demand and notice of petition alleges service upon employees “Jane Doe” and Lena “Doe,” respectively. In opposition, Magna unequivocally states that no employee fits the description alleged in Petitioner’s affidavit of service. Magna’s lack of service defense is moot since Magna waived the defense of lack of personal jurisdiction by failing to move to dismiss Neck Road’s Notice of Petition and Petition for lack of personal jurisdiction within 60 days after serving the answer (CPLR 3211 [a] [8]; [e]). Notwithstanding the parties’ silence on this matter, it is incumbent upon this Court to dismiss Magna’s first and second affirmative defense since the motion to dismiss is waived (Wiebusch v. Bethany Mem. Reform Church, 9 AD3d 315 [1st Dept 2004]). Accordingly, the first and second affirmative defenses are stricken.THIRD AFFIRMATIVE DEFENSEIn order for a Limited Liability Company to maintain an action in New York courts, the petitioner must comply with Limited Liability Company Law §206, which mandates the LLC to publish its articles of organization for six successive weeks in two local newspapers, within 120 days of its formation, as determined by the clerk of the county where the LLC has its principal office with its filing affidavit filed with the Department of State confirming publication thereof. Magna’s third affirmative defense asserting Neck Road has “not complied with the publication provisions of Limited Liability Company Law §206,” without more, is conclusory and lacks any basis in its pleadings or opposition papers. Moreover, Neck One proved it complied with Limited Liability Company Law §206 as it attached its articles of publication as required under the statute. Accordingly, the third affirmative defense is stricken.FOURTH AFFIRMATIVE DEFENSEMagna alleges Neck Road “is barred from claiming additional rent charges in this proceeding since there is no agreement for the payment of said charges existing between the parties.” In turn, Neck Road argues Magna paid rents and additional rents for nearly 5 years after the lease expired and attaches an affidavit from its member, Kenneth Segal, indicating the parties also had an oral agreement regarding rentals. Neck Road has demonstrated this defense is without merit as a matter of law (Vita v. New York Waste Servs., supra). Magna, in opposition, does not refute its payments of additional rent charges nor does Magna provide an affidavit from anyone with personal knowledge to support its affirmative defense. Magna’s statement of duress and intimidation are vague, conclusory, and unsupported by anyone with personal knowledge. Thus, this affirmative defense is dismissed as abandoned (Katz v. Miller, 991 NYS2d 346 [2d Dept 2014]). Accordingly, the fourth affirmative defense stricken.FIFTH AFFIRMATIVE DEFENSEMagna’s claim that Neck Road entered into a new lease, which coincides with its rental, and as such relieves it of further obligation to pay rent is unsupported and unsubstantiated by an attached one-page statement of a purported unsigned agreement. This allegation of a new lease without any proof thereof, including any affidavit to support this defense does not relieve Magna of its rental obligation. Thus, Neck Road has demonstrated this defense is without merit as a matter of law (Vita v. New York Waste Servs., supra). Accordingly, the fifth affirmative defense stricken.SIXTH AFFIRMATIVE DEFENSEMagna, in its sixth affirmative defense, reserves the right to amend its answer upon discovery and may do so pursuant to CPLR 3018 (b). However, in this summary proceeding Magna has failed to request discovery and may not prejudice Neck Road’s property rights in this action. Accordingly, the sixth affirmative defense is stricken.COUNTERCLAIMS FORFEITED IN LEASEHerein, Magna, pursuant to paragraph 44 of the written commercial lease, waived its right to assert counterclaims in this non-payment proceeding (Lana Estates, Inc. v. National Energy Reduction Corp., 123 Misc2d 324, 473 NYS2d 912 [Civ Ct Queens 1984]; see also Mid-Island Shopping Plaza, Co. v. Cutler, 112 AD2d 405 [1985]) and this Court is bound to enforce the contractual terms the parties’ agreed upon (In re Malloy’s Estate, 278 NY 429, 17 NE2d 108 [1938]). Accordingly, Magna’s counterclaim is dismissed.SUMMARY JUDGMENTSummary judgment is a drastic remedy and should only be granted where the movant demonstrates that there are absolutely no triable issues of fact. Neck Road has presented sufficient evidence to eliminate any material issues of fact (see Vega v. Restani Constr. Corp., supra; Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, [1985]). This Court has given Magna every favorable inference that may be drawn from pleadings, affirmations, affidavits, and competing contentions of the parties (see, e.g. Nicklas v. Tedlen Realty Corp., 305 AD2d 385, 386 [2d Dept 2003]; see also Akseizer v. Kramer, 265 AD2d 356 [2d Dept 1999]). Magna has failed to submit an affidavit in opposition to Neck Road’s motion or tender evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which would require a trial or tender an acceptable excuse for his failure to do so (see Greenberg v. Coronet Prop. Co., 167 AD2d 291 [1st Dept1990]). Magna has failed to support any of its affirmative defenses in opposition to Neck Road’s summary judgment motion and has waived its motion to procedurally dismiss the petition; thus, all Magna’s affirmative defenses are dismissed (Katz v. Miller, supra; CPLR 3211 [a] [8]; [e]).Accordingly, Neck Road has established its prima facie burden of entitlement to judgment as a matter of law.CONCLUSIONAccordingly, it isORDERED, Respondent’s first through sixth affirmative defenses are stricken and Respondent’s counterclaim is dismissed.ORDERED, Petitioner’s motion for final judgment of possession is granted.Warrant issued forthwith. Execution stayed 10 days.This constitutes the Decision and Order of the Court.Dated: April 22, 2019
