Recitation, as required by CPLR 2219 (a), of the papers considered in the review of these motions:Papers NumberedRespondent’s Affirmation in Support of its Motion for Summary Judgment with annexed exhibits (dated February 11, 2019) 1Petitioner’s Affirmation in Support of its Cross-Motion for Leave to Amend the Petition, and in Opposition to Respondent’s Motion, with annexed exhibit (dated February 18, 2019) 2DECISION/ORDER The petitioner, Baylan, Inc. (hereinafter, “Petitioner”), commenced this action against the respondent, National Granite Distributors, Corp. (hereinafter, “Respondent”), seeking recovery of unpaid rent for a commercial lease at 2351 Richmond Terrace in Staten Island, New York, by petition filed on January 3, 2019. Respondent filed an answer on January 24, 2019.Currently before the Court is Respondent’s motion for summary judgment seeking dismissal of the action pursuant to CPLR 3212. Petitioner submitted a cross-motion for leave to amend the petition by incorporating additional rents due and owed by Respondent since Petitioner’s first filing, along with opposition to Respondent’s motion. There was no reply from Respondent. Oral arguments were held on February 21, 2019 with both sides represented by counsel, and the Court’s decision was reserved.The Court hereby grants Respondent’s motion, and Petitioner’s cross-motion is denied.Petitioner’s action is based on a rent demand, dated December 12, 2018 (attached to Respondent’s motion as “Exhibit B”), in the amount of $18,091.72 “for arrears dating back to September 16, 2018″ and, though the rent demand fails to state how much is owed for each month, the petition (attached to Respondent’s motion as “Exhibit D”) specifies the amount owed as $4,522.93 for each of September 2018, October 2018, November 2018, and December 2018.Respondent attached to its motion a copy of the lease entered between the two parties, dated October 24, 2012 (“Exhibit A”), wherein paragraph 5.1 set the monthly rent at $1,000.00, and paragraph 1.3 set the expiration date at December 14, 2016 “unless the Lease is extended pursuant to Tenant’s option to renew hereunder.” Paragraph 45.1 provided Respondent with an option to renew the lease for an additional four-year term with the same terms and conditions as the initial term except that, as provided by paragraph 45.2 (d), the monthly rent would increase by 3.5 percent for the first year of the renewal term, and an additional 3.5 percent each year thereafter. Respondent argues that, after calculating all allowable increases, the monthly rent could not come close to the amount being claimed by Petitioner.Respondent also attached to its motion an affidavit from Ramamurthy Eerappa, identified as the Manager of Respondent corporation, wherein Eerappa states that Respondent exercised its option to renew the lease for an additional four years, and that a lease agreement with monthly rent set at $4,522.93 was never entered.A motion for summary judgment should be granted if, upon all the papers and proofs submitted, the cause of action is established sufficiently to warrant the court as a matter of law in directing judgment in favor of any of the parties.” (CPLR 3212). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Gonzalez v. Abreu, 162 A.D.3d 748 [App Div 2d Dept 2018], citing Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [Ct App 1986]), and although a motion for summary judgment is usually based upon the overall merits of the case rather than on an individual defense, once issue has been joined, a motion for summary judgment may be based on CPLR 3211 (a) grounds which have been asserted in the answer (Fischer v. RWSP Realty, LLC, 53 A.D.3d 594 [App Div 2d Dept 2008]). In its answer (a copy of which is attached to Respondent’s motion as “Exhibit C”), Respondent asserted a defense that the petition fails to state a cause of action upon which relief can be granted (CPLR 3211 [a] [7]).When considering an argument under CPLR 3211, courts will “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 NY2d 83, 87-88 [Ct App 1994]). While affidavits may be considered, if the motion has not been converted to a CPLR 3212 motion for summary judgment, they are generally intended to remedy pleading defects and not to offer evidentiary support for properly pleaded claims (see Rovello v. Orfino Realty, Co., 40 NY2d 633, 635-636 [Ct App 1976]). By contrast, a motion for summary judgment, which seeks a determination that there are no material issues of fact for trial, assumes a complete evidentiary record (Nonnon v. City of New York, 9 N.Y.3d 825, 827 [Ct App 2007]).Courts have held that allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not presumed to be true or accorded every favorable inference (David v. Hack, 97 A.D.3d 437 [ App Div 1st Dept 2012]; Biondi v. Beekman Hill House Apt. Corp., 257 A.D.2d 76, 81 [App Div 1st Dept 1999], affd 94 N.Y.2d 659 [Ct App 2000]; Kliebert v. McKoan, 228 A.D.2d 232 [App Div 1st Dept 1996], lv denied 89 N.Y.2d 802 [Ct App 1996]). In this case, the amount of unpaid rent for which Petitioner commenced the action appears devoid of any basis, as the terms of the lease agreement, even when considering annual increases of 3.5 percent, cannot yield the relatively exorbitant amount being claimed.Upon this finding, the burden now shifts to Petitioner to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (159 MP Corp. v. Redbridge Bedford, LLC, 160 A.D.3d 176, 186 [App Div 2d Dept 2018], citing Zuckerman v. City of New York, 49 NY2d 557 [Ct App 1980]). Petitioner attempts to satisfy its burden through an affirmation by Petitioner’s counsel, stating that the lease was orally modified on multiple occasions to the extent that the monthly rent was set at $4,522.93 for the months at issue. However, an attorney’s affirmation that is not based upon personal knowledge is of no probative or evidentiary significance, and is thereby insufficient to establish the existence of material issues of fact (Nerayoff v. Khorshad, 89 N.Y.S.3d 909, 910 [App Div 2d Dept 2019]). Petitioner failed to attach an affidavit from someone with personal knowledge, or any documentary evidence proving that the agreement was modified at any point.Accordingly, Respondent’s motion is hereby granted and the action is dismissed without prejudice, as the petition fails to state a cause of action upon which relief can be granted. Petitioner’s cross-motion has been rendered moot and is hereby denied.The foregoing constitutes the Decision and Order of the Court.Dated: March 22, 2019Staten Island, New York
