RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION NOTICE OF MOTION & AFFIDAVITS ANNEXED 1-2 CROSS-MOTION & AFFIDAVITS ANNEXED 3-4 AFFIRMATION/AFFIDAVIT IN SUPPORT OF CROSS-MOTION & OPPOSITION TO MOTION 5-6 AFFIRMATION/AFFIDAVIT IN OPPOSITION TO CROSS-MOTION & REPLY 7-8 DECISION AND ORDER SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT INTRODUCTION Respondent moves This Honorable Court by Notice of Motion to dismiss Summary Holdover Proceeding for failure to properly describe the leasehold premises pursuant to RPAPL §741 (3), whereas Petitioner cross-moves pursuant to CPLR 3212 (b) granting Summary Judgment of Possession, with such other and further relief deemed just and proper. For the reasons set forth below, Limited Single-Issue Trial to determine whether description of leasehold premises in Summary Holdover Proceeding complies with RPAPL §741 (3) is ORDERED. PROCEDURAL AND FACTUAL HISTORY Petitioner as “Landlord is New York City Economic Development Corporation1 (‘NYCEDC’)… holds a lease for Bush Terminal from The City of New York2, as Over-Landlord (the ‘City’) and NYCDEC, as tenant, dated as of December 1, 2002, (the ‘Overlease’)”.3 Respondent Kings Action Group Corp became a tenant within the subject property by way of lease dated June 1, 2001, whereby Petitioner’s assignor predecessor in interest Harborside Management Corp held a lease from the Over-Landlord City for the same lease period as for Respondent, to wit, “commence June 1, 2001 and be continuous for a period of Eight (8) years and seven (7) months… The term of this lease shall be terminated only as a result of a determination of the New York City Economic Development Corporation and this Lease shall be considered terminated one day before the New York City Economic Development Corporation terminates its Lease with Harborside Management.”4 This 2001 lease signed by Respondent describes the leasehold as “First Floor North area designated 4100 1st Avenue, Brooklyn New York,” totaling 12,000 Square Feet. “Thereafter, Harborside assigned all its rights, title and interest by an assignment and assumption of lease dated as of December 1, 2002″ to NYCEDC with The City of New York, Department of Small Business Services as Over-Landlord.5 Subsequent to the expiration of 2001 lease, NYCEDC as Petitioner Landlord prepared and offered lease to Respondent dated February 1, 2010, with scheduled incremental rent increases, which Respondent failed to execute yet remained in leasehold premises continuing to pay rent payments pursuant to expired 2001 lease, to wit, $8,000 monthly.6 Unexecuted 2010 lease prepared by Petitioner NYCEDC describes leasehold as follows: That certain portion of space containing approximately 12,000 rentable square feet (“Tenant’s Floor Area”), in Building B (the “Building”) commonly referred to as “4100-4116 1st Avenue” or “Building B”, which Building is located at 4100 1st Avenue, within Bush Terminal Industrial Complex in Brooklyn, County of Kings, City of New York, as shown on the diagram attached hereto and made part of this Lease as Exhibit A.7 Not included in the Petitioner’s papers is the diagram upon which it references as being attached to the 2010 unexecuted lease. Pursuant to RPL §232-a, Petitioner served Thirty Day Notice of Termination effective July 31, 2019 upon Respondent, deemed a month to month tenant. Due to Respondent’s failure to quit, vacate nor surrender possession by July 31, 2019, Petitioner commenced the instant holdover proceeding by the service and filing of a Notice of Petition and Petition based on Respondent’s continued possession of the premises after the July 31, 2019 termination date. Issue joined upon Respondent’s Verified Answer dated October 11, 2019. Respondent moved by Notice of Motion for Summary Judgment pursuant to RPAPL §741 (3), alleging “Petition fails to fully and properly describe the premises sought to be recovered…” filed with Clerk on November 13, 2019. Subsequently, Petitioner moved by Notice of Cross Motion for Summary Judgment pursuant to CPLR 3212 (b); Hearing for Use and Occupancy due and owing by Respondent; and pursuant to CPLR 3211 (b), dismissing Respondent’s Affirmative Defenses. After oral argument held on January 13, 2020, Court reserved Decision. DISCUSSION Pursuant to NYS CPLR 3212 (b), Respondent-Tenant moves by Notice of Motion to establish that as a matter of law, the admissible evidence presented within the motion papers make out a prima facie entitlement to summary judgment to dismiss holdover proceeding for failure to properly describe leasehold premises as required by RPAPL §741 (3); whereas, Petitioner-Landlord cross-moves by notice of motion to establish that as a matter of law, the admissible evidence presented within the motion papers make out a prima facie entitlement to summary judgment of possession to the leasehold premises. CPLR 3212 (b) states: (b) Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. Where an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to subparagraph (i) of paragraph (1) of subdivision (d) of section 3101 was not furnished prior to the submission of the affidavit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion. It is well-established law that summary judgment is a drastic remedy in that it deprives the non-movant party of her day in court and should only be granted if there is no material and triable issue of fact (Sillman v. Twentieth Centurv-Fox Film Corp., 3 NY2d 395 [1957]; Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). The burden is upon movant to make its prima facie showing of entitlement to judgment as a matter of law by tendering sufficient admissible evidence to demonstrate the absence of any material issue of fact (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v. City of New York, 49 NY2d 557, 562; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; see also Giuffrida v. Citibank, 100 NY2d 72 [2003]). It must clearly appear to the court that unequivocally there is no material and triable issue of fact presented from the motion papers (Di Menna & Sons v. City of New York, 301 NY 118 [Ct App 1950]). Where the court finds an existence of such an issue or where the issue may be so deemed “arguable” requires denial of summary judgment (Braun v. Carey, 280 App Div 1019 [3d Dept 1952]; Barrett v. Jacobs, 255 NY 520, 522 [Ct App 1931]). “Issue-finding, rather than issue-determination, is the key to the procedure” for the court (Esteve v. Avad, 271 App Div 725, 727 [1st Dept 1947]; Gravenhorst v. Zimmerman, 236 NY 22, 38-39 [Ct App 1923]). In evaluating a motion for summary judgment, a court is not to engage in determining credibility of an issue, but rather whether there exists an issue that requires determination of credibility (S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 NY2d 338 [1974]). Moreover, where the court finds that there is even one material relevant issue that requires determination of credibility, in and of itself is sufficient for denial of motion (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395, 404-05 [1957]). When reviewing the motion, the papers must be strictly scrutinized in the light most favorable to the opposing party (Pearson v. Dix McBride, 63 AD3d 895, 883 [2nd Dept 2009]; Robinson v. Strong Mem. Hosp., 98 AD2d 976 [4th Dept 1983]). Movant has the initial burden of coming forward with admissible evidence to support the finding of a prima facie entitlement as to warrant the court’s directing judgment in movant’s favor as a matter of law notwithstanding sufficiency of opposition or lack thereof (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 [Ct App 1985]). Once movant’s burden has been met, burden to rebut then shifts to the opposition to demonstrate, by admissible evidence, the existence of a material factual issue in dispute requiring a fact-finder’s determination at trial (see Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 1067 [Ct App 1979]; see also Alvarez v. Prospect Hosp., 68 NY2d 320 [Ct App 1986]; Zuckerman v. Citv of New York, 49 NY2d 557 [Ct App1980]). Opposition papers relying upon general overbroad allegations or mere conclusory immaterial non-relevant facts or law, unsupported by competent admissible evidence sufficient to require a trial will fail to satisfy burden to defeat summary judgment (Fileccia v. Massapequa Gen. Hosp., supra; Bustamonte v. Koval, 98 AD2d 739 [2d Dept 1983]; Pan v. Coburn, 95 AD2d 670 [1st Dept 1983]; Himber v. Pfizer Labs., 82 AD2d 776 [1st Dept 1981]; Baldwin v. Gretz, 65 AD2d 876 [3d Dept 1978]; Century Ctr. Ltd. v. Davis, 100 AD2d 564 [2d Dept 1984]). Where the court finds but a scintilla of doubt as to the existence of a triable issue of fact in dispute, summary judgment must be denied (Moskowitz v. Garlock, 23 AD2d 943 [3d Dept 1965]). Where movant successfully makes a prima facie showing of entitlement to judgment as a matter of law that there is not any material triable issue of fact, then the burden to rebut shifts to opposing defendant to “produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he [or she] rests his [or her] claim or must demonstrate an acceptable excuse” or failure to so do (Zuckerman v. City of New York, 49 NY2d 557, 560 [Ct App 1980]; Pride Acquisitions LLC v. Benson, 2012 NY Misc LEXIS 5839, 2012 NY Slip Op 33065 [U] [Sup Ct 2012]). “In making this determination, the evidence must be viewed in the light most favorable to the non-moving party” (id. at 2; Pearson v. Dix McBride, 63 AD3d 895, 883 NYS 2d 53, 53 [2d 2009]) and inferences that may be drawn therefrom must be accepted as true (Dykeman v. Heht, 52 AD3d 767, 769, 861 NYS 2d 732 [2d Dept 2008]). However, non-movant cannot rely on conclusory vague contrived protestations not relevant nor material to overcome the burden to defeat judgement as a matter of law. Where non-movant provides such admissible proof as to the existence of any material issue of fact that lends itself to doubt, equivocation or credibility then this issue of fact must be determined by the fact-finder either by judge or jury precluding summary judgment (Moskowitz v. Garlock, 23 AD2d 943, 259 NYS 2d 1003 [3d Dept 1965]). In the instant matter, Petitioner’s assignor as predecessor-in-interest entered a commercial lease, which expired, rendering Respondent a month to month tenant.8 Here the Motion for Summary Judgment in chief was brought by Respondent to dismiss Holdover proceeding for failure to state a cause of action, triggering Petitioner to cross move for summary judgment of possession and in opposition to Respondent’s motion. Therefore, before the court are competing motions for summary judgment by opposing parties. However, a decision on the Respondent’s motion may be dispositive of cross-motion. Accordingly, the foremost and singular issue at hand based upon Respondent’s Motion for Summary Judgment to dismiss is whether there presents any material triable issue of fact as to whether Petitioner failed to adequately describe leasehold premises sought to be recovered in the Petition for Holdover pursuant to RPAPL §741(3). In any Summary proceeding to recover possession of real property, “petition shall: 3. Describe the premises from which removal is sought” (RPAPL §741 [3]). It is well established law statutorily and in precedential case law that the textual description in summary proceedings to recover leasehold premises cannot be vague, ambiguous nor inaccurate. Rather, petition must contain sufficiently accurate, adequate, detailed description of the leasehold premises to ensure a marshal executing a warrant to be able to locate unequivocally the precise leasehold premises that is the subject of that eviction, without additional information outside of the four corners of petition (Clarke v. Wallace Oil Co., 284 AD2d 492, 727 NYS 2d 139 [2d Dep't 2001]; US Airways, Inc. v. Everything Yogurt Brands, Inc., 18 Misc 3d 136 [A], 859 NYS 2d 899, 2008 NY Slip Op 50279 [U] [App Term 2008]; Sixth Street Community Center, Inc. v. Episcopal Social Services, 19 Misc 3d 1143 [A], 867 NYS 2d 20, 2008 NY Slip Op 51151 [U] [Civ Ct, NY County 2008]; Empire State Building Co., LLC v. Progressive Catering Services, Inc., 2 Misc 3d 545, 547, 769 NYS 2d 691 [Civ Ct, NY County 2003]; Vornado Two Penn Property, LLC v. XLPC, Corp., 18 Misc 3d 1119 [A], 856 NYS 2d 503, 2008 NY Slip Op 50138 [U] [Civ Ct, NY County 2008]). A mere address in and of itself without more specificity may be deemed an insufficient and violative description (Sixth Street Community Center, Inc. v. Episcopal Social Services, 19 Misc 3d 1143 [A], 867 NYS 2d 20, 2008 NY Slip Op 51151 [U] [Civ Ct, NY County 2008]). So much so, even where description is verbatim identical to that contained within lease, courts have nevertheless found description violative of RPAPL §741 (3) (see id.). Therefore, the analysis is less about the actual wording of description but rather more so as to the words in functional relation to the physical building structure containing the leasehold premises. Such that, leasehold premises located on the first floor bearing description in a petition of, all rooms in building known as 123 Maiden Lane, may be found adequate where a one-story building structure. However, that exact very same wording may quite likely be found violative where a three-story building structure (see id.). The latter example is rife with confusion and error by the marshal executing warrant of eviction against mistaken unrelated tenant from mistaken unrelated leasehold premises. Courts have consistently held that a violative description “affects the very essence of the proceeding” (Papacostopulos v. Morrelli, 122 Misc 2d 938, 939, 472 NYS 2d 284 [Civ Ct, Kings County 1984], quoting Rasch, NY Landlord & Tenant Summary Proceeding §1257, at 64). Although it has been held where the description is found violative, it deprives the court of subject matter jurisdiction as reasoned in Appellate Term 1st Department (MSG Pomp Corp. v. Jane Doe, 185 AD2d 798, 586 NYS 2d 965, 1992 NY App Div LEXIS 10146); Appellate Term 2nd Department has rather held that a petitioner’s failure to adequately describe the leasehold premises does not deprive the court of subject matter jurisdiction (see U.S. Airways, Inc. v. Everything Yogurt Brands, Inc., 18 Misc 3d 13 6[A], 859 NYS 2d 899, 2008 NY Slip Op 50279 [U] [App Term, 2d and 11th Jud Dists, 2008]; Lacks v. Lacks, 41 NY2d 71, 75, 359 NE2d 384, 390 NYS 2d 875 [1976]; Villas of Forest Hills v. Lumberger, 128 AD2d 701, 702, 513 NYS 2d 116 [1987]; Lanz v. Lifrieri, 104 AD2d 400, 401, 478 NYS 2d 722 [1984]; Birchwood Towers No. 2 Assoc. v. Schwartz, 98 AD2d 699, 469 NYS 2d 94 [1983]; 17th Holding LLC v. Rivera, 195 Misc 2d 531, 532, 758 NYS 2d 758 [App Term, 2d & 11th Jud Dists 2002]). Therefore, where proper service effectuated on juridical or natural respondent, the court shall maintain its subject matter jurisdiction pursuant to RPAPL Article 7 even if violative description. However, in exercise of the court’s subject matter jurisdiction, it nevertheless may dismiss the summary proceeding based upon the violative description (see City of New York v. Mortel, 161 Misc 2d 681, 616 NYS 2d 683 [App Term, 2d & 11th Jud Dists 1994], affg 156 Misc 2d 305, 592 NYS 2d 912 [1992]; Marrit Investors, Ltd. v. Consolidated Marine Corp., NYLJ, Oct. 12, 1994 [App Term, 9th & 10th Jud Dists]; Elul Realty Corp. v. Java New York Ltd., 12 Misc 3d 336, 816 N.Y.S.2d 885 [2006], and cases cited therein). The 2001 expired lease duly executed by Respondent describes the leasehold as: “First Floor North area designated 4100 1st Avenue, Brooklyn New York, totaling 12,000 Square Feet.” Whereas, the unexecuted 2010 lease introduced by Respondent in its moving papers and opposed by Petitioner as unenforceable, describes the leasehold as: “That certain portion of space containing approximately 12,000 rentable square feet (“Tenant’s Floor Area”), in Building B (the “Building”) commonly referred to as “4100-4116 1st Avenue” or “Building B”, which Building is located at 4100 1st Avenue, within Bush Terminal Industrial Complex in Brooklyn, County of Kings, City of New York, as shown on the diagram attached hereto and made part of this Lease as Exhibit A.” However, Respondent failed to provide the diagram referenced as attached as “Exhibit A” to the unexecuted 2010 lease. The Petition describes leasehold as: “All rooms, Premises: Bush Terminal Industrial Complex 4100 1st Avenue, First Floor, Brooklyn, New York, County of Kings.” Respondent relies on the unexecuted 2010 lease for the contention that the description of the premises is inaccurate since it fails to include the language “Building B, Unit 1 North” and the leasehold does not occupy “All rooms [on] First Floor”. In opposition, Petitioner contends that description is statutorily accurate; Respondent is the only tenant occupying the First Floor; Respondent has its business sign affixed unto the entrance door of the leasehold; there is no risk of eviction in error of any other entity as there are no other tenants occupying First Floor; the description is adequate for the City Marshall to locate the leasehold without additional information; the description as First Floor as opposed to Unit 1 North did not materially mislead or confuse Respondent or hinder Respondent in its preparation of its defenses; and unexecuted 2010 lease is unenforceable. Petitioner’s photo9 showing a door with a sign bearing Respondent’s name is unpersuasive in bolstering its arguments. Whereas, Respondent fails to provide any photos of leasehold premises. Neither does Respondent nor Petitioner provide diagrams, floor plans, layouts or architectural drawings in furtherance of their respective arguments. In a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7) the leasehold premises’ description is to be liberally construed and non-movant be accorded the benefit of every possible inference in the moving papers. Courts have therefore decided based upon the papers whether the description was or was not adequate, accurate and in compliance with RPAPL 741(3) as a matter of law.10 Not so here. Rather, in this instant matter, there is no such unequivocal presentation within the moving papers in either direction, presenting a material triable issue of fact, to wit, whether the description in the Petition statutorily complies with RPAPL §741 (3). Thus, where Trial on this limited single issue is decided in favor of Respondent, results in failure of Summary Holdover Proceeding to maintain its cause of action pursuant to CPLR 3211 (a) (7) and dismissal without prejudice pursuant to CPLR 3212 (c), rendering Petitioner’s Cross Motion moot11. However, where it is decided at Trial against Respondent, Petitioner’s Cross Motion for Summary Judgment may be granted with concurrent hearing on costs, attorney fees, Use and Occupancy. For the foregoing reasons, Respondent’s Motion for Summary Judgment to Dismiss is Denied; Petitioner’s Cross Motion for Summary Judgment held as pending the outcome of the Limited Single-Issue Trial scheduled for February 25, 2020, 9:30 AM, Part 61, Courtroom 1302. This constitutes the opinion, decision, and order of This Honorable Court. Dated: February 6, 2020
