RECITATION, AS REQUIRED BY CPLR 2219 (A), OF THE PAPERS CONSIDERED ON THE REVIEW OF THIS MOTION TO DISMISS. PAPERS NUMBERED NOTICE OF MOTION AND ANNEXED AFFIDAVITS 1 AFFIRMATION IN OPPOSITION 2 AFFIRMATION IN REPLY 3 UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER ON THIS MOTION IS AS FOLLOWS: DECISION/ORDER Respondent, Moloko Bar LLC (Moloko), moved this Court for an order pursuant to Civil Practice Law and Rules §§3211 (a) (1), (7), and (8) to dismiss the petition, arguing (1) Petitioner failed to state a claim upon which relief can be granted since Petitioner filed a holdover proceeding and not the requisite non-payment proceeding as Respondent is a tenant in possession, (2) Petitioner failed to serve Respondent, and (3) to dismiss the action based upon documentary evidence, namely a lease between the parties. PROCEDURAL HISTORY Petitioner commenced a holdover proceeding on September 19, 2019, alleging the lease expired between the parties on August 31, 2018, seeking a final judgment of eviction awarding possession of the premises to the Petitioner along with unpaid use and occupancy for the periods February August 2017 at the rate of $2,758.34 per month, September 2017 August 2018 at the rate of $2,841.09 per month, and at the expired lease holdover rate of $5,682.18 per month retroactive to September 2018, additional rents from various paragraphs in the lease totaling $2,035.08, plus interest. The Notice of Petition and Petition were served upon “John Doe” at the premises on September 17, 2019. Respondent served its answer with counterclaims on September 27, 2019 and Petitioner filed its answer to Respondent’s counterclaims on or about November 27, 2019. THE MOTION PAPERS Respondent, in support of its motion to dismiss the petition, alleges there is documentary evidence showing a lease was in effect when this proceeding commenced, and that service of the Petition and Notice of Petition was defective. Respondent included an executed lease for the period September 1, 2013 August 31, 2018 and references an “Option Period” in Paragraph 40 of the lease running from September 1, 2018 to August 31, 2023, and a letter requesting exercise of the option. Petitioner, in opposition, argues Respondent is a holdover tenant properly served in the action with the prior lease expiring on August 31, 2018 and Respondent has never been offered or executed any extension of the lease. LAW On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Shah v. Exxis, Inc., 138 AD3d 970, 971, 31 NYS3d 512 [2d Dept 2016]; see also Goshen v. Mutual Life Ins. Co. of New York, 98 NY2d 314, 746 NYS2d 858 [2002]; Leon v. Martinez, 84 NY2d 83, 614 NYS2d 972 [2d Dept 1994]). Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (Rabos v. R & R Bagels & Bakery, Inc., 100 AD3d 849, 851-852, 955 NYS2d 109 [2d Dept 2012]); see also Guggenheimer v. Ginzburg, 43 NY2d 268, 274-275, 401 NYS2d 182 [1st Dept 1977]). ANALYSIS In affording Petitioner’s pleading a liberal construction and taking the allegations in the petition as true without any determination as to the truth of the allegations, this Court finds Petitioner has stated a cause of action upon which relief can be granted, “according to [Petitioner] the benefit of every possible favorable inference, and determining only whether the facts as alleged fit within any cognizable legal theory” Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 270, 780 NYS2d 593 [1st Dept 2004]). This Court has further determined Respondent has failed to provide any documentary evidence to substantiate a lease in existence as alleged. Respondent’s inclusion of an expired lease referencing an “option period” without execution of any option or renewed lease does not qualify as “documentary evidence” within the meaning of CPLR 3211(a) (1) (Sunset Café, Inc. v. Mett’s Surf & Sports Corp., 103 AD3d 707, 709, 959 NYS2d 700 [2d Dept 2013]). “In order for evidence to qualify as ‘documentary,’ it must be unambiguous, authentic, and undeniable” (Granada Condominium III Assn. v. Palomino, 78 AD3d 996, 996-997, 913 NYS2d 668 [2d Dept 2010]). Respondent has not submitted any evidentiary material to refute Petitioner’s facts stated or to support converting this motion to dismiss to one for summary judgment (Guggenheimer v. Ginzburg, supra). Affidavits, emails, and letters are not considered documentary evidence “within the intendment of CPLR 3211(a)(1)” (Phoenix Grantor Trust v. Exclusive Hospitality, LLC, 172 AD2d 923, 923, 101 NYS3d 175 [2d Dept 2019], quoting Nero v. Fiore, 165 AD3d 823, 826, 86 NYS3d 96 [2d Dept 2018]). Dismissal is warranted only if the documentary evidence submitted “utterly refutes plaintiff’s factual allegations” (Goshen v. Mutual Life Ins. Co. of New York, 98 NY2d at 326), and “conclusively establishes a defense to the asserted claims as a matter of law” (Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc. 10 AD3d at 270-271). Finally, Respondent has not sufficiently refuted service of the Petition and Notice of Petition to warrant this Court to hold a traverse hearing. Accordingly, IT IS ORDERED, Respondent’s motion is denied in its entirety. Dated: March 6, 2020
