The following papers, numbered 1 to 3, read on this motion noticed on June 17, 2021, and duly submitted as nos. 2 and 3 on the Motion Calendar of January 26, 2022. PAPERS NUMBERED Notice of Motion — Order to Show Cause — Exhibits and Affidavits Annexed 1 Answering Affidavit and Exhibits Replying Affidavit and Exhibits 2 Notice of Cross-Motion — Affidavits and Exhibits 3 Pleadings — Exhibit Stipulation(s) — Referee’s Report — Minutes Filed Papers — Order of Reference Memorandum of Law Petitioner, Badara Corp. (“Petitioner”), filed the instant motion to strike affirmative defenses and a counterclaim asserted in the answer of Respondent, AAIY, Inc., dba SOVA (“Respondent”), and also seeks summary judgment on the ground that, since April 2020, Respondent has failed to pay rent for the commercial premises it presently occupies in violation of the terms of the lease between the parties. Respondent opposes citing as grounds impossibility and frustration of performance under the lease resulting from the government mandated shutdown of non-essential businesses at the commencement of the COVID-19 pandemic in March 2020 and thereafter. Alternatively, by way of cross-motion, Respondent seeks dismissal of this action claiming that it was commenced in contravention of existing law as amended by executive orders issued by then New York State Governor, Andrew M. Cuomo (“Gov. Cuomo”). Because this Court finds that this action was indeed commenced in violation of existing executive orders prohibiting the initiation of actions for the eviction commercial tenants for non-payment of rent, Petitioner’s motion for summary judgment is denied and Respondent’s cross-motion is granted. The Petition is dismissed. A. Factual Background. The record before the Court establishes that, in November 2019, Respondent leased 751 Drake Avenue, Bronx, New York (the “Premises”) from Petitioner to operate a food catering business. The undisputed representation of Petitioner is that Respondent took possession of the Premises in January 2020 (See Affidavit of Arthur Kirsch at 6, Petitioner’s Motion for Summary Judgment). It is also undisputed that Respondent has failed to remit rent due under the lease since April 2020, leading to the commencement of these proceedings to evict Respondent — a commercial tenant — for non-payment of rent. Critical here, these proceedings commenced with the filing of a Notice of Petition and Petition on November 25, 2020. It is against this backdrop that the most salient question before the Court emerges: whether the petition was properly filed given the state of the law on summary eviction proceedings at the time. B. COVID-19, Resulting Executive Orders and This Action. On March 7, 2020, in response to the advancing threat posed by the widespread transmission of COVID-19, Gov. Cuomo exercised executive powers afforded him under Sections 28 and 29 of Article 2-B of the Executive Law and implemented portions of the State Comprehensive Emergency Management Plan. That act permitted him to declare a state of emergency, which further permitted him to bypass various procedures normally required by law to the extent that compliance with same would prevent, hinder or delay actions necessary to cope with the impending disaster. His initial Executive Order declaring a disaster within the State — EO 202 — was followed by other such orders modifying various areas of law as was necessary to meet the aim of responding efficiently to the COVID-19 emergency. Significant here, on May 7, 2020, Gov. Cuomo issued EO 202.28 which, in relevant part, declared: There shall be no initiation of a proceeding or enforcement of either an eviction of any residential or commercial tenant, for non-payment of rent or a foreclosure of any residential or commercial mortgage, for non-payment of such mortgage, owned or rented by someone that is eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to COVID-19 for a period of sixty days beginning on June 20, 2020. EO 202.28. Hence, by a plain reading of the Executive Order, a proceeding such as the instant one could not have been commenced or initiated within 60 days of June 20, 2020. This proscription against initiation of commercial landlord-tenant proceedings for non-payment of rent would have expired on August 19, 2020, save for the issuance of Executive Order 202.48 on July 6, 2020, which Order extended the prohibition against the initiation of any landlord-tenant proceeding for non-payment of rent as follows: The directive contained in Executive Order 202.28, as extended, that prohibited initiation of a proceeding or enforcement of either an eviction of any residential or commercial tenant, for non-payment of rent or a foreclosure of any residential or commercial mortgage, for nonpayment of such mortgage, is continued only insofar as it applies to a commercial tenant or commercial mortgagor, as it has been superseded by legislation for a residential tenant, and residential mortgagor, in Chapters 112, 126, and 127 of the Laws of 2020[.] In this instance, the proscription against the initiation of an action such as the instant one was extended through August 5, 2020. EO 202.48. However, on September 18, 2020, Gov. Cuomo issued Executive Order 202.64, which, as respects the initiation of commercial landlord-tenant actions for nonpayment of rent, modified the preceding Executive Orders as follows: The directive contained in Executive Order 202.48, which modified the directive in Executive Order 202.28 that prohibited the initiation of a proceeding or enforcement of an eviction of any commercial tenant for nonpayment of rent or a foreclosure of any commercial mortgage for nonpayment of such mortgage is continued through October 20, 2020. EO 202.64. At this point, barring any further extensions of the proscription against initiation of a commercial nonpayment eviction proceeding such as the one at bar, Petitioner’s commencement of this action on November 25, 2020 would have been proper. However, on October 20, 2020, Executive Order 202.70 issued stating, in relevant part, as follows: The directive contained in Executive Order 202.64, which modified the directive in Executive Order 202.28 that relates to eviction of any commercial tenant for nonpayment of rent or a foreclosure of any commercial mortgage for nonpayment of such mortgage is continued through January 1, 2021. EO 202.70. Significantly, the language of EO 202.70 makes clear that the applicable directive of EO 202.64 against the initiation of any proceeding for eviction of a commercial tenant for nonpayment of rent, which has its roots in the relevant directive of EO 202.28, had been extended through January 1, 2021. In other words, the prohibition of the initiation of any proceeding for eviction of a commercial tenant for nonpayment of rent remained, as repeatedly extended, in force until January 1, 2021. As this case was commenced on November 25, 2020, it was initiated in contravention of the standing Executive Order prohibiting the commencement of such proceedings. Petitioner, however, invites the Court to interpret EO 202.70 as effectively eliminating the executive bar against commencement of non-payment commercial landlord-tenant actions as of October 21, 2020 by virtue of the Order’s having failed to include the word “initiation” within the directive (Petitioner’s Reply Affirmation in Support and in Opposition to Cross-Motion at 14). The argument is without merit. The very purpose of incorporating by reference the applicable directives set forth in both EO 202.64 and EO 202.28 was to obviate the need to rewrite their expressed language. To be sure, with respect to commercial landlord-tenant nonpayment proceedings, this Court finds that the cited section of EO 202.70 enacts no substantive modification of the prior Executive Orders save for extending the enforcement date of the specified directive to January 1 2021. Accordingly, Petitioner commenced these proceedings in contravention of existing Executive Orders in force at the time, and therefore the Petition must be dismissed. In view of the Court’s dismissal of the petition, there is no need to address the remaining arguments in either Petitioner’s affirmative motion or Respondent’s cross-motion. It is, therefore, hereby, ORDERED, that Petitioner’s motion to strike and for summary judgment is hereby DENIED, and it is further, ORDERED, that Respondent’s cross-motion for summary judgment is hereby GRANTED, and the instant Petition is DISMISSED; and it is further, ORDERED, that Respondent serve upon Petitioner a copy of this Order with notice of entry within 30 days hereof. This constitutes this Court’s Decision and Order. Dated: February 10, 2022
