Recitation as Required by CPLR §2219(a): The following papers were read on this Motion for Summary Judgment: Papers Numbered Petitioner’s Notice of Motion, Affirmation in Support, Affidavits, and Exhibits 1 Respondent’s Affirmation in Opposition 2 Petitioner’s Reply and Exhibits 3 DECISION/ORDER Upon the foregoing cited papers, the Decision/Order in this motion is as follows: Petitioner landlord, Metropolitan Times Square Associates, LLC, d/b/a Times Square commenced this action on or about July 25, 2022, by filing a Notice of Petition and Petition against Respondent tenant, Laurel Lee Restaurant Inc., d/b/a Cafe Un Deux Trois. Respondent interposed an answer on August 8, 2022. Petitioner now moves for a summary judgment seeking: (1) a judgment of possession; (2) to amend the pleadings to conform with the evidence and include all amounts owed; (3) a money judgment in the sum of $1,825,647.71 for arrears owed through September 1, 2022; (4) to dismiss Respondent’s affirmative defenses; (5) reasonable legal fees and costs; and (6) further relief as the court may deem just and proper under the circumstances. Summary of Arguments Petitioner entered into a lease agreement with Respondent for the subject premises in 1982. The lease has been extended several times over the years through 2013. Under the lease, Respondent agreed to pay base rent and additional rent including real estate taxes and water charges. Respondent has not paid any rent since June 2020. Petitioner served a Fourteen Day Notice demand for rent dated June 8, 2022. As of June 27, 2022, Respondent has accrued rental arrears in the amount of $1,686,915.28 and $4550.00 in miscellaneous charges for window/boarding during COVID-19. However, Petitioner seeks to amend the Petition to include rental arrears as of September 2022 totaling $1,825,647.71. In support of this claim, Petitioner submits an affidavit from Jenna B. Arin, the Vice President of Operations for Petitioner, and a person with personal knowledge of the facts and circumstances; proof of ownership documents; the original lease agreement and subsequent modifications entered by the parties; a stipulation of settlement signed October 4, 2013; the ledger and additional correspondence/bills between the parties. In opposition, Respondent argues that Petitioner failed to adhere to conditions precedent in the lease agreement, which would entitle it to the alleged amount owed for additional rent. Specifically, pursuant to the lease terms, Respondent’s obligation to pay real estate taxes and water charges are not triggered until Petitioner provides Respondent with a bill. However, Petitioner failed to provide any bills relating to these charges and therefore they should not be obligated to pay them. Additionally, Respondent argues that water bills accrued during the COVID-19 Pandemic, during which time Respondent business was closed and therefore they did not incur water charges as alleged. Based on the above, questions of fact exist which require a denial of Petitioner’s motion. In reply, Petitioner argues that Respondent’s opposition concedes the base rental arrears of $1,635,697.74 are owed. The only opposition Respondent asserts is to the additional rent charges for real estate taxes, water usage and plywood installation, which totals $189,949.97. Petitioner asserts that pursuant to the lease terms, Petitioner is to provide the tax data with “the first bill”, information that can also be assessed directly by Respondent on its own and that the lease terms do not require Petitioner to provide the meter reading or water usage report in order to collect payment for water charges. Petitioner complied with the lease terms by providing a monthly bill with itemized water charges. In addition, the parties had a discussion concerning the increased water charges during COVID-19, believed to be caused by a broken solenoid control valve on Respondent’s equipment, which Petitioner urged Respondent to resolve to avoid incurring additional charges. Lastly Petitioner notes that the parties have been in business with one another for numerous years and they have regularly discussed billing matters. Their prior course of dealings is probative demonstrating that Respondent understands the clauses within the lease agreement proving no merit to Respondent’s opposition. In the alternative, if the court finds that there are triable issues of fact, then this matter should proceed only concerning the real estate taxes and water charges. Summary Judgment It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1986). The burden is on the moving party to make a prima facie showing of entitlement to summary judgment as a matter of law. Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980); Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 1067, 390 N.E.2d 298, 416 N.Y.S.2d 790 (1979). A failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063, 619 N.E.2d 400, 601 N.Y.S.2d 463 (1993). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact. Alvarez, 68 N. Y.2d at 324; Zuckerman, 49 N.Y.2d at 562. The papers submitted in support of and in opposition to a summary judgment motion are examined in the light most favorable to the party opposing the motion. Martin v. Briggs, 235 A.D.2d 192, 196, 663 N.Y.S.2d 184 (1st Dept 1997). Mere conclusions, unsubstantiated allegations, or expressions of hope are insufficient to defeat a summary judgment motion. Zuckerman, 49 N.Y.2d at 562. Here, the court finds that Petitioner has demonstrated its prima facie entitlement to summary judgment on the issue of past base rent owed in the amount of $1,635,697.74. Respondent’s opposition fails to establish any triable issues of fact, in as much as this issue was not addressed in Respondent’s opposition, thereby conceding this point. As to the issue of outstanding real estate taxes and water charges, the court finds Respondent’s arguments unavailing. As defined in section 224 of the Restatement (Second) of Contracts, a condition precedent is “an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due.” See Res tat 2d of Contracts, §224. This is usually evidenced by terms including by not limited to “on condition that,” “provided that” and “if’ are often used for this purpose. “An intention to make a duty conditional may be manifested by the general nature of an agreement, as well as by specific language.” See Res tat 2d of Contracts, §226. Nothing in the lease agreement between these parties neither states nor indicates that the additional rent is waived if Respondent does not or has a delay in providing it to Respondent. The court notes the extensive history between the Respondent and Petitioner (and Petitioner’s predecessors) and their compliance with terms of the lease concerning rent and additional rent spanning forty years. Until COVID-19, there does not appear to have been any conflict with the fundamental terms of the lease and each party’s obligation under said lease. It is clear and unambiguous that Respondent has since 1982 been responsible for the real estate taxes and the water bill pursuant to the terms of the lease. Finally, in reading Respondent’s opposition, it would appear that Respondent was not made aware of the increased water bill and unusually high reported water usage during the time the restaurant was closed for business. This very well could have raised a genuine issue of fact as to whether Respondent owes amount alleged for water usage or at all. However, in reply, Petitioner submits credible evidence that Respondent was made aware of the unusual water activity as reflected in the bills on more than one occasion and was provided suggestions that the cause was likely due to Respondent’s equipment. Yet Respondent failed to take any steps to mitigate or remedy the water issue. Based on the foregoing, Petitioner’s motion for summary judgment is granted. Amendment of the Pleadings Petitioner seeks to amend the petition to include all rent owed and rental arrears accrued through September 1, 2022, totaling $1,825,647.71. “In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit.” Am. Sci. Lighting Corp. v. Hamilton Plaza Assocs., 144 A.D.3d 614, 40 N.Y.S.3d 485 (2016). “It is well settled that the obligation of a commercial tenant to pay rent is not suspended if the tenant remains in possession of the leased premises.” Crystal Run Newco, LLC v. United Pet Supply, Inc., 70 A.D.3d 1418, 896 N.Y.S.2d 271 (2010). The court finds that there would be no prejudice or surprise to Respondent if leave to amend is granted. Therefore, Petitioner’s motion to amend is granted. Dismissal of Affirmative Defenses As the court has granted summary judgment to Petitioner, Petitioner’s application to dismiss the affirmative defenses is rendered moot. Attorney’s Fees Petitioner argues that the lease provides for reimbursement of attorney’s fees wherein Petitioner incurs expenses in connection with a default by the tenant. Courts have long held that lease provisions for recovery of attorney’s fees are valid and enforceable, where a landlord prevails in a summary proceeding brought because of a tenant’s breach of the lease. Cier Indus. Co. v. Hessen, 136 A.D.2d 145, 526 N.Y.S.2d 77 (1st Dept.1988), see also Stribula v. Tisdale, 21 Misc. 3d 137(A), 873 N.Y.S.2d 515 (App. Term, 1st Dept. 2008). In the instant matter, Section 19.4 of the lease specifically provides for recovery of legal fees as a remedy for Respondent’s default. Petitioner may submit an affirmation within ten days for consideration of reasonable attorney’s fees. Conclusion It is hereby ORDERED that Petitioner’s motion for summary judgment is granted as follows: Petitioner is granted possession of the subject premises. Petitioner’s motion to amend the petition is granted to encompass all rent owed and rental arrears accrued through September 1, 2022. Petitioner is granted a money judgment in the amount of $1,825,647.71. Petitioner’s motion for attorney’s fees is stayed until February 16, 2023, upon receipt of affirmation of counsel. Thereafter a decision on attorney’s fees will be rendered. ORDERED that Petitioner shall serve and file a copy of Notice of Entry of this Decision and upon Respondent within 30 days of the date of this Order. This constitutes the Decision and Order of the Court. Dated: January 5, 2023
