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Dino Realty Corp. v. Beety Market Corp.

Conflict of Facts Prevents Court from Dismissing Landlord-Tenant Action

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Recitation, as required by CPLR §2219(a), of the papers considered in the review of this Motion Papers Numbered Notice of Motion and Affidavits Annexed 1 Order to Show Cause Answering Affidavits 2 Replying Affidavits 3 Exhibits Supplemental Affidavit DECISION/ORDER Upon the foregoing papers, Respondent’s motion for a dismissal, is decided as follows: Petitioner commenced a non-payment action. Respondent seeks to dismiss on documentary evidence. The affidavits of the Petitioner and Respondent portray a different set of facts. There is a dispute as to which lease applies. Respondent claims there was a replacement lease. Petitioner disputes the second lease and denies his execution of the second lease. Respondent produces deposited rent checks. Petitioner says these checks were applied to earlier missed payments. Respondent produces bank records which indicate that payments were “Zelled” to Petitioner’s Chase Bank account. Petitioner states that the Chase account was not an active account, but even if the deposits to Chase were considered, there remains a substantial amount of rent arrears. The conflict of facts prevent the Court from dismissing based on documentary evidence. The Court also denies Respondent’s other arguments. Respondent’s motion is denied. The Respondent will serve and file an answer by July 17, 2024. The Part 52 Clerk will notify the parties of this order, and schedule an appearance date for a pre-trial conference. This constitutes the decision and order of the Court. Dated: July 1, 2024

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