Decision and Order I. Recitation of the papers considered in the review of this Motion as required by CPLR 2219 (a) Upon reading Petitioner’s Motion for Summary Judgment (“Motion”), Respondent’s Affidavit in Opposition (“Opposition”), and Petitioner’s Reply (“Reply”)1, together with all supporting documents, Petitioner’s Motion is decided as follows. II. Procedural History Petitioner commenced the instant action to collect $137,944.97 in overdue rent, plus fees, interest, costs, and disbursements by filing a Petition on May 11, 2022. Respondent interposed an Answer on June 11, 2022. On August 21, 2023, Petitioner filed the instant Motion. Respondent Opposed and Petitioner replied. III. Discussion “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 NY2d 320, 322 [1986] [internal citations omitted]). “Upon establishing a prima facie case, the burden then shifts to the party opposing the motion to demonstrate the existence of a material issue of fact” (Cromer v. Rosenzweig Ins. Agency Inc., 156 AD3d 1192, 1192 [3d Dept 2017] [internal citations omitted]). Petitioner here established its prima facie case by providing Respondent’s rent ledger (Motion, Exhibit F), the lease agreement (“Lease”) (Motion, Exhibit B), and the deed (Motion, Exhibit A). The burden is then shifted to Respondent to raise a triable issue of fact. Frustration of Purpose and Impossibility Respondent admitted awareness of New York case law where tenants’ affirmative defenses based on impossibility or frustration of purpose due to COVID-19 closures have been stricken (see Gap Inc. v. Ponte Gadea NY LLC, 524 F Supp 3d 224, 227 [SDNY 2021]). Nevertheless, Respondent asserted these defenses on the grounds that Defendant Live Well Company LLC, being a gym company, was allegedly more completely deprived of the intended benefits than the tenants in the aforementioned case laws. However, the Supreme Court of the State of New York has previously found affirmative defenses based on impossibility and frustration of purpose, asserted by a tenant running a gym who had likewise suffered from Governor Cuomo’s Executive Order 202.3, to be unavailing (see Cab Bedford LLC v. Equinox Bedford Ave, Inc., 2020 NY Slip Op 34296[U], *1 [Sup Ct, NY County 2020]). Chief among the concerns in Cab Bedford, shared by this Court, is that to grant Respondent relief on the grounds of impossibility and frustration of purpose is to grant the possibility that every New York gym, center, theatre and casino had actually need not pay rent from March to September 2020. Lease Amendments and Credit based on Email Communications Respondent claimed triable issues of fact due to alleged agreements with Petitioner to reduce rent and give credit. In support, Respondent produced three emails — two that were unilateral offers of reduced rent and/or credit from the Petitioner’s alleged officer (Opposition, Exhibit C & D) and one that was a confirmation email from Respondent regarding allegedly agreed rent amounts for May, June and July 2021 (Opposition, Exhibit E). Petitioner’s only defense against these allegations are that “Respondent, however, failed to provide this court with any writing signed by the parties to that effect” (Reply 3). The Lease (Motion, Exhibit B) itself demanded that any modifications to the Lease be “in writing and signed by the party against whom enforcement of the change…is sought”. Emails where the sending party’s name is typed “can constitute a writing for purposes of the statute of frauds” (see Newmark & Co. Real Estate Inc. v. 2615 E. 17 Realty LLC, 80 AD3d 476, 476 [1st Dept 2011]; General Obligations Law Section 5-701[b][4]). Additionally, for electronic communication, “any symbol executed or adopted by a party with the present intention to authenticate a writing shall constitute a signing” (General Obligations Law Section 5-701 [b][4]). Exhibit E of Respondent’s Opposition showed Respondent referred to an alleged agreement (“Agreement”) stating that the rent paid between May and July 2021 should be $6,000 a month. Officer Billet of Petitioner responded with “Confirmed”, which the Court finds to constitute a signature. The inconsistency between the Agreement and the rent ledger charging rent at the higher “standard” rate of $10,904.13, has raised a triable issue of fact on damages. Other Unopposed Allegations by Respondent Multiple issues of fact, relating to the total damages allegedly suffered by Petitioner, are raised in Respondent’s Opposition but go unacknowledged in Petitioner’s reply. These allegations are: 1.) Tenant was charged late fees from May to July 2021 despite being timely. 2.) Tenant was charged usurious late fees that also exceeded the rate provided by the lease repeatedly. 3.) Tenant was charged for an uninstalled Lobby Light. 4.) Tenant was charged unjustifiably for expenses relating to a stair elevator; the stair elevator had previously resulted in a separate legal dispute between Respondent and Plaintiff; the judge in the case rejected motions for summary judgment on both sides on the ground of factual issues. These allegations remain to be triable issues of fact with regards to damages. Conclusion “A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact. Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution” (see Giuffrida v. Citibank Corp., 100 NY2d 72 [2003]). There is no question that Petitioner has established its prima facie claim to some damages. In fact, Respondent, in its Opposition, even admitted to the existence of “legitimate charges” on the ledger that it was willing to pay. However, there are multiple charges on the ledger where a triable issue of fact exists, and Petitioner’s failure to respond to them sufficiently — and in some cases, at all — warrants a trial. IV. Order Accordingly, it is ORDERED that Petitioner’s Motion for summary judgment is denied and this matter shall proceed to trial. This constitutes the DECISION and ORDER of this Court. Dated: July 9, 2024
