Tu Casa En Quisqueya, Inc. v. Nieves

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Tu Casa En Quisqueya, Inc. v Nieves 2024 NY Slip Op 33675(U) October 7, 2024 Supreme Court, Kings County Docket Number: Index No. 537685/22 Judge: Kerry J. Ward Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 10/08/2024 01:02 PM INDEX NO. 537685/2022 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/08/2024

At anTAS Term, Part 9, oftheSupteme Court ofthe State of New Yprk, held in and forthe County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 7 th dav of October, 2024.

PRESENT:

HON. KERRYJ. WARD, Justice. --· -·----------· ----· ---.--------------· . ··----------· ----------- ·x·· Tu CASA EN QUISQUEYA, INC.,

Plaintiff, -against- Index No.: 537685/21

VA NESSA COLON NIEVES and Lurs ANGEL RIVERA,

Defendants. ---.---------------. ----------------------------. -- ·-------------.. x·. The fo¹\owing e-filcd papers read herein: NYSEF Doc·Nos;:

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed. _ _ _ _ _ _ _ _ _ __ 14-15 Opposing Affidavits {Affirmations)._ _ _ _ _ _ _ _ _ __ 2.1-23 Affidavits/ Affirmations in Reply _ _ _ _ _ _ _ _ _ __ 24-25

Upon the foregoing papersinthis action for unpaid rent andattomey's fees, plaintiff

Tu Casa En Quisqueya, Inc. moves (in motion [mot.] sequence [seq,] one), pursuant to

CPLR3212, for summary ju9ginent in its favor.

Facts and Procedural Historv·

Plaintiff leased the ground floor unit at 250 Knickerbocker Avertueh) Brooklyn, a

comm¢tcial property, to defendants Vanessa Colon Nieves and Luis Angel Rivera

FILED: KINGS COUNTY CLERK 10/08/2024 01:02 PM INDEX NO. 537685/2022 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/08/2024

Citicorp. Trust Bank, FSBv Vida.urte,.1.55 AD3d 934; 935 [2d Dept 2017]}" Corisequerttly,

the court. orders a sp~cial referee hold a framed-issue hearin,g·to determine the-reasonable

attorney's fees; costs and expenses plaintiff incurred (see e;g. Galasso,. Langlonc & Batter,

LLP v·Galasso, 89 AD³-d 897, 898 [2d Dept-:201 l]).

All other issues· not specitfoall)' addtessed.herehi have been totiSideredby the court

and found to be \Vitho\J.t merit..

Accord1i1gly, it is hereby

ORDERED, thafhranch ofplaintift~ TU CASA EN QUlSQUEYA, INC. 'S motion (mo:t. seq. one) for sumnrnry judgincnt as to unpaid rent is granted aitd. plain.tiff is entitled

to $ 6 7, 0 16 in unpaicl r~nt. from defendants; and it is further

ORDERED, that that branch. of plaintiff, TU CASA EN QUISQUEYA, INC.'S

motion .(inot. seq. (Jne) for summ:aryjudgment a$ to attotneys' fe_es; costs and. expenses that

the plaintiff incurted 111 bringing this action is .granted,, -at1d the pari:i ¢$ sha11 .appear- fQr a

framed'.'issue hearing.regardin g the amonnt owed to the plaintiff as the prevailing pa,rty.

This tdi1stituteS the decision and order-of the Court:.

ENTER

Hon. Kerry J. Ward, A.J.S:C.

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8 of 8 [* 8]

Footnotes

[1] of 8 [* 1] (NYSCEF Doc No. 18 at 2). The lease stated that defendants would pay $2,200 pet Jrtonth from September20l9 to August 2020, $2)88 per month from September 2020 to August 2021, and $2,380 per month from Septetnber 2021 to August 2022 (NYSCEF Doc No. 18 at , 2.2). Defendants tendereda $4,400 security deposit at the lease's inception (NYSCEF Doc No. 18 at 1[ 2.4). Defendants stopped payingrent in February 2020 (NYSCEF Doc No. 15 at ,-r 13). Plaintiff sought an order of eviction and, on May 24, 2022, Kings County Housing Court (Nicholas W. Moyne, l)grnnted plaintiff such relief (NYSCEF Doc No. 19 at 2). After the order of eviction and thrt)ugh the lease's termination, defendants continuaHy failed to pay rent (NYSCEF Doc No. 15 at ,r 13). The missed rent payments totaled $71,416 (NYSCEF Doc No. 15 at ,-r 13). Discussion Standard of Review Ona motion forsummaryjudgment, the courtlooks at the evidence in the light most favorable to the nonmoving party (see Vega v Restani Constr. Corp,: 18NY3d 499, 503 [20 I 2]). The initial burden lies with the moving part:yto show that there is no dispute of material fact and that he or she is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [19861). Failure to meet this burden ends the cbmi's analysi~. i.e., the 1noving party is not entitled to summaryjudgment (see Vega; 18 NY3d 4 at 503). Thus it: mtd only if, the moving. 11arty meets its btJrden does the burden shift to the nonmovihg party tel show a dispute of material tact (see id.}. •'Summary judginent is ,i drastic remedy that deprives a litigant of his or her day in court, and it should ·only be 2

[2] of 8 [* 2] employed when there is no doubt as to the absence oftriable issues" {Doize v Holiday Inn Ronkonkoma, 6 AD3d 573, 574 [2d Dept 2004] [internal quotation marks omitted]). U11paMRent Plaintiff is entitled to summary judgment on its first cause of action forunpaidrent. In tneeting its burden, plaintiff submitted the lease agreement detailing defendants' financial obligations (NYSCEF Doc No. 18at ,r 2.2), an affidavit from plaintiffs president, . . Ernesto Armenteros,. stating that defendants vvere delinquent on their rent from February 2020 to Aqgust 2022 (NYSCEF Doc No, 15 at ,r,r 12-13), and the prior court's order of eviction (NYSEF Doc No. J9 at2). These documents show that defendants owed $71,416 in unpaid rent, and; after subtracting the $4,400 security deposit, the balance owed was . . $67,016. Plah1tiff having 111et its burden, that burden now shifts to defendants to show ''a dispute of material fact" (Vega, 18 NY3d 4 at503). Defendants' argument does nnt address the aforementioned facts and their legal-based contentions are not persuasive, thus, defendants have failed to meet their burden. Initially; defendants' argument, that the court should deny plaintiffs motion because it failed to contain proofof its -corporate status, misapprehends the law. Pleading requirements state that ''[ w ]here any JJarty is a corporation, the complaint shall so state" (CPLR 3015 [h]). Defendants point to no authority that says a cotporation must assert its corporate status when moving for summary judgment. In any event, the complaint complies with CPLR 3015 {b); stating that plaintiff "was and still is a New York corporation; fonnedunder and by virtue ofthe laws of the State ofNew York, authorized 3

[3] of 8 [* 3] to do business in New York State" (NYSCEF Doc No. 2 at ~ 3). Even if this statement was somehow deficient or plai11tiffwas requiredto plead its corporate status in its summary judgment motion, the cOurthas the authority 'to overlook a mistake that does not prejudice a party. Defortdants make no clain1 of prejudice and the court fails to find any as well (see C:PLR 2001; see e.g. Etkin & Co. v Play It Again Apparel, 235 AD2d 264, 264 [1st Dept 1997] [''[p]etitioner's· failure to i!llege its corporate status in the confirmation petition in accordance with CPLR 3015 (b) is a minor pleading defect that resulted in no prejudice to respondent: and was thus properly disregarded"]). Secondly, defendants' assertion that plaintiff did not meet its burden because it failed to include a rent ledger is unavailing. In response, plaintiff submitted a copy ofthe rent ledger in its reply (NYSCEF Doc No. 26), and it min-ored what Annenteros stated in his atlidavit, i.e., it showed that back tent of$67,016 ,vas outstahding'. 1 Assuming for the sake of _i1rgument that the court did not consider the rent ledger, the end result ,vould not change. ,Again 1 defendants ofter no authority, nor was the court able to identify any, that states a rentledgc,r is an indispensable document in an unpaid rent cause of action. If anything, Second Department authority implies that a tent ledger is not necessary; instead an affidavit and the lease sutlices (see e.g. Rechler Equity B-1, LLCv 1 Generally speaking, the purpose of a reply is to acldress the opposition arguments, not present new evidence. ''[H]oweveri [this i·ule] is not inflexible; ai1d acourt, in the exercise c;ifits discretion, may consider a claim or evidence offered for the first time i11 reply· where the offering patty 1s a:dversades responded to the ne\1/ly prese11ted claim or evidence" (Matterp_fDusch v Erie Countj, Med. Ctr . , l 84 A,O3 d l 16 8; 1170 [4th Dept• 2020]). The court considers the rent ledger that plaintiff submitt~d because. plaintiff submitted in. ciirect response to defendants 1 al'gument and min:.ored·-the Arinenteros afiidavit. 4

[4] of 8 [* 4] AKR Co17J., 98AD3d 496, 497-498 [2d Dept 2012)). The case that defendants cite; 46th SL LeaseholderLLC v Hercules Corp. (208 AD3d 1083 [ lstDept2022]), is distinguishable from the instantinatter. There, the First Department held that the pJaintiffwas not entitled to summaryjudgmenLon its unpaid tent claim, writing: "As for the ... claim for unpaid rent, although plaintiffs property manager stated that defendant had accuniulated rental arrears of $26,562.50 under the lease, plaintiff failed to submit a rent demand or arrears ledger in support_, wartaiiting denial of summary judgmenton this claim"' (id. at 1085). A review of the property manager's afiidavit in that case shows that she stated in aeon cl usory fashion that the defendant owed $26;562.50 (NYSCEF Doc No. 67 at ,r 30). 2 At no point dicl the property manager explain how she arrived at that figure. Accordingly, the court . . interprets 46th St. Leastholder LLC to say that there must be some sort of documentation supporting a claim for unpaid rent, such as a rent demand or arrears _ledger, not that these documents are requirements. In contrast to 46th St: Leaseholder LLC, plaintiffs submissions detailed how it arrived at $67,016. The lease lays out what the rent was (NYSCEF Doc No. 18 at il 2.2), Armenteros;s affidavit explained the: calculation (NYSCEF Doc No. at ~m 12-13), and Justice Mayne's order, plainly, evict~d defendants based on nonpayment (NYSCEF Doc No. 12 at l ). These corroborating do_cuments are enough for plaintiff to meet its burden. Thirdly1_ defendants contend that "summary jtidgment .i~ not warranted. as the lease contains a force majeure . clause" (NYSCEF Doc N<l. 22. at 2). Defendants clo not elaborate i The same analysis for the cotfrt ¢.□n~idering the rent ledger (NYSCEF Doc No. 26) applie_s here (see supN(at n 1). 5

[5] of 8 [* 5] on this argument; except to cite 850 Third Ave. Owi1er, LLC v Discovery Communications, LLC, for the proposition that a force majeure ciause prevented the court from granting the landlord-plaintiff summary judgment as the COVID- 19 pandemic and a labor shortage prevented the tenant-defendai1t removing its property from the premises (205 AD3d 498,

[498] [1st Dept2022]). Based on this hriefstatementfroin defendants and the affidavit frmrt William Rivera, the person who ··actually ran the business ... [at] 250 Knickerbocker'' (NYSCEF Doc No. at ,r 3), the court infers that defendants are trying to say that the CO\TID.,.19 pandemic was an event beyond their control, and, thus, the forcemajeure clause relieves thetn oftheir financial obligations. The force majeure clause here states: ''In the event Landlord or Teimnts is prevented, delayed, or stopped from performing any act, undertaking, or obligation under this Lease by reason of an ·evei1t of fi.:1rce 1rtajeute,' including, without limitation, excessive adverse sveather, strikes; lockouts, labor disputes, inability to procure materials or permits, restrictive governmental laws or regulations, long tetm failure of powet\ acts of public enemies of this state or the United States of America, riots, insurrection, war, civil commotion, inability to obtain labor or materials, and/or any other cause (except financial) beyond the reasonable control of the party whose performance is so prevented, delayed, or stopped, then the tiin:e for that party's performance shall be extended one (I) day for each day's prev:ention, delay, or stoppage by reason of such event of force majeure'' (NYSCEF Doc No. l Kat ii 18.9). The COVID-19 pandemic was ce1iainly arr event beyond the control of defendants. However; and as defendants correctly observe, the. force majeure clause merely ''extends'' the time a party has to perform; the force majeu'te clalist:: does :hot absolve a party of its responsibilities under the lease. Thus, defendants would be responsible for the rei1t, just at a later date. Although academic,. given that· the. force· majeure clause did not releas.e 6 6 of 8 [* 6] defendants or their responsibilities, thete is doubt whethet the COVID-19 pandemic was ''the event [that] prevented, delayed, or stopped" (NYSCEF Doc No. 18 at ~ 18.9) defendants from paying rent. Defendants' delinquency started in February 2020, a month beJme then-Governor Cuonto declared a state of emergency because of the COVID-19 pandemic (see Executive.Order [Cuomo] No. 202 [9 NYCRR 8.202]), artd t0i1tinued until August 2022, more than a year atrer then-Governor Cuomo lifted restrictions associated with the COVID-19 pandemic (see Executive Order [Cuomo] No. 210 [9NYCRR 8.210]; see genei"ally Experience NY Nmv Inc. v 126 W. 34th St. Assoc. L.L. C., 224 A:D3d 441, 442 . . . [1st Dept 2024) ["the force majeure ptovision does not excuse plaintiffs nonpayment of rent for the period after nonessential businesses were pennitted.to reopen on or ab(mt June 8, 2020, nor does. it permit plaintiffs unilateral early termination of the lease"]). Attorney's Fees "In determining reasonable compensation for an attorney, the court rrmst consider such factors as the time, effort 1 and skill required; the dif11culty of the questions presented; counsel's experience, ability, and reputation; the fee customarily charged in: the locality; and the contingency or certainty of compensation" (People's United Bank v Patio Gardens III, LLC; 143 AD3d 689, 691 [2d Dept 2016] [internal quotation marks omitted]). While p1ai ntiff seeks attorney's tees, and the lease specifically en ti ties pl aintiff to attorney's. fees (NYSCEF Doc No. 18 at ,r 18.8) as itis the prevailing party (see e.g. Round Dune, Inc~ v Fil!wwski, 197 AD3d 748, 749 [2d Dept 2021]), plaintiff has not demonstrated the amount owed. Plaintiff merely states, in condusory fashion, that the lease entitles it attorney's fees but provides no evidence substantiating the claim (NYSCEF Doc No. at 1 15) (see e.g 7 7 of 8 [* 7]