Almark Holdings Co., LLC v. Pizza147 NY LLC

Almark Holdings Co., LLC v Pizza147 NY LLC (2022 NY Slip Op 51224(U)) [*1] Almark Holdings Co., LLC v Pizza147 NY LLC 2022 NY Slip Op 51224(U) [77 Misc 3d 130(A)] Decided on December 15, 2022 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on December 15, 2022 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT PRESENT: Brigantti, J.P., Hagler, Tisch, JJ. 570472/22 Almark Holdings Co., LLC, Petitioner-Landlord-Appellant, against Pizza147 NY LLC d/b/a "iPizzaNY," Respondent-Tenant-Respondent. Landlord appeals from an order of the Civil Court of the City of New York, New York County (Ilana J. Marcus, J.), entered August 9, 2022, which dismissed the petition without prejudice, and denied, as moot, landlord's motion to amend the petition, dismiss tenant's affirmative defenses and for summary judgment in a commercial nonpayment summary proceeding. Per Curiam. Order (Ilana J. Marcus, J.), entered August 9, 2022, reversed, without costs, petition reinstated, and landlord's motion granted to the extent of dismissing the affirmative defenses, amending the petition to include rent and additional rent for the period from March 2020 through July 2021 and, upon such amendment, awarding landlord summary judgment as to liability for rent and legal fees, and remanding the matter to Civil Court for an assessment of the amounts owed, and for entry of a final judgment accordingly. Civil Court should not have dismissed the petition since landlord's written rent demand, which afforded tenant notice of the particular periods for which rent and other charges were due and the approximate good faith amount claimed for each such period, satisfied the requirements of RPAPL 711(2) and was a sufficient predicate for the maintenance of this nonpayment summary proceeding (see e.g. 54-56 Mgt. Corp. v MTA Fine Arts Co., Inc., 76 Misc 3d 136[A], 2022 NY Slip Op 50949[U] [App Term, 1st Dept 2022]; 501 Seventh Ave. Assoc., LLC v 501 Seventh Ave. Bake Corp., 7 Misc 3d 137[A], 2005 NY Slip Op 50799[U] [App Term, 1st Dept 2005]; Brusco v Miller, 167 Misc 2d 54 [App Term, 1st Dept 1995]). The de minimus miscalculation in the rent demand did not render the notice jurisdictionally defective so as to warrant dismissal of the petition. The evidentiary proof submitted by landlord established its entitlement to summary judgment on liability for unpaid rent due under the governing commercial lease agreement. In opposition, the affirmation of counsel failed to raise any triable issue of fact as to liability. Indeed, it was undisputed that tenant did not pay any rent for more than one year. Nor was any triable issue raised as to tenant's affirmative defenses (see Red Tulip, LLC v Neiva, 44 AD3d 204, 209 [2007], lv dismissed 10 NY3d 741 [2008]). "It is incumbent upon a [respondent] who opposes a motion for summary judgment to assemble, lay bare and reveal his proofs, in order to show that the matters set up in his answer are real and are capable of being established upon a [*2]trial. An opposing affidavit by an attorney without personal knowledge of the facts has no probative value and should be disregarded" (Di Sabato v Soffes, 9 AD2d 297, 301 [1959], appeal dismissed 11 AD2d 660 [1960][internal citations omitted]; see Middle States Leasing Corp. v Manufacturers Hanover Trust Co., 62 AD2d 273, 276 [1978]). All concur THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Clerk of the Court