Ciampa Whitepoint, LLC v. Transpacific, LLC

Ciampa Whitepoint, LLC v Transpacific, LLC (2022 NY Slip Op 51374(U)) [*1] Ciampa Whitepoint, LLC v Transpacific, LLC 2022 NY Slip Op 51374(U) [77 Misc 3d 139(A)] Decided on December 23, 2022 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ 2021-139 Q C Ciampa Whitepoint, LLC, Respondent, against Transpacific, LLC, Doing Business as Abiding Auto, Appellant. Wang Law Office, PLLC (Jean Wang of counsel), for appellant. Cooper, Paroff & Graham, P.C. (Ira G. Cooper of counsel), for respondent. Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered February 8, 2021. The final judgment, after a nonjury trial, awarded landlord possession and the principal sum of $6,632.01 in a nonpayment summary proceeding. ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial. In or about October 2019, landlord commenced this commercial nonpayment proceeding to recover possession of the subject premises as well as unpaid additional rent (for real estate taxes) of $173.33 for each of the months of February 2018 through October 2019, and unpaid October 2019 rent in the amount of $2,533.53. Tenant asserted affirmative defenses and counterclaimed for, among other things, rent overpayment. Following a traverse hearing, the Civil Court held that the notice of petition and petition were properly served. A virtual nonjury trial took place on October 21, 2020, November 9, 2020 and December 1, 2020, during which the Civil Court granted landlord's motion to amend the petition to conform to the evidence to include base, and additional, rent for the time period of October 2019 (when the petition was filed) through October 2020 (when the trial commenced). Following the trial, the Civil Court awarded landlord possession and $6,812.25 in base and additional rent for the time period of February 2018 through October 2020. With respect to tenant's rent overpayment counterclaim, the Civil Court found that other than one rent overpayment, which the court considered in its calculations, [*2]tenant "offered no testimony or documentary evidence in support of its claims for credit or reimbursement due." On appeal, tenant contends that the notice of petition and petition were not properly served; that the petition was not properly amended pursuant to CPLR 3025 (c); that enforcement of the lease agreement's "tax escalation clause" required landlord to prove that it had paid real estate taxes and landlord had to establish the "current rent"; that the Civil Court improperly allowed landlord to belatedly submit documentary evidence in contravention of its virtual trial procedures; that the final judgment is not supported by substantial evidence; and that its counterclaim for rent overpayment should have been granted. The amended record on appeal is insufficient to determine tenant's contention that the notice of petition and petition were not properly served, as tenant failed to include the transcript of the traverse hearing in the record. It is well settled that "a party alleging error must present an adequate record for appellate review" (Matter of Hoge [Select Fabricators, Inc.], 96 AD3d 1398, 1399 [2012], citing de Vries v Metropolitan Tr. Auth., 11 AD3d 312, 312-313 [2004]; see also CPLR 5526). Pursuant to CPLR 3025 (c), a "court may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just." Permission "to conform a pleading to the proof pursuant to CPLR 3025 (c) should be freely granted absent prejudice or surprise resulting from the delay" (Alomia v New York City Tr. Auth., 292 AD2d 403, 406 [2002]; see also Rodriguez v Panjo, 81 AD3d 805, 806 [2011]). We find that the Civil Court properly exercised its discretion in amending the pleading since, contrary to tenant's argument, there was no prejudice or surprise to tenant, as landlord consistently argued before and during trial that tenant was responsible for these payments. In addition, a landlord does not have to serve an additional rent demand in order to amend a petition with leave of court to include rent that accrued after the proceeding was commenced (see 36 Main Realty Corp. v Wang Law Off., PLLC, 49 Misc 3d 51 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Paragraph R27 of the relevant lease agreement states that "Tenant agrees to pay $170.33 per month for their R E [Real Estate] Tax charges at current rates." We find that this is not a "tax escalation clause" since, by definition, a tax escalation clause is a lease provision wherein the tenant agrees to pays tax increases on the property. In contrast, here, tenant agreed to pay a fixed monthly amount for the life of the tenancy. Consequently, we find no merit to tenant's contentions that landlord had to establish that it had paid real estate taxes and the current rate of the taxes. In awarding landlord a final judgment, the Civil Court relied upon, among other things, a "ledger" to determine that tenant did not pay portions of rent and additional rent due and to calculate the monies owed. It is undisputed that landlord neglected to provide a copy of this ledger, as well as other documents it intended to submit into evidence, to tenant and to the court ten days in advance of the virtual trial as required by the court's rules and as agreed to in a stipulation. We agree with tenant's argument on appeal that the Civil Court should have adjourned the trial to permit tenant an opportunity to review the documents and prepare rebuttal evidence. Furthermore, tenant correctly argues that the Civil Court improperly admitted the "ledger" into evidence as a business record since landlord's employee, and sole witness, testified that she had created the document specifically for trial. Landlord presented no evidence from [*3]which the court could find, "first, that the record [was] made in the regular course of business—essentially, that it reflect[s] a routine, regularly conducted business activity, and that it be needed and relied on in the performance of functions of the business; second, that it [was] the regular course of such business to make the record . . . essentially, that the record be made pursuant to established procedures for the routine, habitual, systematic making of such a record; and third, that the record [was] made at or about the time of the event being recorded— essentially, that recollection [was] fairly accurate and the habit or routine of making the entries assured" (People v Kennedy, 68 NY2d 569, 579-580 [1986]; see CPLR 4518 [a]). Under the circumstances, a new trial is required. Accordingly, the final judgment is reversed and the matter is remitted to the Civil Court for a new trial. WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 23, 2022