[*1]
Ain v Vasquez
2013 NY Slip Op 51006(U) [40 Misc 3d 1202(A)]
Decided on June 26, 2013
Dist Ct, Nassau County
Fairgrieve, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 26, 2013
Dist Ct, Nassau County


Martin Ain, Petitioner(s)

against

Juan Vasquez, Respondent(s).




LT-006546-12



Robert A. Smith, Esq., Attorney for Petitioner, 68 West Park Avenue, P.O. Box 58, Long Beach, New York 11561, 516-431-3777; Jeffrey S. Eisenberg, Esq., Attorney for Respondent,1840 Hempstead Turnpike, East Meadow, New York 11554, 516-307-8441.

Scott Fairgrieve, J.

The following named papers numbered 1 to 3

submitted on this Motion & Cross Motion

on May 8, 2013

papers numbered

Notice of Motion and Supporting Documents1Notice of Cross Motion and Supporting Documents2

Petitioner's Affidavit in Opposition3

Reply Papers to Motion

The petitioner commenced this Landlord/Tenant non-payment proceeding on December 31, 2012 by the service of a Notice of Petition and Petition to Recover Possession of the Premises located at 257 Main Street, Hempstead, New York. The petitioner seeks a final judgment of possession, warrant of eviction and money judgment in the sum of $11,000.00, with interest thereon from September 2012.

This matter was first noticed to be heard on January 8, 2013. On April 8, 2013 the respondent interposed an answer containing affirmative defenses and counterclaims.

The petitioner moves for an order pursuant to CPLR 3211(a)(6) striking the respondent's counterclaims on the grounds that Paragraph 5 of the written lease contains a "no counterclaim" provision.

Paragraph 5 of the lease entitled "Legal Actions" provides:

In the event any action for rent or additional rent is commenced [*2]

by the Landlord, the Tenant herein shall not be entitled to assert

any offset or counterclaim but may bring a separate action on his

own behalf.

It is well settled law that a provision in a commercial lease precluding a tenant from asserting a counterclaim has been consistently upheld (see Mid-Island Shopping Plaza Co. v. Cutler, 112 AD2d 405 [2D Dept 1985]; Titleserv, Inc., v. Zenobio, 210 AD2d 310 [2d Dept 1994]; Chemical Bank of New York Trust v. Batter, 31 AD2d 802 [1st Dept 1969]; Bomze v. Jaybee Photo Suppliers, 117 Misc 2d 957 [App Term, 1st Dept 1983]). Nevertheless, a tenant is not deprived of a remedy, but instead is relegated to asserting the cause of action in a separate plenary action (see Bomze v. Jaybee Photo Suppliers, 117 Misc 2d 957, supra.)

This rule, however, is not absolute. As the respondent points out, where the counterclaim is so inextricably intertwined with a petitioner's claim for rent or possession, the counterclaim will not be stricken (see Haskell v. Surita, 109 Misc 2d 409 [Civ. Ct. 1981]). Rather, in those circumstances, a joint resolution of the claims will expedite disposition of the entire controversy, avoid multiplicity of other lawsuits between the parties, and eliminate greater delay and expense (Haskell v. Surita, 109 Misc 2d 409, supra).

Moreover, RPAPL §743 provides that a party to a summary proceeding has the statutory right to interpose "any legal or equitable defense, or counterclaim" and the court may render affirmative relief for the amount due on the counterclaim (see also 14 Carmody Wait 2d, sec. 90:252-523; 33 NY Jur., Landlord and Tenant, sec. 104, 109 and 34 N.Y.Jur., Landlord and Tenant, sec. 300).

In the instant case, the Court finds that the respondent's first counterclaim which alleges damages in the sum of $100,000.00 based upon allegations that petitioner "attempted to intimidate and harass respondent and coerce a settlement" is not inextricably intertwined with the petitioner's claim for unpaid rent. Accordingly, the respondent's first counterclaim is dismissed without prejudice to renew in a plenary proceeding.

However, the Court finds that the respondent's second counterclaim of actual or constructive eviction, to offset the respondent's obligation to pay rent, is inextricably intertwined with petitioner's non-payment action. The respondent contends that the zoning regulations in the Village of Hempstead prohibit respondent from operating its window manufacturing business which is specifically enumerated in Paragraph 2 of the written lease. In support of this contention, the respondent submits the affidavit of George Foster, a building inspector for the Village of Hempstead, who states under oath that: "the property known as 257 Main Street, Hempstead, New York is zoned Business B District in which light manufacturing such as the fabrication of vinyl replacement windows is a prohibited use" [see Respondent's "Notice of Motion"].

The respondent cross moves for an order pursuant to CPLR 3212 granting summary judgment in its favor. The respondent also seeks an award of damages to be determined by the court, for the return of the security deposit, all rent respondent paid to petitioner as well as out-of-pocket expenses incurred in connection with the premises. The respondent further requests reasonable attorney's fees in accordance with Paragraph 27 of the lease. The petitioner opposes the respondent's motion.

Summary judgment is drastic relief - it denies one party the opportunity to go to trial. [*3]Thus, summary judgment should only be granted where there are no triable issues of fact (see Andre v. Pomeroy, 35 NY2d 361 [1971]). The focus for the court is on issue finding, not issue determining (see Hantz v. Fishman, 155 AD2d 415 [2D Dept 1989]).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence in admissible form to demonstrate the absence of any material issues of fact. Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Once the movant has demonstrated a prima facie showing of entitlement to judgement, the burden shifts to the party opposing the motion, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial for the action (see Zuckerman v. City of New York, 49 NY2d 557 [1980]).

In support of its motion, the respondent provides the affirmation of counsel, along with the affidavit of the tenant, Juan O. Vasquez. Mr. Vasquez contends that he entered into a written lease agreement with the petitioner to operate a window manufacturing company (see Respondent's "Notice of Motion", Exhibit "A," ¶2). Paragraph 2 of the written lease provides in relevant part:

Tenant will operate only a window manufacturing company.

[Emphasis added].

Paragraph 35 of the lease entitled "Ordinances and Statutes" provides in relevant part:

Lessee shall comply with all statutes, ordinances, and requirements

of all municipal, state and federal authorities now in force, or which

may hereafter be in force, pertaining to the premises, occasioned by

or affecting the use thereof by lessee.

A lease is potentially voidable at the tenant's election if the premises' use is expressly forbidden by law and authorities have no power to dispense with the statutory prohibition (§2:17 of Rasch, Fourth Edition, "Landlord at Fault"). This is not the case here. The respondent claims that he did not know that the use of the premises violated the zoning law until litigation commenced. The mere fact that a zoning prohibition restricts a party's operation of a leased premises does not necessarily render the lease agreement illegal where it appears that an appeals board has the authority to permit a variance (Verschell v. Pike, 85 AD2d 690, 445 N.Y.S.2d 489 [2D Dept 1981]).

The parties' lease places the burden on the tenant to investigate zoning laws that may prohibit the use of the premises. The respondent's failure to comply with the zoning law violates its obligation under the lease. Here, the respondent has made no such attempt to obtain an exception to the zoning laws, so the respondent has not met the burden of determining whether the zoning proscription was incurable.

The respondent has not met its burden to trigger the above provision because it never appealed to the zoning board to secure a variance allowing the operation of a window manufacturing company on the leased premises. A zoning proscription is not absolute; a lease [*4]that provides for a use of premises prohibited by the zoning law is not necessarily illegal where the board of appeals has the authority to grant a variance (Elk Realty Co. v. Yardney Elec. Corp., 153 N.Y.S.2d 730, 731 [App. Term 1956]). Absent such facts proving the respondent appealed to the zoning board and was denied, the court is left to speculate as to whether this particular zoning proscription is "incurable" as the law requires to render the lease void for illegality.

In Say-Phil Realty Corp. v. DeLignemare, 131 Misc. 827, 228 N.Y.S. 365 [Mun. Ct. 1928], the lease provided for use of the premises as a drug store in an area zoned for residential use where the use was not permitted. The lease contained a specific provision making the lease subject to the restrictions of the zoning law. The court held that the burden of compliance with the zoning code and obtaining the necessary variance and modification was on the tenant. The tenant's claim of illegality of the lease was rejected by the court.

In the case at bar, respondent entered into the lease subject to the zoning laws in Paragraph 35 of the lease. The respondent claims that he vacated the premises, as he was unable to operate his manufacturing business lawfully. However, prior to retaining an attorney the respondent never complained that the use of his premises violated Village law and no violation was issued by the Village of Hempstead regarding the use of the premises (see Affidavit in Opposition ¶¶3-4). Respondent assumed the risk of the zoning law and cannot be heard to complain of the alleged illegality where respondent never made any application to the Village of Hempstead for a variance or other similar relief. (see Jobco-Mitchel Field, Inc. v. Lazarus, 156 AD2d 426, 548 N.Y.S.2d 700 [1989]).

In Say-Phil, supra, the court further held that the tenant waived any claim of failure of consideration by paying rent for many months and not prosecuting an application to the [zoning] board of appeals. In the case at bar, respondent paid rent for many months and never made application to the Village of Hempstead. Thus, there is a complete waiver of the claims of failure of consideration and illegality by the respondent.

Furthermore, in a real property contract, unless the facts represented are matters particularly within one party's knowledge, the other party must make use of the means available to learn, by the exercise of ordinary intelligence, the truth of such matters "or he [or she] will not be heard to complain the he [or she] was induced to enter into the transaction by misrepresentation" (Culver v. Starr Realty Co., 307 AD2d 910, 763 N.Y.S.2d 84 [App. Div. 2003]; (see also Purmil Co., LLC v. Chuk Dey India Too, Inc., 20 Misc 3d 1136(A), 867 N.Y.S.2d 377 [Dist. Ct. 2008]; internal citations omitted). In posing the aforementioned assertions, the respondent (1) impermissibly claims it was defrauded by the actions of the landlord and (2) mistakenly places the burden of investigating the zoning law on the landlord.

The respondent failed to properly investigate the applicable zoning and cannot translate said failure into a fraud claim. (Purmil Co.). The tenant's failure to condition the lease agreement on the procurement of a zoning variance does not relieve him of his contractual obligations under the agreement. (§2:22 of Rasch, Fourth Edition, "Conditioning Lease to Protect Tenant in Event of Illegal Use").

The respondent's second counterclaim is denied; the respondent is not entitled to receive previously paid rent (see §2:21 of Rasch, Fourth Edition, "Zoning Violation," "Therefore, if the inability to use the premises is due to the inability of the tenant to comply with the law, which he [*5]undertook to do, then the tenant cannot be relieved from his obligations under the lease."). Furthermore, the Court dismisses the claim for return of the security deposit because no basis exists to support such a claim (see Purmil Co., citing Raner v. Goldberg, 244 NY 438 [1927]; see generally Houston v. Kennedy, 257 AD2d 858, 684 N.Y.S.2d 310 [1999]).

This proceeding is set down for trial on July 30, 2013 at 9:30 a.m. This constitutes the Decision and Order of the Court.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:June 26, 2013