By Notice of Motion, dated March 1, 2007, defendant Harborside Mini Storage, Inc., a/k/a Harborside Self Storage Corp. ("Harborside"), seeks an Order dismissing the instant complaint with prejudice, pursuant to CPLR 3211 and 3013, for failure to state a cause of action. Plaintiff, New York City Economic Development Corporation ("EDC"), opposes the motion.

This action is ancillary to a lengthy and ongoing commercial holdover proceeding commenced by plaintiff in Civil Court, Kings County (Index No. L&T 78755/05). Since 1999, defendant has owned and operated a self-storage business at a building known as "Unit G" or "Building 56," located within the Bush Terminal Industrial Complex in Brooklyn, New York. Defendant has maintained that it has been in possession of the premises pursuant to a valid written sublease entered into between defendant and plaintiff's predecessor-in-interest, with a term of July 1, 1999 through December 31, 2008.

Plaintiff became landlord of the premises pursuant to a lease agreement entered into with the City of New York on December 1, 2002. From the time plaintiff became the landlord of the premises defendant was billed monthly base rent and electricity usage charges. Defendant tendered payment of the same, until September 2003, when defendant stopped paying the monthly base rent and electricity charges. Plaintiff then commenced a nonpayment proceeding in Civil Court, Kings County (Index No. L&T 57010/04). In June 2004, that proceeding was settled pursuant to a Stipulation, Consent Order and Final Judgment. In the Stipulation, Consent Order and Final Judgment, defendant acknowledged outstanding rent charges and electricity charges due and owing from September 1, 2003 through May 1, 2004. [*2]

In October 2004, plaintiff served defendant with a Notice of Default, which advised defendant of its failure to comply with its obligation to pay the monthly electricity usage charges, and demanded payment of the same. Defendant thereafter tendered payment for electricity usage charges for August, September and October 2004. After another letter from plaintiff, defendant also tendered payment for electricity usage charges for June and November 2004. Plaintiff contends that defendant has not paid electricity usage charges since December 2004.

In mid-2005, plaintiff served defendant with a thirty-day notice of termination. Plaintiff claimed that the sublease was invalid and that defendant was a month-to-month tenant, and purported to terminate defendant's tenancy effective June 30, 2005.

In July 2005, plaintiff commenced the above mentioned summary holdover proceeding in the Civil Court, seeking possession of the premises and certain alleged rental arrears, including electricity usage charges. Defendant interposed counterclaims against plaintiff for actual and partial constructive eviction. Judge Jack M. Battaglia, then a Judge of the Civil Court, denied the parties' cross-motions for summary judgment and held a bench trial in early 2006. On May 18, 2006, Judge Battaglia issued a Decision After Trial and a corresponding Judgment which awarded plaintiff a judgment of possession of the premises, and stayed the warrant of eviction subject to further proceedings. Defendant timely filed a notice of appeal, and that appeal is currently pending before the Appellate Term, Second Department.

On May 24, 2006, Judge Battaglia issued a Supplemental Decision After Trial which found that defendant established its counterclaim for partial constructive eviction against plaintiff. In addition, Judge Battaglia found that the Court was without subject matter jurisdiction to address the issue of the electrical charges in an Article 7 proceeding, because the electrical charges were not collected as "rent."

In July 2006, Judge Battaglia held another hearing to address additional issues, including the rate of ongoing use and occupancy, defendant's counterclaim damages, and the length of the stay of the execution of the warrant. On October 6, 2006, Judge Battaglia issued another Decision and Order, which, inter alia, calculated defendant's damages for partial constructive eviction, stayed the warrant of eviction until March 31, 2007, and determined the rate of ongoing use and occupancy. In that decision, Judge Battaglia also observed that there remained unresolved issues regarding the terms and conditions of defendant's continuing occupancy, and noted that the full complement of those terms and conditions had not been determined in the proceeding before him. Judge Battaglia further noted that "should any significant disagreement arise" in that regard, that such issues "should be resolved in a plenary action, together with other issues that have been reserved for that forum...."

Plaintiff thereafter commenced this action seeking $220,130.29 for unpaid electricity usage charges. Plaintiff seeks unpaid monies due and owing for the period of December 2004 through the date when the instant Summons and Verified Complaint were [*3]filed on or about January 11, 2007.^[FN1]

It is well settled that, in determining a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211, "the pleadings are to be afforded a liberal construction, and the court must accept the allegations as true, according the plaintiff the benefit of every reasonable inference to determine whether they come within the ambit of any cognizable legal theory" (Guggenheimer v Bernstein Litowitz Berger & Grossman, LLP, 11 Misc 3d 926, 930 [2006]; see also Cayuga Partners, LLC v 150 Grand, LLC, 305 AD2d 527 [2003]; Bovino v Village of Wappinger Falls, 215 AD2d 619 [1995]). A motion to dismiss for failure to state a cause of action must be denied if "from [the complaint's] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see also Doria v Masucci, 230 AD2d 764 [1996]; Bovino,, 215 AD2d at 620). "So liberal is the standard under these provisions that the test is simply whether the proponent of the pleading has a cause of action," not even whether he has stated one'" (Cayuga Partners, 305 AD2d at 527, quoting Wiener v Lazard Freres & Co., 241 AD2d 114 [1998]).

Accordingly, the issue before the Court on this motion isn't whether or not defendant was obligated to pay the subject electricity usage charges, but whether the Complaint has sufficiently alleged a cognizable claim.

The Complaint in this action states that defendant, as an occupant of the premises, paid monthly rent and monthly electricity usage charges to the plaintiff, who was and is the landlord of the premises, and that defendant continued to pay monthly rent and electricity usage charges to plaintiffs for the first two years that plaintiff was the landlord. The Complaint further states that, in settling a nonpayment proceeding in Civil Court, defendant entered into a Stipulation, Consent Order and Final Judgment wherein it acknowledged its arrears, agreed to pay the same under a payment schedule, and agreed to abide with its existing obligations to timely pay ongoing monthly rent and monthly electricity usage. The Complaint also states that plaintiff has not waived any of the electricity usage charges which are due and owing, and that plaintiff has demanded payment of the same.

The Court finds that the Complaint alleges sufficient facts such that defendant's motion to dismiss for failure to state a claim must fail. The Complaint alleges that the parties conduct from the onset of their relationship as tenant and landlord, and the stipulation which set forth defendant's obligation to pay electricity usage charges, establishes an obligation on the part of defendant to pay the electrical charges. Defendant does not argue that it tendered payment on the disputed electricity usage charges, but rather that it was not obligated to make such payments. While that argument may [*4]eventually prove fruitful in defense of the action, that argument must fail here, where plaintiff must be afforded every favorable inference and the allegations in the complaint must be accepted as true. Accordingly, it is

ORDERED, that the defendant's motion to dismiss the instant complaint for failure to state a cause of action is denied.

This constitutes the Decision, Opinion and Order of this Court.

Dated: April 27, 2007

ENTER,

_________________________

Ira B. Harkavy

J.S.C.