The plaintiff moves for an order pursuant to CPLR 3212 granting the plaintiff summary judgment on its complaint ejecting the defendant from its space, more commonly known as Store Number 2075 at the Roosevelt Field Mall, Garden City, New York, and terminating the lease agreement between the parties, awarding the plaintiff a money judgment for the amount of the unpaid rents, and granting the plaintiff summary judgment on its claims for attorneys' fees and setting the matter down for a hearing to determine the amount of those fees. The defendant opposes the motion.

The attorney for the plaintiff states, in detail, in a supporting affirmation dated June 28, 2007, as shown in the supporting affidavit of Dana L. Smith, a senior paralegal in the collections department of Simon Property, a principal in the plaintiff, from the time the plaintiff became the successor in interest to Corporate Property Investors, the defendant/tenant's payment of the rent has been chronically late or not forthcoming at all which has resulted in the plaintiff having to repeatedly institute legal proceedings to procure the payment of rent. The attorney for the plaintiff explains the arrears would generally be resolved through the defendant's principals signing a promissory note, and immediately thereafter the defendant would again fail to pay ongoing monthly rents, and frequently the payments as required under the promissory note. The attorney for the [*2]plaintiff points out no fewer than 27 notices of default for the defendant's failure to pay the rent have been issued by the plaintiff under the lease terms. The attorney for the plaintiff notes no fewer than five summary proceedings have been commenced by the plaintiff against the defendant in the Nassau County District Court with appearances for hearings on those proceedings more than 11 times. The attorney for the plaintiff maintains, at moment of the supporting affirmation by plaintiff's counsel dated June 28, 2007, the defendant's arrearage total $101,471.92. The attorney for the plaintiff asserts the plaintiff is out of pocket for legal fees and costs associated with the matters involving the nonpayment of rent. The attorney for the plaintiff avers the defendant's tenancy has been terminated, and the plaintiff is entitled to possession of the space.

The attorney for the defendant states, in detail, in a opposing affirmation dated July 10, 2007, to the plaintiff's motion, the defendant should be awarded summary judgment dismissing the plaintiff's first and third causes of action, to wit seeking the recovery of real property and an award of attorneys' fees. The attorney for the defendant points out the complaint fails to state the plaintiff's interest in the subject premises, the plaintiff did not terminate the defendant's tenancy in the subject premises prior to the commencement of the this case, the plaintiff's purported termination of the defendant's tenancy in the subject premises subsequent to the commencement of this case is invalid because there is no proof of service of the notice termination upon the defendant and because the notice of termination was signed by a person not authorized to do so, as shown in the affidavit dated July 2007 (showing a fax date of July 10, 2007), of Manoucher Hedvat, a member of the defendant, the plaintiff never ousted the defendant from the subject premises, and the complaint fails to describe the subject premises with reasonable certainty. The attorney for the defendant notes the plaintiff's motion should be denied, and the defendant should be awarded summary judgment dismissing the third cause of action because the plaintiff does not alleged it incurred any attorneys' fees in connection with reletting according to the lease terms, to wit Section 8.3A, and even if the Court were to hold the plaintiff is entitled to recover attorneys' fees pursuant to the lease terms, the plaintiff must still be the prevailing party in order to recover, and the plaintiff cannot achieve success on the central relief sought, to wit a possessory judgment, and thus will not be the prevailing party in this case.

The attorney for the plaintiff states, in detail, in a reply affirmation dated July 27, 2007, the opposition papers are untimely, and no excuse was proffered by the defendant in its papers for the delay. The plaintiff's attorney points out, although RPAPL § 713 requires a certified deed which is the basis of the defendant's arguments concerning the deed, that has nothing to do with the instant action. The plaintiff's attorney challenges the defense claim that it is impossible to determine whether the purported deed includes a subject premises is simply specious because the defendant does not in any way contest the lease agreement which provides a full description of the premises which is more than sufficient for the commencement of this action. The attorney for the plaintiff states, as to [*3]the defense claim the complaint does not allege the plaintiff has a present or immediate right to possession, the opposition papers are completely without any support for such a requirement, and ignore clearly stated provisions of the complaint, specifically paragraph eight. The attorney for the plaintiff asserts, as to the defense claim the plaintiff has not terminated the defendant's tenancy in the subject premises, the defendants provide no support for the claim that this is required, and ignore the plain language of the lease section which the defendant points to which indicated the landlord may serve a written notice of termination. The attorney for the plaintiff avers there is no such obligation upon the landlord especially in light of the defendant's past history in the leased space, and if a notice was served it would be completely futile. The attorney for the plaintiff notes the instant motion includes a notice of termination of the lease. The attorney for the plaintiff maintains the defendant cites no basis for its claim the notice of termination must be served prior to the commencement of the action for it to be effective, and the plaintiff was entitled to possession of the property, at the time the case was commenced, due to the defendant's failure to pay its rent which the defendant does not dispute. The attorney for the plaintiff points out the defense argument regarding the service of the notice ignores the notice was served by overnight mail, shown show in a supporting exhibit, as required under lease provisions, and the notice was not attached to the moving papers because it was anticipated the defendant would attempt to argue it had not received the notice. The attorney for the plaintiff counters the defense reliance on certain legal authority, and states the defense attempt is misplaced because the lease provisions do not mandate service of a notice of termination, but rather the plaintiff may serve such notice, and the repeated nonpayment of rent, which in this case is undisputed, forms the basis of an ejectment action for the breach of a substantial obligation under the lease. The attorney for the plaintiff parries the defense argument the property sought to be recovered has not been sufficiently described in the papers because the motion papers include a copy of the lease between the parties, and a deed for the premises. The attorney for the plaintiff indicates the lease and the deed identify the space within the Roosevelt Field Mall which the defendant occupies, and moreover the defendant, in no way, contested in their opposition papers. The attorney for the plaintiff states there is no case law authority, as argued by the defendant, which holds a termination is a precondition for an ejectment action, especially one based upon the failure to pay rent, rather the appellate courts, have noted in identical situation as here, there is no obligation for a landlord to continue to issue notices which would be simply useless and futile. The attorney for the plaintiff points out the defense opposition papers do not contest the defendant owes substantial rent, has not paid rent for more than nine months as of July 27, 2007, date of the reply affirmation, nor contest the long history of late payment, nonpayment and abusing the judicial process, so as to avoid payment. The plaintiff's attorney argues, under these circumstances, there is no question of fact to decide, and the defendant admits all of the underlying allegations in the complaint and the motion for summary judgment. [*4]

Under CPLR 3212(b), a motion for summary judgment "shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." "The motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact."

Summary judgment is a drastic remedy that is awarded only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hosp., 68 NY2d 320, 325; Andre v. Pomeroy, 35 NY2d 361). Summary judgment is the procedural equivalent of a trial (Museums at Stony Brook v. Village of Patchogue Fire Dept., 146 AD2d 572). Thus the burden falls upon the moving party to demonstrate that, on the facts, it is entitled to judgment as a matter of law (see, Whelen v. G.T.E. Sylvania Inc., 182 AD2d 446). The court's role is issue finding rather than issue determination (see, e.g., Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395; Gervasio v. Di Napoli, 134 AD2d 235, 236; Assing v. United Rubber Supply Co., 126 AD2d 590). Nevertheless, "the court must evaluate whether the alleged factual issues presented are genuine or unsubstantiated" (Gervasio v. Di Napoli, supra , 134 AD2d at 236, quoting from Assing v. United Rubber Supply Co., supra ; see, Columbus Trust Co. v. Campolo, 110 AD2d 616, aff'd 66 NY2d 701). If the issue claimed to exist is not genuine, and, therefore, there is nothing to be resolved at the trial, the case should be summarily decided (see, Andre v. Pomeroy, 35 NY2d at 364; Assing v. United Rubber Supply Co., supra ). This Court has carefully reviewed and considered all of the parties' papers. The Court finds there are no issues of fact to be resolved here. The Appellate Term has held the repeated and unjustified failure to pay rent necessitating the commencement of multiple non-payment proceedings constitutes a substantial violation of the tenancy, which does not require a notice to cure (NY Pattern Jury Instr.—Civil 6:9). So,

As this court recently stated in analogous circumstances, a landlord need not serve a notice to cure as a predicate to commencement of a holdover proceeding based upon chronic nonpayment of rent, because "the cumulative pattern of tenant['s] course of conduct" is incapable of any meaningful cure (Adam's Tower Ltd. Partnership v Richter, 186 Misc 2d 620, 622; see also, 3363 Sedgwick v Medina, 187 Misc 2d 421 [App Term, 1st Dept]). Our decision in Adam's Tower to dispense with the empty formalism of a cure notice in this type of eviction proceeding is, as tenant now acknowledges in his appellate brief, consistent with a "long line of cases" reaching the same result (see, e.g., 974 Realty Corp. v Ledford, 9 Misc 2d 240; Ocean Farragut Assoc. v Sawyer, 119 Misc 2d 712; see also, National Shoes v Annex Camera & Elecs., 114 Misc 2d 751 [Saxe, J.]).

Tenant has offered no sound basis for us to depart from our recent four-square holding in Adam's Tower. Granted, a holdover proceeding [*5]based upon an alleged substantial lease violation generally will lie only after the tenant has failed to comply with a 10-day notice to cure (see, Rent Stabilization Code [9 NYCRR] § 2524.3 [a] [Code]). Strict adherence to the literal terms of the Code notice requirement is unwarranted in a chronic late payment holdover proceeding, however, since the past, persistent rent defaults which form the basis of the landlord's claim cannot be remedied by a tenant's "furnishing of assurances of future performance" (National Shoes v Annex Camera & Elecs., supra , 114 Misc 2d at 752) or, for that matter, by a tenant's actual tender of any rent payment that may accrue during the 10-day, prepetition cure period specified by the Code. [FN*] To insist upon the service of a formal notice to cure in such circumstances is to compel the performance of a useless and futile act

A history of repeated nonpayment proceedings brought to collect chronically late rental payments supports an eviction proceeding on the ground that the tenant has violated a "substantial obligation" of the tenancy (see, Sharp v Norwood, 89 NY2d 1068; 9 NYCRR 2524.3 [a])...A temporary financial embarrassment may excuse isolated instances of late payment, but inability to pay cannot excuse chronic and continuing delinquency. While we are not unsympathetic to tenants' situation, a landlord in a...cannot be expected to meet its obligations when rent is tendered only as a consequence of eviction proceedings

Accordingly, the motion by the plaintiff is granted. Submit Judgment.

An inquest is ordered on the issue of attorneys' fees. A copy of this order shall be served and accompany the note of issue when filed to add this matter to the Calendar Control Part of this court for inquest on the issue attorneys' fees.

So ordered.

Dated: September 19, 2007 [*6]

E N T E R:

______________________________

J. S. C.

FINAL DISPOSITION XXXNON FINAL DISPOSITION