Campos v David Jared Realty Co., LLC (2008 NY Slip Op 51607(U))

Campos v David Jared Realty Co., LLC

2008 NY Slip Op 51607(U) [20 Misc 3d 1124(A)]

Decided on June 30, 2008

Supreme Court, Suffolk County

Farneti, 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This opinion is uncorrected and will not be published in the printed Official Reports.

ORDERED that this motion by plaintiff for an Order: (1) staying and tolling the expiration of the cure period set forth in the parties' lease agreement dated October 22, 2007 ("Lease"); (2) directing defendant to accept plaintiff's check in the amount of $6,441.65 for taxes and insurance, delivered to defendant's counsel on or about February 5, 2008, and rejected by counsel on or about the same date; and (3) reinstating the option to purchase set forth in paragraph sixty-eight of the Rider to Lease, is hereby DENIED for the reasons set forth hereinafter; and it is further

ORDERED that this cross-motion by defendant for an Order, pursuant to CPLR 3211(a)(1) and (7), dismissing plaintiff's complaint for the failure to state a claim [*2]upon which relief can be granted, and based upon documentary evidence, is hereby GRANTED as provided hereinafter; and it is further

ORDERED that this cross-motion by plaintiff for an Order, pursuant to CPLR 3211(c), treating defendant's cross-motion to dismiss pursuant to CPLR 3211 as a motion for summary judgment pursuant to CPLR 3212, and upon such treatment, granting summary judgment in favor of plaintiff directing defendant to accept plaintiff's check in the amount of $6,441.65 for taxes and insurance, and reinstating the option to purchase set forth in paragraph sixty-eight of the Rider to Lease, is hereby GRANTED solely to the extent provided hereinafter.

On or about October 22, 2007, the parties entered into the subject Lease in connection with the real property commonly known as 51 Sprague Street, Amityville, New York (the "premises"). Defendant owns the premises and plaintiff is the tenant therein. Paragraph sixty-eight of the Rider to Lease contains an option for plaintiff to purchase the premises upon certain terms and conditions.

Paragraphs 47B and 51 of the Rider to Lease require plaintiff to pay fire insurance premiums and tax payments within ten (10) days of the date defendant/landlord renders a bill. As set forth in paragraph 27 of the Lease, a bill is deemed rendered two days after mailing. Defendant alleges that it mailed a bill to plaintiff for taxes and insurance in the amount of $6,441.65 on January 15, 2008 by certified mail/return receipt requested, and therefore defendant had until January 28, 2008 to make payment (January 27, 2008 was a Sunday). However, plaintiff alleges that he never received the bill. Instead, plaintiff claims that on or about February 1, 2008, he received correspondence from counsel for defendant indicating that he had defaulted under the Lease by failing to timely pay the taxes and insurance, and as such, the option to purchase had terminated. Plaintiff alleges that he immediately hand delivered a check in the amount of $6,441.65 to defendant, which was rejected by correspondence from defendant's counsel dated February 5, 2008.

Plaintiff has now filed the instant action on or about February 8, 2008, by Order to Show Cause and summons and complaint, seeking a declaratory judgment that the tax and insurance bill dated January 15, 2008 is null and void because it was not properly addressed to the tenant on the Lease, and that under "basic equitable principals," defendant is obligated to accept the check hand delivered on February 5, 2008. Plaintiff argues that the bill is null and void as it was addressed to "ALFREDO'S AUTO COLLISION, INC." and not to "ALFREDO CAMPOS d/b/a ALFREDO'S AUTO COLLISION, INC.," the lessee/tenant recited in the Lease. Further, plaintiff argues that equity should intervene under these circumstances to prevent a forfeiture, as plaintiff did not initially received the bill, nor intentionally fail to pay the bill; plaintiff attempted to pay the bill as soon as he received it; and plaintiff would suffer an undue hardship if his option to purchase is forfeited, as he will lose a business which is the sole means of his support. [*3]

Defendant has filed a motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7). Defendant initially argues that plaintiff's motion for injunctive relief must be denied as it seeks the ultimate relief sought in this action (see e.g. SHS Baisley, LLC v Res Land, Inc., 18 AD3d 727 [2005]). Further, defendant informs the Court that the Lease, including the purchase option, was a result of negotiations and a settlement reached in a prior action involving the parties. Defendant alleges that if the purchase option did not automatically terminate upon a default by plaintiff, defendant would not have agreed to the settlement or entered into the subject Lease, which is of short duration (8 months, 10 days). Defendant argues that plaintiff does not deny failing to timely pay the taxes and insurance due under the Lease, or that the purchase option terminated when the bills were not timely paid. In addition, although plaintiff seeks a tolling of the cure period set forth in the Lease, defendant indicates that the Lease contains no such cure period.

Defendant alleges that due to plaintiff's history of repeated rent defaults, which resulted in numerous landlord/tenant court proceedings, defendant insisted that the purchase option unequivocally provide that the option would automatically terminate if plaintiff was late in making any payments due under the Lease, "even by one second." Defendant argues that plaintiff did not receive the subject tax bill because he refused to claim or sign for the certified mailing, and refused to retrieve the certified mail from the post office. In support thereof, defendant has submitted a copy of the certified mail receipt; the envelope addressed to plaintiff marked "unclaimed" by the post office, as well as an indication that delivery of the envelope was attempted on January 16, January 22, and January 31; and a printout from the United States Post Office website indicating that delivery was attempted at 2:03 p.m. on January 16, 2008, and a notice was left. As such, defendant argues that plaintiff's own actions in failing to accept delivery of the certified mailing caused the termination of the purchase option. Moreover, defendant alleges that plaintiff's claim that the bill was not addressed to the proper party is devoid of merit, as it was addressed to the tenant of the premises at the proper address, and by not signing for it, plaintiff had no knowledge of how the statement inside was addressed. With respect to plaintiff's forfeiture argument, defendant argues that plaintiff's actions have not resulted in termination of the Lease, but rather only termination of the purchase option.

Plaintiff has subsequently filed a cross-motion, pursuant to CPLR 3211(c), to treat defendant's cross-motion to dismiss pursuant to CPLR 3211 as a motion for summary judgment. Upon such treatment, plaintiff seeks an Order granting summary judgment in favor of plaintiff directing defendant to accept plaintiff's check in the amount of $6,441.65 for taxes and insurance, and reinstating plaintiff's option to purchase. Plaintiff reiterates the arguments set forth in his initial motion, and further argues that as facts herein are not in dispute, summary judgment in plaintiff's favor is warranted.

As plaintiff has now moved by notice of cross-motion to treat defendant's cross-motion as one for summary judgment, the Court finds that the parties have received "adequate notice" that plaintiff is "deliberately charting a summary judgment [*4]course" (see CPLR 3211[c]; Mihlovan v Grozavu, 72 NY2d 506 [1988]; Four Seasons Hotels v Vinnik, 127 AD2d 310 [1987]). Accordingly, defendant's cross-motion to dismiss shall now be considered as one for summary judgment.

On a motion for summary judgment, the test to be applied is whether or not triable issues of fact exist or whether on the proof submitted a court may grant judgment to a party as a matter of law (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Andre v Pomeroy, 35 NY2d 361 [1974]; Akseizer v Kramer, 265 AD2d 356 [1999]). It is well-settled that a proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidentiary proof in admissible form to demonstrate the absence of any material issues of fact (Dempster v Overview Equities, Inc., 4 AD3d 495 [2004]; Washington v Community Mut. Sav. Bank, 308 AD2d 444 [2003]; Tessier v NY City Health and Hosps. Corp., 177 AD2d 626 [1991]). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Gong v Joni, 294 AD2d 648 [2002]; Romano v St. Vincent's Med. Ctr., 178 AD2d 467 [1991]; Commrs. of the State Ins. Fund v Photocircuits Corp., 2 Misc 3d 300 [Sup Ct, NY County 2003]).

In the case at bar, the Court finds that defendant has made a prima facie showing of entitlement to judgment as a matter of law (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Andre v Pomeroy, 35 NY2d 361, supra; Rodriguez v NY City Transit Auth., 286 AD2d 680 [2001]), and plaintiff has not produced evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of this action (Alvarez v Prospect Hosp., 68 NY2d 320, supra). Plaintiff has not disputed any of the allegations of defendant; in fact, plaintiff concedes the facts as presented. However, plaintiff requests that this Court exercise its equitable powers and excuse plaintiff's untimeliness in order to avoid a forfeiture.

Paragraph sixty-eight of the Rider to Lease, entitled "Option to Purchase," provides in pertinent part:

A review of the foregoing paragraph reveals that the term "TIME BEING OF THE ESSENCE" appears thrice therein, in capital letters and boldface type, and that no cure period is provided in the event of a default by plaintiff. As discussed hereinabove, and of significant import to the Court, the Lease and the terms of the purchase option were a result of negotiations and a settlement in a prior action wherein the parties were represented by counsel. Defendant claims that plaintiff's history of repeated rent defaults resulted in at least three landlord/tenant proceedings, and served as the basis for the strict language in the purchase option. Plaintiff has not refuted these claims by defendant. Although plaintiff claims to have never received the certified mailing, the documentation submitted by defendant indicates that the post office attempted to deliver the envelope on three separate occasions, all to no avail. In addition, the post office left a notice at the premises on January 16, 2008, indicating that the envelope could be picked up at the post office. Plaintiff failed to respond to this notice. Plaintiff's speculation that the notice must have been "mixed in with junk mail," is unpersuasive.

Furthermore, plaintiff's argument that the bill was a nullity because it was improperly addressed, and therefore the purchase option never terminated, is similarly unpersuasive. The terms of paragraph sixty-eight specifically provide that plaintiff shall have the option to purchase as long as plaintiff had not defaulted in any of his obligations under the terms of this Lease, including the making of all payments due thereunder, "without requiring any notices." As such, the provision of notice to plaintiff was not a condition precedent to the termination of the purchase option.

In view of the foregoing, plaintiff's motion and cross-motion are [*6]GRANTED solely to the extent that defendant's motion is treated as one for summary judgment, and upon such treatment, and defendant's motion for summary judgment dismissing plaintiff's complaint is GRANTED.

The foregoing constitutes the decision and Order of the Court.

Dated: June 30, 2008