In this commercial non-payment proceeding, Petitioner requests a final judgment of eviction, awarding Petitioner possession of the premises known as: "Broadway Mall, Space No.665, Hicksville, New York." Petitioner also demands a money judgment in the amount of $33,699.95 which covers rent and additional rent, as well as use and occupancy fees and legal fees.

Petitioner moves to amend the petition to include additional rent owed, bringing the total to $52,104.16, as well as a motion for summary judgment in Petitioner's favor for this amount and a judgment of possession and a warrant of eviction.

The Petitioner is the fee owner and landlord of the subject premises. The Respondent is a commercial tenant at the premises, having entered into a written lease on March 17, 2004. The lease stated that Respondent needed to pay a base rent of $4,568.00 per month (plus additional rents). This year, Respondent defaulted in the payment of rent due and the Petitioner demanded the rent orally and in writing by a Ten Day Notice of Default on May 3, 2010. This notice was personally served upon the Respondent. Respondent never cured or paid rent to Petitioner. Under the lease, Petitioner contends it is entitled to possession of the subject premises as well as late charges and legal fees pursuant to the lease. Petitioner is also seeking the eviction of the Respondent from the premises. [*2]

Originally, Respondent denied the amount of rent owed per month, defaulting on the payments, that the Ten Day Notice was served in accordance of CPLR 741, and that Petitioner is now entitled to the premises. Respondent then filed a counterclaim, alleging that under the lease, Respondent had a right of assignment and Petitioner's actions in preventing an assignment in April 2010 breached the implied covenants of good faith and fair dealing. Respondent alleges that by preventing an assignment of the lease, Petitioner deprived Respondent of its right to receive benefits under the lease. Respondent asks for $200,000 in damages in its counterclaim.

Petitioner opposes the counterclaim and is asking this Court to dismiss it, stating that the counterclaim should be separate from this current non-payment summary proceeding. Petitioner also asked for summary judgment against Respondent and to include additional rent owed to Petitioner for use and occupancy.

Respondent contends that the counterclaim is so intertwined with the proceeding brought against the Respondent, it needs to be addressed during the summary proceeding rather than in a separate action. It is Respondent's attorney's belief that this summary judgment motion should be denied because of the counterclaim.

Petitioner maintains that the counterclaim should be asserted in a separate action from this summary proceeding because Respondent waived the right to assert the counterclaim in Section 16.03 of the lease, which states: "Tenant waives right to assert any non-compulsory counterclaim in connection with any action by Landlord for possession of the [p]remises or collection of rents under this [l]ease."

Commercial leases may have provisions that preclude tenants from asserting counter-claims in summary proceedings. Bomze v. Jaybee Photo Suppliers, 117 Misc 2d 957, 460 NYS2d 862 (App. Term, 1st Dep't 1980). Courts, including this one, have generally enforced such lease provisions. Titleserv v. Zenobio, 210 AD2d 310, 619 NYS2d 768 (2nd Dep't 1994) (quotations omitted). See also Bomze v. Jaybee Photo Suppliers, supra ; Mid-Island Shopping Plaza Co. v. Cutler, 112 AD2d 405). A tenant is precluded from asserting a counterclaim in a summary proceeding because to allow it would delay the summary proceeding. Titleserv at 311. However, the tenant can still have its day in court and assert the counterclaim in a separate plenary action. Amazon Management Corp. v. Paff, 166 Misc. 438, 1 NYS2d 976 (App. Term 1983).

Counterclaims can be allowed to be consolidated into the summary proceedings, even if there was a waiver provision, only if: "they are in essence a defense to the landlord's claim or are so 'inextricably intertwined' with a defense as to become part and parcel of that defense." Rasch's Landlord and Tenant, section 43:37 (citing Committed Community Associates v. Croswell, 171 Misc, 2d 340, 659 NYS2d 150 (Dist. Ct. 1971)). However, "a commercial tenant's counterclaim for damages ascribed to a landlord's negligence, mismanagement, or breach of contract, will be severed as unrelated to the disposition of the landlord's rent claim." Finkelstein and Ferrara, Landlord and Tenant Practice in New York, section 14:230. [*3]

Respondent claims that its counterclaim is so intertwined with the claims made by Petitioner for rent and added rent that this Court must determine the merits of the Counterclaim in order to decide this case. Unfortunately, this was stated only in Respondent's attorney's affirmation of opposition. This affirmation is worthless as Respondent's attorney does not have personal knowledge of the facts that he is asserting. Instead, he makes conclusory statements without any evidence to support them. Furthermore, the counterclaim is based on a failure to approve an assignment (a breach of contract), which is unrelated to the non-payment proceeding. Thus, there is no reason to have this counterclaim be consolidated with this summary proceeding.

Regarding Petitioner's motion for summary judgment, there are no issues of material fact. Respondent provides no discussion of why it does not owe rent to Petitioner. Respondent also does not contest Petitioner's non-payment proceeding against Respondent. Respondent does not contest the requested amendment to include rent and added rent increasing the total money sought. Furthermore, Respondent's claim that the Petitioner did not provide the Court with enough information regarding how the rent amount owed was calculated is rejected. Petitioner provided the Court with the affidavit of Mei Cheng, the managing agent of Petitioner, who provides an adequate basis for the claims being made. This affidavit is supported by the business records maintained in the ordinary course of business

Petitioner's motion to amend the amount sought is granted. Petitioner's motion to grant summary judgment in their favor is also granted as there are no issues of material fact raised by Respondent regarding this amount owed. Respondent's counterclaim is dismissed without prejudice and can be brought against Petitioner in a separate plenary action. Petitioner is awarded a judgment of possession with no stay of the warrant and a money judgment in the sum of $52,104.16.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated:October 18, 2010

CC:Berkman, Henoch, Peterson, Peddy & Fenchel, P.C.

Warren M. Berger, Esq.