The following papers numbered 1 to 8 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-34-6

Opposing Affidavits (Affirmations)78

Reply Affidavits (Affirmations)

Other Papers

Upon the foregoing papers, plaintiff, Yuriy Prakhin (Prakhin), moves for an order, pursuant to CPLR 3212, granting him summary judgment and setting this matter down for a trial on damages. Defendants, Fulton Towers Realty Corp., and Barberry Rose Management Company, Inc. (collectively, Fulton), cross-move for an order, pursuant to [*2]CPLR 3212, granting defendants ^[FN1] summary judgment, dismissing the plaintiff's complaint, and granting Fulton's counterclaims for rent and legal fees.

The underlying action results from an alleged breach of a commercial lease for, "the entire third floor" (the demised premises) of 2 DeKalb Avenue, Brooklyn, NY.^[FN2] Pursuant to the papers, Prakhin was to renovate the demised premises, performing all work necessary to convert the space into a "cosmetology - hairdressing business school." Upon completion of the work, plaintiff was to secure a new Certificate of Occupancy (C of O)for the legal use of the renovated space and a license to operate the school issued by the State Education Department/ The University of the State of New York (Education Department). According to the lease,

"[o]wner shall deliver the demised premises to Tenant in "as is" condition, and Owner shall have no obligation to perform any work in the Demised Premises on behalf of Tenant, except Owner shall expeditiously build a stairway next to the elevator and install a handicap ramp at the entrance."

The lease further provided that,

"[o]wner shall maintain and repair the public portions of the building, both exterior and interior. . .," and that, "[o]wner shall maintain the current elevator service and maintain and repair the elevator in reasonable condition, except for damage caused by Tenant or its agents, guests, employees or invitees."

In his instant motion, Prakhin alleges that, after expending large sums of money to complete the renovations, he was unable to secure a new C of O as a result of two municipal violations, one against the building's elevator and one against a walk-in freezer, improperly installed in the building's basement.^[FN3] In support of his allegations, Prakhin [*3]includes an "expert" affidavit from Sergey Drabkin, Ph.D, P.E. (Drabkin). Plaintiff contends that correction and removal of these violations were Fulton's responsibility as each is within parts of the building under the control of either the defendant or other tenants. Prakhin alleges that Fulton's failure to act constitutes a breach of several covenants and doctrines relating to real estate and that defendant's inaction triggered the lease provision abating plaintiff's duty to pay rent. Based upon these contentions, Prakhin seeks summary judgment, requesting that this matter be set down for a trial on damages.

In opposition, Fulton alleges that the express language of the lease fully indemnifies the landlord from all of plaintiff's claims, that the plaintiff did take possession of the demised premises and, any reasons for the plaintiff's inability to open his school are solely a result of his own largess. Defendant alleges that the plaintiff is not entitled to any rent abatement because the abatement provision is triggered only if Prakhin's inability to open his school resulted from (1) defendant's failed to complete the work it expressly agreed to perform, to wit, the "stairway next to the elevator and install a handicap ramp at the entrance" or "because the lobby [was] not in useable condition." Defendant contends that since the work it was responsible to perform was timely completed and the lobby was in useable condition, Prakhin's decision to stop paying rent is a breach of the lease, entitling Fulton to summary judgment and payment for back rent. As a result of prevailing on the rent issue, Fulton demands reasonable attorney's fees in connection therewith.

With respect to the two violations, Fulton contends that plaintiff was in the best position to contact the elevator company to make repairs since plaintiff was allegedly given control over the entire premises. Defendant alleges it cannot be held accountable because they did not act fast enough to correct the violation. Further, Fulton asserts that it is not liable for any loss to Prakhin due to the walk-in freezer violation because the express language of the lease indemnifies the defendant against any loss or damage resulting from acts or omissions of other tenants within the building unless such loss or damage is a result of the defendant's gross negligence or willful failure to act. Defendant points to a prior order of the court, dated May 7, 2012, wherein Fulton was awarded partial summary judgment, striking the plaintiff's claims for consequential damages unless Prakhin could prove Fulton's actions were "willful." As the plaintiff cannot make his initial burden on willfulness and the freezer violation was caused by the first floor tenant, Fulton contends that it is shielded from any liability for any violations.

On its cross motion for summary judgment, Fulton reiterates several reasons why the plaintiff has failed to meet his prima facie burden on summary judgment as well as why plaintiff's causes of action must be dismissed. Further, Fulton avers that a New York City Fire Department (FDNY) violation on areas exclusively controlled by Prakhin are what prevented the plaintiff from obtaining his license to operate. In support, Fulton offers a letter from the Education Department confirming that Prakhin's license application was denied because it was not perfected and the facility "was recently [*4]disapproved by the FDNY" in the form of a written violation. Since this violation was directed at the second floor hallway (within the exclusive control of the plaintiff at the time of the violation, pursuant to the express terms of the lease) and the third floor (the demised premises) plaintiff's inability to obtain his operating license was not caused by Fulton thus, the full amount of back rent is due and payable. Fulton proffers that since Prakhin has no legal basis to have withheld rent, he is in breach of the lease, entitling Fulton summary judgment. Citing to the terms of the lease, as the prevailing party, defendant further demands reasonable attorney's fees in connection with its defense of the plaintiff's action.

In opposition to the defendant's motion, Prakhin admits his control of the second floor hallways as well as the demised premises, however, makes no direct reference to the FDNY violation, nor his inability to obtain an operating license. Prakhin reiterates that it was the defendant's responsibility to clear the two municipal violations and that Fulton's inaction prevented him from obtaining a new C of O and opening his school.

Although Prakhin alleges that the two municipal violations prevented him from securing a new C of O and opening his school, his only evidence in support amounts to the affidavit of his "expert," Drabkin. "An expert must possess sufficient skill, training, education, knowledge, or experience from which it may reasonably be inferred that the information the expert imparts and any opinion that the expert states is reliable" (Matott v Ward, 48 NY2d 455 [1979]; see Applewhite v Accuhealth, Inc., 81 AD3d 94 [2010]; LaMarque v North Shore University Hosp., 227 AD2d 594 [1996]). Drabkin contends he [*5]is "a professional engineer, licensed in the State of New York, Lic. No.70466," yet offers no other evidence of his qualifications to offer an expert opinion on the issues herein presented nor evidence of prior practical experience in the field upon which to base his opinion (see Price ex rel. Price v New York City Housing Auth., 92 NY2d 553 [1998]; Caprara v Chrysler Corp., 52 NY2d 114 [1981]). Indeed, Drabkin failed to lay any other "foundation . . . tending to support the reliability of" his opinion (see Applewhite, supra). Drabkin offers no documentary evidence to support his speculative assertion that these violations, or any other type of violation, prevent the issuance of a new C of O, altering the legal the use of a particular portion of a building already in possession of a duly issued and active C of O. An expert may not merely rely on his or her status as an expert to offer an opinion. He must divulge the protocols and methods he used to arrive at the conclusions he reached (see generally Torres v West Street Realty, Inc., 21 AD3d 718 [2005]). Drabkin opines, "[f]or a Certificate of Occupancy to be issued by the Department of Buildings, there should not be any active violations listed . . ." (emphasis added). An expert may not guess or speculate in drawing a conclusion (see Quinn v Artcraft Const., Inc., 203 AD2d 444 [1994]). Drabkin's affidavit then lists the history and current status of the building's violations. In the final two paragraphs appearing after this list, Drabkin again opines, in conclusory fashion,

"[s]tarting from 12/2008 till this time active violations issued for the building have prevented the plaintiff from getting the CO. Certificate of Occupancy cannot be issued now because of two currently existing active violations" and "[u]ntil the aforementioned issues are resolved the Plaintiff will be unable to obtain a permanent Certificate of Occupancy."

Drabkin's affidavit again provides no data to indicate the basis for his conclusion. The affidavit is, therefore, speculative, conclusory, and lacking in probative value, thus, it can not support Prakhin's motion for summary judgment (see Paladino v Time Warner Cable of NYC, 16 AD3d 646 [2005]; Youthkins v Cascio, 298 AD2d 386, 387 [2nd Dept 2002], affd 99 NY2d 638 [2003]).

Moreover, as noted above, according to the Department of Education's letter, Prakhin's application for an operating license was denied, in part, because of the FDNY violation he received for areas of the building that the plaintiff has admitted were within his custody and control. Assuming, for the sake of argument, that Prakhin had met his initial burden, his failure to discuss or even address Fulton's documentary evidence would have created a material issue of fact as to what extent the plaintiff's own actions contributed to his inability to open his school, also precluding a grant of summary judgment.

Since the plaintiff failed to meet its initial burden of demonstrating entitlement to judgment as a matter of law (see Alvarez, 68 NY2d at 324), the burden never shifted to defendant to establish the existence of a material fact which would require a trial (see [*6]Greenberg, 167 AD2d at 291). As a result, the plaintiff's motion is denied without regard to the sufficiency of the Fulton's opposition papers (see Winegrad, 64 NY2d at 853; Hughes v Cai, 31 AD3d at 385-386; Hanna v Alverado,16 AD3d 624 [2005]).

The Defendant's Motion for Summary Judgment

Fulton alleges it is entitled to summary judgment because, among other reasons, the plaintiff failed to make his initial burden on his motion, failed to prove willfulness on defendant's part, failed to prove loss of good will, and gives several reasons why plaintiff's "causes of action must be dismissed and summary judgment granted to the [d]efendants." In sum, Fulton's argument offers conclusory allegations regarding the sufficiency of Prakhin's proof, thus, defendant has misapprehended its burden on the instant motion for summary judgment. Whether or not the plaintiff has evidentiary support for his allegations is irrelevant for this inquiry. It is Fulton, as the movant, who must set forth admissible evidence effectively removing any material questions of fact, thus entitling it to judgment as a matter of law; anything less requires a denial of the motion (see Coley v Michelin Tire Corp., 99 AD2d 795, 796 [1984]). Fulton may not seek summary judgment by merely pointing to evidentiary gaps in the plaintiff's proof (see Nationwide Prop. Cas. v Nestor, 6 AD3d 409 [2004]) or offering conclusory allegations as such allegations may not serve as a predicate for granting summary judgment (see Zuckerman at 563; Coley at 796).

Moreover, a material question of fact exists regarding Fulton's actions with regard to the municipal violations. In particular, Fulton posits,

"[t]he plain meaning of the words used, which are unambiguous, read in the context of the lease paragraph 47, clearly shows that liability for elevator violations or damages flowing from them were not contemplated by the parties to the Lease."

However, pursuant to the lease at paragraph four, line one,

"[o]wner shall maintain and repair the public portions of the building, both exterior and interior . . ."

Pursuant to the lease rider, paragraph forty-six,

"[o]wner shall maintain the current elevator service and maintain and repair the elevator in reasonable condition, except for damage caused by Tenant or its agents, guests, employees or invitees."

The elevator in the subject building was not a private elevator servicing the plaintiff, it was a means of mobility for all tenants within the premises. In fact, as the moving papers confirm, the elevator violation was caused by the actions of the first floor tenant during his improper installation of the walk-in freezer which resulted in the other municipal violation. According to the plain language of the lease, the defendant assumed liability for maintaining the "current" elevator service, therefore, any subsequent violation issued [*7]against that elevator alters its "current" state. Once such an alteration acts to the detriment of any lawful tenant, the defendant's are duty bound to take remedial action. As confirmed by this court's May 7, 2012 order, "[d]efendants to correct and remove elevator and walk-in freezer violations." Although the defendant contends that in should not be held liable because it did not act "quickly enough" to remedy the municipal violations, such an assumption is not supported by the record before the court. In sum, questions regarding any alleged "willfulness" or "gross negligence" on Fulton's part remain outstanding, further preventing an award of summary judgment.

Since the defendant has failed to meet its initial burden of demonstrating entitlement to judgment as a matter of law, that burden never shifted to plaintiff to establish the existence of a material issue of fact which would require a trial (see Greenberg, 167 AD2d at 291). Accordingly, the defendant's motion is denied without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad, 64 NY2d at 853; Hughes, 31 AD3d at 386; Hanna, 16 AD3d at 624).