This summary nonpayment proceeding was commenced by 233rd STREET PARTNERSHIP, L.P. (Petitioner) against UPTOWN SPORTS COMPLEX(USC) and ERNIES ALEMAIS(EA) (collectively "Respondents") seeking to recover possession 170 West 233 Street - Sports Complex, Bronx, NY 10463 (Subject Premises).

The court takes judicial notice of a prior summary nonpayment proceeding and a pending [*2]supreme court action related to the Subject Premises.

Petitioner commenced an action against EA in Supreme Court, Bronx County, pursuant to a summons and complaint dated December 11, 2016 (Ex G). Petitioner asserted six causes of action based on breach of lease by EA's failure to pay water and sewer charges, real estate taxes, late fees, additional security, and attorneys' fees.

EA appeared by counsel and filed an answer dated April 17, 2017, asserting lack of personal jurisdiction, failure to name a necessary party and waiver.There does not appear to have been any further proceedings in said action.

A prior summary nonpayment proceeding was commenced by Petitioner against EA and USC under Index Number 901326/15. The petition in said proceeding was dated July 30, 2015 and sought $42,945.28 in rent and additional rent through July 2015. EA appeared in said proceeding pro se and the parties entered into a stipulation on September 17, 2015, providing for entry of a final judgment as against "Ernies Alemais aka Uptown Sports Complex" in the amount of $64,473.49. The warrant of eviction issued December 23, 2015. Petitioner's records indicate said judgment was satisfied as of February 16, 2016 (Ex 3).

Petitioner issued a three day rent demand dated October 17, 2017, seeking $78,213.18, for rent for September and October, as well as water/sewer charges, insurances and additional sums. The base monthly rent is $18,908.72. The petition was filed on November 14, 2017. The demand, the notice of petition and petition were served by delivery to an employee at the Subject Premises during business hours. Proof of service for the Notice of Petition and Petition was filed on November 22, 2017.

Respondents appeared by counsel on December 18, 2017, and filed an answer asserting affirmative defenses including waiver, collateral estoppel, lack of personal jurisdiction and failure to name a necessary party.

The proceeding was initially returnable January 2, 2018. On that date, Respondent's counsel moved for dismissal pursuant to CPLR§3211(a)(4) based on a prior action pending in Supreme Court. On January 23, 2018, the court (Doherty, J) denied the motion finding that the relief sought in the two matters was not the same and the parties were not the same, and set a trial date for February 7, 2014.

The court held a bench trial on February 7, 2018.^[FN1] The proceeding was adjourned to February 14, 2018, to afford counsel an opportunity to submit post trial memoranda. On [*3]February 14, 2018, Respondents submitted a post trial memo, and the court reserved decision.

Petitioner is the owner of 170 West 233rd Street, Bronx, New York, pursuant to a deed dated May 18, 1992 (Ex 1).

Petitioner is the Lessor and EA the lessee of the Subject Premises , pursuant to a lease dated March 25, 2008, for a ten year term through and including March 31, 2018 (Ex 2). The name "Uptown Sports" is written in on the top of the first page of the lease right before EA's name. The lease is signed by EA as tenant. There is no signature anywhere in the lease or rider on behalf of USC nor even a place designated for such a signature.

The court takes judicial notice of the New York State Department of State website which lists Uptown Sports Complex Corporation as a domestic corporation with its principal office located at the Subject Premises and listing Andres Diaz (Diaz) as CEO. ^[FN2] The initial filing date was March 27, 2008.

Paragraph two of the petition asserts that Respondents are the tenants in possession pursuant to a written lease. Respondents' answer, verified by Diaz, asserts that Respondents lack sufficient knowledge to form a belief as to said allegation. Respondents' eleventh affirmative defense states that neither of the Respondents is the tenant of record, yet Respondents offered no proof as to the identity of any other alleged tenant. Additionally no party other than the two named Respondents appeared herein or is represented by counsel.

The court finds based on the lease that EA is the sole tenant of record and USC is an occupant/undertenant. USC is actually named Uptown Sports Complex Corporation and the caption is amended to conform to USC's proper name and status.

Respondents' post trial memoranda places a great emphasis on the fact that out of the thirteen pages consisting of the lease and rider, EA's initials are missing on the bottom of two pages. The court finds this irregularity in sufficient to preclude enforcement of any portion of the lease and rider, particularly in light of the failure of EA to offer any testimony in support of this issue or raise this issue with any specificity as a defense in its answer.

Respondents' motion to dismiss at the close of Petitioner's case is denied, other than the dismissal of the insurance claims. EA offered no evidence in support of any of Respondents claims. To the extent Respondents argue the demand is defective, again there was no testimony from EA on this issue, and USC as an undertenant has no right to raise the claim.

Petitioner submitted a tenant ledger in evidence (Ex 3). Petitioner's agent Johanna Ramos (JR) testified at trial. JR testified that Respondent owes $63,103.61 in base rent at the rate of $18908.72 per month.

The ledger also reflects arrears of $11,361.75 for Real Estate Taxes, and $18,921.40 in late fees.

JR testified that Respondents remain in possession of the Subject Premises and continue to operate the business there.

Petitioner submitted three water/sewer statements into evidence dated May 1, 2017, August 1, 2017, and November 1, 2017 (Ex 4a-c). JR mailed these statements to Respondents on or about the dates indicated. The most recent statement dated November 1, 2017 (Ex 4a) shows an outstanding amount of $23,042.46 . The statement details the bill received by Petitioner, the date covered by the bill and assesses a charge at 13% of the billed amount. The statement also includes interest charges. $18,885.02 of the amount is for water charges and $4157.42 is for late fees.

JR also testified that there was $35,416.54 due for 2017-2018 taxes, billed on June 30, 2017 at a rate of $2951.38 per month (Ex 5). JR testified that payments were applied to the oldest arrears, and that while Respondents made a payment of $20,655.00 in November, this was applied to water and sewer charges previously billed for a period covering November 1, 2015 to May 1, 2017.

A statement showing arrears due through February 1, 2018 was submitted in evidence by Petitioner (Ex 6).

Petitioner requested a judgment in the amount of $129,258.75, and moved to amend the petition to date. The court granted the motion to amend to date for all charges except the Real Estate Taxes. The statement for the Real Estate taxes was dated June 30, 2017 (Ex 5), however no sums for Real Estate Taxes were sought either in the three day demand or the petition, even though both were served months after the statement.

As noted above, at the close of Petitioner's case, Respondents moved for dismissal. The court reserved decision on the motion, except as to insurance charges. Petitioner had not presented any evidence regarding the insurance charges and as to the insurance charges, Respondents motion to dismiss was granted, and said claim was dismissed without prejudice.

EA did not appear or testify. Diaz was called as a witness by Respondents. Diaz testified he has been associated with the business for ten years, and that he was a partner in USC. Diaz testified the only water used by Respondents was for the bathroom, and that Respondents first started to receive water bills in 2015. Diaz testified that when he first received the bills, he asked Brian Popper (BP), how he arrived at the amount charged and whether Respondents could install their own water meters. Diaz testified that BP denied him permission to put in his own meters.

Diaz testified that he paid three months security at the inception of the lease, and in April 2008, he paid an additional month in exchange for an additional month of free rent. In September 2017, BP deducted $6,669.85 from the rent paid to Petitioner, pursuant to a demand letter issued by a City Marshall (Ex F) to satisfy a judgment that the City of New York had obtained against Petitioner, but which they sought to execute as against USC (Ex D). Diaz testified he believed the payment was for an elevator violation and it was not related to USC's business.

Diaz put in evidence copies of two payments submitted by USC in September 2017: one was for $21,860.10, designated as payment for October 2017 rent, and cashed September 26, 2017 (Ex E); and another was a cashiers check dated September 9, 2017,for $16,834.65 designated for September rent and real estate taxes (Ex B).

As pertains to water and sewage charges, paragraph 28 of the lease provides that if EA " ... uses or consumes water for any purpose in addition to ordinary lavatory purposes ( of which fact tenant constitutes Owner to be the sole judge) Tenant shall install a water meter and thereby measures Tenant's water consumption for all purposes."

As noted EA did not testify at the trial only Diaz did. Diaz did testify he asked BP for permission to install a meter and was denied same, but as neither Diaz nor USC are the tenants of record, this is largely irrelevant. The provisions further provides:

Tenant covenants and agrees to pay the sewer rent, charge or any other tax, rent, levy or charge which now or hereafter is assessed, imposed or a lien upon the demised premises or the realty of which they are a part pursuant to law, order or regulation made or issued in connection with the use, consumption, maintenance or supply of water, water system or sewage or sewage connection or system. The bill rendered by Owner shall be payable by tenant as additional rent. If the building or demised building or any part thereof be supplied with water through a meter through which water is also supplied to other premises Tenant shall pay to owner as additional rent, on the first day of each month, 25% of the total meter charges , as Tenant's portion.

Although the lease calls for 25% of the charges per building meter to be assessed against EA, Petitioner has only billed and sued for 13% of said charges. Based on the January 29, 2018 statement (Ex 6) all but $2315.28 was satisfied by a payment submitted in November 2017.

Thus Petitioner is entitled to a judgment for $2315.28 for water and sewage through February 2018.

To the extent that Respondents seek dismissal of this amount based on a claim of waiver based on Diaz' testimony that Petitioner only started billing for these sums three years ago, the court notes that such a defense is precluded by paragraph 24 of the lease.

Petitioner also sued for $3,387.17 in interest on the water sewer charges, alleged to have been calculated at 1.5%. Paragraph 62 of the rider does provide for interest on late payments for rent and additional rent. Water and Sewer are defined as additional rent under the lease in paragraph 28, and paragraph 44 of the rider defines all payments other than fixed rent to be additional rent.

However, it is unclear how Petitioner arrived a rate of 1.5%. Paragraph 64 of the rider provides for interest at Prime rate plus 2%. Petitioner presented no evidence as to how they arrived at these sums or what prime rate was used. This was also not addressed by JR in her testimony.

Based on the foregoing, Petitioner's claims for interest charges are dismissed without prejudice.

There was no dispute at trial about what payments were made and received.

All rent due through September 2015, was accounted for in the prior summary nonpayment proceeding. From October 2015 through February 2018, there were base rent charges due under the lease totaling,$527,000.08 and payments for base rent totaling [*4]$446,745.50, resulting in a remaining balance due in base rent through February 2018 of $80,254.58.

To the extent USC seeks a set off in the rent for September based on payment in accordance with a notice of garnishment by the Marshall (Ex D & E), and putting aside that USC is not the tenant of record, any such claim is precluded by the terms of the lease which require that the rent "without any set off or deduction whatsoever."

Petitioner is entitled to a judgment for base rent totaling $80,254.58.

Petitioner seeks $18,921.60 for late fees for base rent for a periods between October 2015 and January 2018.

Article 62 of the rider to the parties' lease provides that if EA fails to pay any sum for fixed rent or additional rent within five days of the due date then interest shall accrue along with a late charge of five cents for each dollar overdue, and that said late fee shall be paid by the tenant at the time of the delinquent sum. The lease provides that rent is due on the first of the month.

Petitioner is suing for late fees in the amount of $945.44 per month for each month that was paid late. All the months for which the charge is assessed were paid late, except for October 2017, which Petitioner credited as paid in September 2017. Based on the foregoing, Petitioner is entitled to late fees on the base monthly rent in an amount totaling $17,976.16.

Paragraph 31 of the lease states that Petitioner had $26,600.00 as security at the beginning of the lease.

Paragraph 71 of the rider provides that on every anniversary date, EA shall deposit additional security to be held by Petitioner pursuant to Article 31. So that the amount held is equal to three times the monthly rent payable during that year.

Paragraph 82 of the rider provides that Petitioner will give EA one month extra of free rent for a total of five months provided Tenant adds one additional month of security within 30 days of the lease signing.

Diaz testified that said payment was made but offered no proof of same.

Petitioner offered no evidence on how much security is being held beyond what was on deposit at the time of the initial lease. No documentary evidence was offered on this issue and Petitioner's only witness, JR testified that she did not know how much security was being held by Petitioner. Based on this record it is not possible for the court to determine how much additional security is due, and the claim for additional security is dismissed without prejudice.

The caption is amended to reflect that Uptown Sports Complex Corp. is substituted as a respondent undertenant to correct the name and status of USC.

Petitioner is entitled to a final judgment of possession as against Uptown Sports Complex Corp and a final judgment of money and possession as against Ernies Alemais in the amount of $100,546.02. Issuance of the warrant is stayed five days for payment.

This constitutes the decision and order of this court.