In this summary nonpayment proceeding, petitioner ESRT Empire State Building, L.L.C. (Petitioner) moves, pursuant to CPLR 4404(b), to set aside this court's order dated February 21, 2019, which, following a nonjury trial, found in favor of respondents and dismissed the proceeding on the ground that Petitioner failed to meet its prima facie burden to prove the contents of its petition claiming that it is the successor to the landlord under the lease for the premises located at 350 Fifth Avenue, Suite 5330. At trial, Petitioner moved to amend the petition to seek rent and additional rent due as of February 1, 2019, in the amount of $152,202.21. Petitioner also sought and still seeks an attorneys' fee hearing. It is undisputed that respondent-tenant Helfand & Helfand (Tenant) vacated the premises on November 17, 2018. Tenant opposes Petitioner's motion to set aside this court's order. Upon careful consideration of all the papers submitted to the court and the parties' oral arguments, Petitioner's motion is denied as follows.

Pursuant to CPLR 4404(b), upon the motion of any party or on its own initiative, a court may set aside its decision or any judgment entered thereon, make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision, or order a new trial of a cause of action or separable issue.

In support of its motion, Petitioner submits the 13 exhibits submitted at trial, as well as new evidence not submitted at trial, which Petitioner wants this court to consider post-trial and which Petitioner argues shows that it has "standing" to maintain this proceeding. Petitioner's counsel asserts that it would have presented this new evidence at trial had respondents not waived the defense of standing. Counsel further argues that the court erred in "sua sponte" dismissing the case without giving counsel notice or the opportunity to supplement its proof of its "standing" to maintain the proceeding. Counsel bases its "standing" argument on one sentence at the end of the court's order dismissing the proceeding, wherein the court stated that "Petitioner failed to show that it has standing to maintain this proceeding" (see RPAPL 721).

The court's order dismissed the case upon Petitioner's failure to establish its prima facie case. The court gave Petitioner ample opportunity to prove its case. On the date of the trial, Petitioner insisted on going forward with the trial, although the court was amenable to adjourning the matter. After Petitioner rested on its case-in-chief, the court reserved its decision. After trial, the court found that Petitioner failed to meet its prima facie burden to show that Petitioner was authorized to maintain the proceeding under RPAPL 721 (see RPAPL 711; Charles v Walker, 48 Misc 3d 1208[A], 2015 NY Slip Op 51007[U] [Civ Ct, NY County 2015][proceeding dismissed where the petitioner failed to prove that she was authorized to maintain proceeding]; Gordian v Donovan, 6 Misc 3d 1028[A], 2004 NY Slip Op 51832[U] [Civ Ct, NY County [*2]2004][same]; see also Lawyers Tit. & Guar. Co. v Tausig, 149 Misc 594 [NY Mun Ct 1933][same], citing People ex rel. Mitchell v Simpson, 28 NY 55, 55 [1863], among others).

RPAPL 721, entitled "Person who may maintain proceeding," reads in relevant part: "The proceeding may be brought by: 1. The landlord or lessor." In its petition, which is verified by the general manager of the Empire State building rather than by an officer of Petitioner (see RPAPL 741; CPLR 30210[d][1]), Petitioner states that it "is the owner of the land and building known as the Empire State Building . . . located at 350 Fifth Avenue, New York, NY 10118." Petitioner also states that, "as successor-in-interest to Empire State Building Company, L.L.C., it is landlord pursuant to a lease dated as of April 13, 2010 . . . , as modified by the First Lease Modification Agreement, dated as of December 17, 2012 . . . between Petitioner and [Tenant]."However, the lease and the first modification agreement Petitioner submitted at trial do not show that Petitioner is the landlord. Rather, they show that Empire State Building Company L.L.C. is the landlord. Petitioner failed to submit at trial the deed or assignment agreement that it submits on its present motion to prove the petition's allegations that Petitioner is the owner of the Empire State Building and the successor-in-interest to Empire State Building Company, L.L.C.

It was Petitioner's prima facie burden to prove each of the petition's allegations by way of documentary evidence and/or competent testimony (see NY Prac, Landlord and Tenant Practice in New York § 15:582 [Jan 2019 update]). The court found and continues to find that Petitioner failed to meet its prima facie burden of establishing that it is the landlord and successor to Empire State Building Company L.L.C. (see 2004 NY Slip Op 51832[U]). The other evidence submitted at trial, including invoices from Petitioner, do not establish that Petitioner is authorized to maintain this proceeding. Moreover, as the court noted in its prior decision, Petitioner's witness's testimony is inconsistent on the issue and the court does not find the testimony to be credible.

Petitioner's waiver argument is unavailing. Even on an inquest, Petitioner is required to prove the contents of its petition. While Tenant did not move to dismiss the action, it did not admit in its answer that Petitioner was the owner, landlord, and successor to the lease; rather, Tenant denied knowledge as to those allegations and left Petitioner to its proofs (see CPLR 3018[a]). "Allegations in the petition that are part of the prima facie case and are not admitted or that are denied by the respondent must be proven by the petitioner" (Residential Landlord Tenant L. in NY § 14:7 [Nov 2018 update]).

The court does not find that any basis exists to render a new decision, order a new trial, or consider the new evidence submitted on the present motion (see CPLR 4404; see also CPLR 5015[a]).

The case law Petitioner cites in support of its arguments are either inapplicable or not binding on this court. Since the court dismissed the petition and denies Petitioner's motion to set aside the order, Petitioner's request for an attorneys' fees hearing is denied.

The foregoing constitutes the decision and order of this court.