Recitation as Required by CPLR §2219(a): The following papers were read on this Motion and Cross-Motion:

In this commercial landlord-tenant non-payment proceeding, petitioner Webster 204 Realty, LLC ("landlord") moves (a) to restore this matter to the calendar; (b) pursuant to CPLR § 3211(b) to strike the first, second, sixth, and seventh affirmative defenses of respondent Los Muchachos Restaurant Corp. ("tenant"); and (c) for an order directing tenant to pay outstanding and prospective post-petition use and occupancy. Tenant opposes landlord's motion and cross-moves pursuant to CPLR § 3212 for summary judgment dismissing the complaint in its entirety.

That part of landlord's motion seeking to restore this matter to the calendar is granted.

The proponent of a motion for summary judgment bears the initial burden of proffering admissible evidence sufficient to demonstrate the absence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this showing has been made, the burden shifts to the party opposing the motion to provide evidentiary proof in admissible form sufficient to establish the existence of material [*2]facts requiring a trial (Zuckerman at 559). "Mere conclusory assertions, devoid of evidentiary facts, are insufficient to defeat a well-supported summary judgment motion" (Grullon v City of New York, 297 AD2d 261 [1st Dept 2002][internal citation omitted]).

The parties entered into a twelve-year lease, commencing August 1, 2013 through July 31, 2025, for the premises located at 374-390 E. 204th Street, in the Bronx, out of which tenant operates a restaurant. Tenant argues in support of its cross-motion for summary judgment that during its tenancy, landlord constructed an apartment building immediately above the premises, requiring the erection of scaffolding in front of the restaurant, which harmed its business. Tenant insists this alleged harm entitles it to judgment as a matter of law dismissing this non-payment proceeding in its entirety.

Tenant's reasoning, however, is flawed. Its explanation of how its business was harmed, and to what extent, is inconsistent, conclusory, and fails to resolve material issues of fact. For instance, tenant makes statements indicating that its business was forced to completely close for a period due to the construction (see, e.g., "The Petitioner actually caused the premises to close from the period January, 2019 through October, 2019" [Verified Answer at ¶ 5; see also Almonte Aff. at 4]; "Respondent could not do business during such period of time" [Verified Answer at ¶ 6]; landlord "prevented [tenant] from operating its business at the demised premises for some ten (10) months" [Notice of Cross-Motion]). Elsewhere, tenant claims that the construction was merely an impediment to its business, which apparently remained open (see, e.g., scaffolding made it "difficult or impossible for our customers to enter the restaurant" [Almonte Aff. at 4c]; "scaffolding in front of the construction site[] discouraged potential customers who had reason to believe that the restaurant was closed" [id. at 4b]; the construction "made it look as if the restaurant were closed for business" [id.]). These inconsistencies reflect material issues of fact as to whether and when the construction forced the restaurant close, which preclude judgment as a matter of law. Additionally, tenant estimates that the construction caused it to lose revenue of about $250,000 (Almonte Aff. at 6), but provides no business, tax or any other documentation to support this wholly conclusory assertion. As such, tenant has not met its prima facie burden as to any harm it suffered.

Even if tenant could establish that its business had been entirely closed from January 2019 through October 2019 due to the construction, and that it suffered resulting business losses of $250,000, it still would not be entitled to summary judgment dismissing this matter in its entirety. The alleged ten-month business closure does not account for the several years that tenant concededly has not paid rent under the lease.^[FN1] To accept tenant's argument on summary judgment would allow it to avoid paying rent altogether for several years solely because it may have suffered business losses over several months; such result would be manifestly unfair to the landlord, and arguably would constitute a windfall to the tenant.

For the foregoing reasons, tenant has failed to establish, prima facie, its entitlement to summary judgment dismissing the petition in its entirety, and its cross-motion for such relief is denied.

Landlord's motion to dismiss tenant's first, second, sixth and seventh affirmative defenses is granted to the extent, and for the reasons, discussed below.

Tenant's first affirmative defense alleges lack of proper service of the petition and notice of petition in accordance with RPAPL § 735, because respondent was not personally served. Tenant further claims that no copies of the petition or notice of petition were placed on or under the door of the premises or served on an employee of tenant (Answer at 2). It is well established that the affidavit of a process server is prima facie evidence of proper service (see Bank of America, N.A. v Budhan, 171 AD3d 622 [1st Dept 2019]). "The mere denial of receipt of service is insufficient to rebut the presumption of proper service created by a properly executed affidavit of service" (In re de Sanchez, 57 AD3d 452, 454 [1st Dept 2008]). Here, the landlord's process server states in their affidavit of service that on March 10, 2020, at 2:35 PM, they served the petition and notice of petition on tenant by delivering a copy to an individual of suitable age and discretion employed at the premises. The process server provides the name of the employee served (Yocasty "Doe"), as well as her physical description. They further indicate that the following day, on March 11, 2020, they mailed process to tenant at the premises. This affidavit of service constitutes prima facie evidence of service of process on tenant, in accordance with RPAPL §735. Tenant's conclusory denials of service of process are insufficient to rebut the presumption of proper service (Grinshpun v Borokhovich, 100 AD3d 551, 552 [1st Dept 2012], lv denied 21 NY3d 857 [2013]; Pina v Jobar USA LLC, 104 AD3d 544, 545 [1st Dept 2013]; CPLR 3211[b]; see Affid in Opp to Petitioner's Motion at 11). Thus, tenant's first affirmative defense is dismissed.

Tenant alleges in its second affirmative defense that the 14-day rent demand, with which it was served, is jurisdictionally defective and vague because it does not set forth the specific date by which payment was required (Answer at 3). The notice clearly and unambiguously provides that "you are required to pay, on or before the expiration of FOURTEEN (14) days from the day of the service of this Notice" (Ex. A to Notice of Petition). Tenant's second affirmative defense is legally unavailing, since RPAPL § 711(2) does not require the recitation in a 14-day rent demand of a date certain by which rent must be paid (see Alexander Muss & Sons v Rozany, 170 Misc 2d 890 [App Term, 2d Dept, 1996]; see also, 545 West Co. v Schacter, 16 Misc 3d 431, 432-33 [Civ Ct, NY Co, 2007]). Moreover, since tenant has made no rent payments since the commencement of this 2020 action, its claimed confusion strikes this Court as particularly cynical; this is not a case where tenant mistakenly made a rent payment a few days or even weeks late. Because landlord's 14-day rent demand is legally sufficient, tenant's second affirmative defense is also dismissed (CPLR 3211[b]).

In tenant's sixth affirmative defense, it alleges the landlord "may not obtain legal fees, real estate taxes, architect fees, HVAC fees, hood fees or electrical fees due to the fact that same are not rents" (Answer at 9). However, because legal fees, real estate taxes and utilities fees are specifically contemplated in the lease agreement to be recoverable as "additional rent," the sixth affirmative defense is dismissed as to those charges (see Lease at 19 and Rider to Lease at 50 [legal fees deemed additional rent]; Lease at 41.02 [tenant may be liable for taxes]; Rider to Lease at 46 [tenant responsible for utilities]). However, it is not clear to the Court whether the parties agreed as to architect fees, HVAC fees or hood fees. Thus, dismissal of tenant's sixth affirmative defense is denied without prejudice as to those charges.

Tenant's seventh affirmative defense is a barebones allegation that the petition is jurisdictionally defective pursuant to RPAPL § 741. That statute requires that the petition (1) [*3]state the interest of the petitioner in the premises from which removal is sought; (2) state the respondent's interest in the premises and [their] relationship to petitioner with regard thereto; (3) describe the premises from which removal is sought; (4) state the facts upon which the special proceeding is based; and (5) state the relief sought (RPAPL § 741). As such, RPAPL § 741 "ensures that a tenant will be informed of the factual and legal claims that he or she will have to meet and enables the tenant to interpose whatever defenses are available" (MSG Pomp Corp. v. Doe, 185 AD2d 798, 800 [1st Dept 1992]). Because a review of the petition here confirms that it complies with RPAPL § 741, tenant's seventh affirmative defense is dismissed (CPLR 3211[b]).

Landlord asserts that tenant has not paid rent since the commencement of this pre-pandemic action. Indeed, about $190,000 in arrears allegedly was outstanding in March 2020, when the petition was filed, and landlord claims that figure has grown to around $500,000 today. Tenant does not deny its non-payment of rent; it simply makes the legal arguments in support of its cross-motion for summary judgment, already rejected by the Court. While there are issues of fact about whether tenant's business may have temporarily closed due to construction, tenant does not dispute that it has remained in possession of the premises during the entire period at issue and that its restaurant continues to operate. Because it would be manifestly unfair for tenant to remain in possession of the premises without paying for their use, the Court grants landlord's motion for past and prospective post-petition use and occupancy, pending litigation of this matter (MMB Assocs. v Dayan, 169 AD2d 422 [1st Dept 1991]; see also Levinson v 390 West End Associates, LLC, 22 AD3d 397, 403 [1st Dept 2005] ["a dispute concerning the amount of rent owed is no reason to allow a tenant to occupy a landlord's real property gratis"]). Tenant is directed to pay landlord use and occupancy at the monthly rates set forth in the lease, from the commencement of this action through final resolution hereof, with the exception of for the period from January 2019 through October 2019. The foregoing payment of use and occupancy will be without prejudice to either party's position concerning the appropriate rent under the lease or any possible rent off-sets.

The clerk is directed to set this matter down for trial.

This constitutes the decision and order of the Court.