This is a nonpayment commercial landlord tenant matter. This court held a three-day trial beginning on March 27, 2023, continuing on May 4, 2023, and concluding on May 10, 2023. Upon due consideration of the testimony and evidence, judgment is as follows:

Petitioner presented one witness, Jacob Soleimani, petitioner's managing agent. Mr. Soleimani testified to the following: Petitioner owns the premises sought be recovered, described as 429 Lenox Avenue, Store 3&4, 3rd and 4th Storefront from north and basement, New York, New York 10037 ("subject premises"). Respondent-tenant, under the name of A Taste of Seafood, Inc., Laquan Williams and Luther McLoyd (hereinafter, collectively, "respondents"), entered into a lease with petitioner for the subject premises on April 1, 2016, expiring on February 28, 2023 (see Pet Exh 2). Petitioner submitted a copy of the lease that indicated the tenants are: A Taste of Seafood, Inc.; Laquan Williams; and Luther McLoyd (see id.).

Respondents made payments towards its financial lease obligations until March 2022, when petitioner charged respondents $6,000.00 to clear a "stop work order" issued by the Department of Buildings for work respondents undertook on the premises. Respondents did not pay petitioner the $6,000.00 demanded and stopped paying petitioner rent moving forward. Petitioner served respondents with a fourteen-day rent demand on August 16, 2022, and served respondents with the notice of petition and petition on September 14, 2022.

On its case, respondents called Laquan Williams. Ms. Williams testified that she, Mr. McLoyd and their business, House of Seafood Express, Inc., entered into a lease with petitioner on April 1, 2016, expiring on February 28, 2023 (see Resp Exh A). Ms. Williams disputes owing petitioner the $6,000.00 to clear the "stop work order," but concedes that she, Mr. McLoyd and House of Seafood stopped paying rent for the subject premises as of April 2022. While disputing the total amount owed, Ms. Williams' primary argument is that petitioner failed to sue the correct tenant when it sued A Taste of Seafood, Inc., Laquan Williams and Luther McLoyd; instead of House of Seafood Express, Inc., Laquan Williams, and Luther McLoyd.

Respondents submitted a copy of the lease naming House of Seafood Express, Inc., Laquan Williams, and Luther McLoyd, collectively as tenant, as proof of the parties' agreement (see id.). Ms. Williams also submitted numerous checks paid to petitioner for rent in 2015 from the corporate account of House of Seafood, Inc. (see Resp Exh B), and a letter dated March 14, 2018, written on petitioner's letterhead and addressed to House of Seafood (see Resp Exh D).

When asked to explain the discrepancy between the leases, one with A Taste of Seafood, Inc. as the corporate tenant, and one with House of Seafood Express, Inc. as the corporate tenant, Ms. Williams explained that the lease with A Taste of Seafood, Inc. was signed under the previous owner's corporate name in error. Soon after the lease signing, Mr. Soleimani requested that petitioner be named on the insurance policy for the premises. Ms. Williams testified that she refused to add petitioner to the insurance policy until she was provided with a new lease naming her company— House of Seafood Express, Inc., as a tenant. The corrected lease emailed to her did not provide for new signatures. Ms. Williams testified that she was provided a corrected lease that contained the entity "House of Seafood Express, Inc." where "A Taste of Seafood" was previously listed. Ms. Williams accepted that as the corrected lease and she testified that she then added petitioner as a named insured on the insurance policy, as requested.

Ms. Williams' testimony is consistent with the evidence proffered at trial. Indeed, the lease with House of Seafood Express, Inc. does not contain original signatures — only photocopies. Moreover, in petitioner's lease the first page of the lease and the first page of the rider contain the corporate name A Taste of Seafood, Inc., however, in respondents' lease the parties' initials are missing on those pages. Further, Respondents' exhibit D is a letter from Mr. Soleimani on petitioner's letterhead written to the Department of Environmental Protection (DEP). It states that he gave "permission to an agent of our tenant, House of Seafood Express c/o Laquan Williams" to act on the owner's behalf to resolve questions on a DEP account.

Ms. Williams further testified she was only an owner of House of Seafood Express, Inc., and was never an owner of A Taste of Seafood, although her mother was a partial owner of Taste of Seafood. Ms. Williams testified that petitioner was aware of her status as owner of House of Seafood Express, Inc., not Taste of Seafood, prior to commencing the instant action.

Petitioner's own tenant rent ledger, which begins on July 1, 2014, but then contains no further entries until December 23, 2020, also lists payments received from House of Seafood on January 28, 2021, and December 16, 2021 (see Pet Exh C). Notably, petitioner did not consistently list A Taste of Seafood, Inc. as the payor/tenant on its rent ledger until September 1, 2022 — one day before the date listed on petitioner's notice of petition and petition commencing the instant action (see NYSCEF Doc. Nos. 1-2). Petitioner's exhibit 5— emails between Mr. Soleimani and respondents— use the email "[email protected]", "[email protected]," and "[email protected]," and none referencing "Taste of Seafood."

Petitioner offered no rebuttal testimony or evidence to oppose Ms. Williams' testimony. When asked during cross examination whether petitioner ever signed a lease with House of Seafood Express, Inc. as tenant, Mr. Soleimani stated that he "did not remember."

This court finds Ms. Williams' testimony credible and credits her unrebutted testimony as to why each party submitted a different lease. The corporate tenant in possession of the property is House of Seafood, Express, Inc., which is not a party to this action.

Ms. Williams also credibly testified that House of Seafood, Express, Inc., she and Mr. McLoyd vacated the subject premises between the May 4 and May 10, 2023 trial dates.

This court is prompted to consider the statute of frauds being that the lease with House of Seafood, Express, Inc., was never signed by the parties even though this court credits Ms. Williams' testimony about how the corrected lease came into existence.

New York's General Obligations Law § 5-703 (2) provides that a contract for the leasing of any real property for a period longer than one year is void "unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent." Nevertheless, the statute itself and caselaw provide that the statute of frauds defense may be waived based on partial performance (see GOL § 5-703 (4); Messner Vetere Berger McNamee Schmetterer Euro RSCG Inc. v Aegis Group PLC, 93 NY2d 229, 235 [1999]; Burns v McCormick, 233 NY 230 [1922]). Part performance alone is insufficient. The party seeking to waive the statute of frauds defense must show that the performance is "unequivocally referable to the agreement" (Messner Vetere Berger McNamee Schmetterer Euro RSCG Inc., 93 NY2d at 235).

Given that the purpose of the statute of frauds is to avoid a fraud or inequitable result intrinsic in an indefinable oral contract, courts may enforce an oral agreement only where the risk of perjury or error is negligible (see Burns v McCormick, 233 NY 230).

Here, this court will enforce the corrected lease, notwithstanding the statute of frauds, because to do otherwise would result in an injustice (see Club Chain of Manhattan, Ltd. v Christopher & Seventh Gourmet, Ltd., 74 AD2d 277 [1st Dept 1980]). The parties entered into this agreement in April 2016 and performed under the agreement until the disputed stop work order in March 2022. Petitioner seeks to enforce the agreement by virtue of this action in that the written and executed lease is identical to the corrected lease, except for the name of the corporate respondent. The court credits Ms. Williams' testimony, in that it was petitioner who changed the lease to the corrected version and supplied that version to respondents. Given that it was petitioner's action that led to the corrected lease to begin with, it would be an injustice to void that version of the lease after performance under it for approximately six years. Moreover, the parties ratified the corrected version of the lease based on their continued course of conduct (see 30 Carmine LLC v Depierro, 7 Misc 3d 836, 846 [Civ Ct, NY Cty 2005]).

Finding that the lease naming House of Seafood Express, Inc., Laquan Williams and Luther McLoyd, as tenants controlling; petitioner's predicate notices and summons are defective as against the corporate tenant House of Seafood Express, Inc.. The petition, however, survives as against the individual tenants Laquan Williams and Luther McLoyd.

Petitioner moved to amend its petition to include all unpaid rent that accrued after service of the notice of petition and petition, which as of March 2023, totaled $86,717.98 (see Pet Exh [*2]3). It is established practice in commercial landlord-tenant nonpayment proceedings to permit amending the petition to include all rent that has accrued after the commencement of the proceeding (see 36 Main Realty Corp. v Wang L. Off., PLLC, 49 Misc 3d 51 [App Term, 2d Dept 2015]; GSL Enters., Inc. v Newlinger, NYLJ, May 24, 1996, at 25, col. 6 [App Term, 1st Dept 1996]; C.F. Monroe, Inc. v Nemeth, NYLJ, Oct. 25, 1994, at 25, col. 1 [App Term, 1st Dept 1994]). Therefore, the petition is amended to reflect an amount demanded of $86,717.98, through March 2023, exclusive of legal fees.

That amount is inclusive of the $6,000.00 fee levied by the Department of Buildings (DOB) as testified to by Mr. Soleimani (see Pet Exhs 6 and 7). Mr. Soleimani testified credibly that petitioner paid that amount to the DOB as a result of respondents' work without a permit in February 2022. Petitioner paid the DOB in the amount of $6,000.00, in April 2022 (see Pet Exh 6). Respondents challenged that $6,000.00 was owed because it also submitted a determination from the Office of Administrative Trials and Hearings, which reflected the same summons number as the stop work order— 035592524K. Respondents' evidence indicates that it was charged $625.00 on the same summons by OATH for unpermitted electrical work. The OATH decision is dated after payment was made of the stop work order, in May 2022. The OATH decision does not explicitly reduce or vacate the $6,000.00 fee. As such, petitioner established that respondents are responsible for the charges petitioner paid on respondents' behalf pursuant to the corrected lease.

Accordingly, it is hereby,

ORDERED that the Clerk of the Court is directed to enter a final judgment granting the nonpayment petition and awarding possession of the premises—described as 429 LENOX AVENUE, STORE 3 & 4, 3rd and 4th STOREFRONT FROM NORTH & BASEMENT, New York, NY 10037—to petitioner 429 LENOX REALTY, LLC, as against respondents LAQUAN WILLIAMS AND LUTHER MCLOYD only; a warrant of eviction shall be issued forthwith. The earliest execution date of the warrant is June 19, 2023; it is further

ORDERED, a monetary judgment in the amount of $86,717.98, is jointly and severally granted in favor of petitioner as against respondents LAQUAN WILLIAMS AND LUTHER MCLOYD; it is further

ORDERED, that petitioner's claim for attorneys' fees in connection with this action is preserved for an attorney's fee hearing as against respondents LAQUAN WILLIAMS AND LUTHER MCLOYD, that shall take place on August 3, 2023 at 2:30 PM in Part 52, and thereafter referred to this court, JCC Ilana J. Marcus; and it is further,

ORDERED, the parties' attorneys may retrieve any exhibits from the courtroom in Part 52 within 45 days after entry of this decision and order, or same may be discarded or destroyed. The parties may coordinate pick up by emailing the Part Clerk at [email protected].

This constitutes the decision and order of the court.