Plaintiffs in this commercial-landlord-tenant action are Bohemian Spirits, Inc., and Alexandra Obremski, Bohemian's sole owner and officer. Defendant, Newark Heights Company, LLC, is a foreign limited-liability corporation, registered in the State of New York. (NYSCEF #2 ¶¶ 1-4.) In 2005, Defendant bought a developed parcel at 21-01 41st Avenue a/k/a 40-35A 21st Street, Long Island City, New York. (NYSCEF #12 ¶ 11.) Plaintiffs originally were tenants at the developed parcel with MS Development of NY Corp., defendant's predecessor, under an unsigned lease from April 2003 to March 2008. A signed modification/extension lease between plaintiffs and defendant spans from April 1, 2015, through March 31, 2018. (NYSCEF #23 ¶¶ 7-8.) Since March 2018, Bohemian has occupied the premises owned by defendant on a month-to-month basis. (NYSCEF #24 ¶ 9.)

Plaintiffs sued defendant for overcharges for approximately $129,000 plus interest, costs, and attorney fees. Plaintiffs also demand a two-year lease renewal. Defendant counterclaimed against Bohemian for (i) $59,968.07 in unpaid rent and additional rent that Bohemian allegedly owed under the terms of the expired lease, and (ii) attorney fees. (NYSCEF #33, Exhibit "G.")

Defendant now moves under CPLR 3212 for summary judgment dismissing plaintiffs' claims and for judgment in defendant's favor on its counterclaims (NYSCEF #22 ¶¶ 7-8.) Bohemian cross-moves for sanctions against defendant under 22 NYCRR 130-1.1.

Defendant seeks to dismiss Obremski's claims on the ground that Obremski has no contractual relationship or privity with defendant. (See Bri-Den Const. Co., Inc. v Kapell & Kostow Architects, P.C. 56 AD3d 355, 355 [1st Dept 2008].) Obremski did not maintain any lease agreement with defendant for the premises in question or any other properties owned by defendant. She has also never been billed by or paid rent directly to defendant during the lease period. (NYSCEF #24, ¶ 4.) This aspect of the motion is granted. Obremski's claims against defendant are dismissed.

Defendant seeks to dismiss plaintiffs' overcharge claims, arguing that the voluntary-payment doctrine and the statute of limitations bar these claims. This court agrees that the claims are barred.

The voluntary-payment doctrine bars recovery of payments voluntarily made with full knowledge of the facts, absent fraud or mistake of material fact or law. (See Dubrow v Herman & Beinin, 171 AD3d 672, 673 [1st Dept 2019].) A party that receives what it perceives as an improper demand for money should litigate the issue before, rather than after, payment is made. (DRMAK Realty LLC v Progressive Credit Union, 133 AD3d 401, 403 [1st Dept 2015].)

Bohemian made payments to MS Development of NY Corp. under an initial contract from April 2003 to March 2008 and then made payments to defendant under a later agreement from April 1, 2015, to March 31, 2018. Given that plaintiffs continued to make payments without disputing the charges, they may not reclaim any alleged overpayment.

Moreover, the statute-of-limitations doctrine bars plaintiffs' overcharge claims. The statute of limitations for a breach of a written contract is six years, beginning when the breach occurs. (CPLR 213 [2].) Defendant bears the initial burden to establish that more than six years have passed since the cause of action arose. (Benn v Benn, 82 AD3d 548, 548 [1st Dept 2011].)

Plaintiffs' overcharge claims exceed the six-years period; defendant successfully demonstrates that more than six years have elapsed since the lease was violated. Plaintiffs initiated this lawsuit on November 22, 2023, indicating that any breach of contract must have occurred after November 2017 for the purpose of this action. But the alleged breach of contract in the complaint dates back approximately 20 years. (NYSCEF #2 ¶ 5.) As a result, the statute of limitations bars plaintiffs from claiming any overcharge.

Defendant's request for dismissal plaintiffs' overcharge claims is granted.

Defendant argues that no terms in the contract support a claim for automatic lease [*2]renewal. When parties set down their agreement in a clear, complete document, their writing will be enforced according to its terms. (W.W.W. Assoc. v. Giancontieri, 77 NY2d 157, 162 [1990].) This principle is particularly underscored in transactions involving real property, often negotiated between sophisticated entities represented by counsel. (Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004].)

A court may not alter a contract by inserting or removing terms, effectively creating a new agreement under the pretense of interpretation. (See MAK Tech. Holdings Inc. v Anyvision Interactive Tech. Ltd., 213 AD3d 28, 39 [1st Dept 2022].) But if a contract is ambiguous— meaning that its terms can reasonably be interpreted in multiple ways—the court may favor one interpretation over the other. (Fed. Ins. Co. v Intl. Bus. Machines Corp., 18 NY3d 642 [2012].)

An omission or mistake is not an ambiguity. Whether an ambiguity exists "must be ascertained from the face of an agreement without regard to extrinsic evidence." (Reiss v Fin. Performance Corp., 97 NY2d 195, 199 [2001].) In the current action, no language would grant plaintiff an automatic renewal right under the modification/extension lease with defendant from April 1, 2015, to March 31, 2018. Thus, plaintiffs do not have a right to renew automatically when the lease expires.

Defendant moves for summary judgment against Bohemian on its counterclaim for $59,572.02 in unpaid rent. Bohemian opposes defendant's motion, arguing that defendant's evidence consists of inadmissible business records and that defendant has not established a contractual relationship between defendant and Bohemian. This court concludes that defendant is entitled to summary judgment on this counterclaim.

To obtain summary judgment, a movant must establish its cause of action by tendering of evidentiary proof in admissible form. (Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979].) CPLR 4518 (a) provides that "any writing or record . . . made as a record of any act, transaction, occurrence or event, shall be admissible," if the court finds that it was made in the regular course of business and that it was the regular course of the business to make it at the time of the act, transaction, occurrence, or event.

Bohemian argues that an unsigned original lease, a modification/extension lease relating back to the unsigned lease, and an occupant ledger are inadmissible. But all these documents were made during regular course of business of leasing between Bohemian and defendant. Thus, they should all be admitted.

In support of its summary-judgment motion, defendant submitted Tony Huang's affidavit. Huang is a member of Newark. Bohemian argues that this court should reject Huang's affidavit, because the word "Company" in defendant's name is absent in the first paragraph of his affidavit. Although "Newark Height Company LLC" was incorrectly written as "Newark Height LLC" in the first paragraph, "Newark Height Company LLC" was mentioned several times later in Huang's affidavit. This indicates that all of Huang's allegations pertain to "Newark Height Company LLC" rather than "Newark Height LLC." (NYSCEF #24, ¶¶ 7-8, 10-11.)

Defendant provides sufficient evidence to prove the existence of a lease between Bohemian and defendant. Bohemian argues that unsigned original lease is insufficient to [*3]establish the existence of the contractual relationship between MS Development of NY Corp and Bohemian. Thus, Bohemian contends, the modification/extension of the nonexistent lease is also a nullity. (NYSCEF #43 P2.) But the modification/extension lease, which all parties signed, incorporates the original lease. (NYSCEF #50 ¶ 11.) Moreover, defendant corrected the typographical error in the modification/extension lease, which reads "Bohenian," to "Bohemian" before signing the modification/extension lease. That proves Bohemian's identity. (NYSCEF #50 ¶ 13.)

Under Real Property Law § 232-c, if a landlord accepts rent for any period after the lease agreement has expired, and there is no contrary agreement, acceptance of rent establishes a month-to-month tenancy following lease expiration. Therefore, defendant is entitled to receive monthly rent payments since 2018, when Bohemian became a month-to-month tenant of the premises. (NYSCEF #50 ¶¶ 20-21.) Plaintiffs have not provided evidence that would raise a dispute of material fact on this issue.

Defendant's request for summary judgment in its favor on its counterclaim for $59,968.07 in unpaid rent is granted.

Defendant also moves for summary judgment on its attorney-fee counterclaim, seeking $7,942.50 in incurred legal fees. This branch of defendant's motion is denied. Defendant argues that it is entitled to recover fees under the modification/extension lease. (NYSCEF #28, ¶¶ 35-36.) However, neither the unsigned lease nor the modification/extension lease makes any reference to the right to legal fees. Absent a contractual right to fees, this court lacks authority to award them.

Bohemian alleges that defendant has engaged in frivolous conduct in violation of NYCRR 130-1.1 (c), including by submitting an unsigned original lease, a modification/extension lease, an occupant ledger, and Huang's affidavit.

A court may impose sanctions if the conduct (1) is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; (2) is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) asserts material factual statements that are false. (22 NYCRR 130-1.1 [c].)

Bohemian does not show that defendant delayed the resolution of the litigation or harassed or maliciously injured another when it submitted an unsigned lease, a modification/extension lease, and an occupant ledger. Moreover, submitting Huang's affidavit does not violate any prong of 22 NYCRR 130-1.1 (c). Huang is not an irrelevant party, but a manager of defendant. (NYSCEF #50 ¶14.)

Bohemian' cross-motion for sanctions is denied.

Accordingly, it is

ORDERED the branch of defendant's motion seeking summary judgment dismissing the claims against it is granted, and the complaint is dismissed, with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that the branch of defendant's motion seeking summary judgment in its favor on its counterclaims is granted in part and denied in part as set forth above and defendant is awarded a judgment against Bohemian for $59,968.07; and it is further

ORDERED that Bohemian's cross-motion for sanctions against defendant is denied; and it is further

ORDERED that defendant serve a copy of this order with notice of its entry on all parties and on the office of the County Clerk (by the means set forth in the court's e-filing protocol, available on the e-filing page of the court's website, https://ww2.nyco urts.gov/courts/1jd/supctmanh/E-Filing.shtml), which shall enter judgment accordingly.