Papers         &n bsp;     NYSCEF Doc No

Upon the foregoing papers, respondent moves for summary judgment dismissing this nonpayment proceeding and for a monetary judgment on its counterclaim.

On or about March 1, 2019, the parties entered into a lease for respondent to occupy two laundry rooms in petitioner's residential buildings. Under the lease, respondent would install, service, and maintain laundry equipment to be used by petitioner's residents at a set fee per usage. Specifically, in petitioner's laundry rooms there are 10 washers with an initial vend charge of $2.00; another 2 washers with an initial vend charge of $3.00; and 9 dryers with an initial [*2]vend charge of $2.00.

Petitioner commenced this nonpayment proceeding alleging that as of August 1, 2023, respondent was in $31,506.16 in arrears. The rent ledger attached to the commencement papers appear to reflect that a fixed rate was charged every month throughout the period of time at issue (see NYSCEF Doc No 3).

In support of its motion, respondent contends that those calculations are incorrect. Rather, the clear language of the lease permit respondent to retain a minimum return on money collected through use of its laundry equipment and the amount due in rent changed from month to month (or from quarter to quarter, as the lease indicates that rent would be paid quarterly). Based on respondent's calculations pursuant to the terms of the lease, respondent is not in arrears and, instead, has made an overpayment of $6,121.96, which it seeks as part of its counterclaim.

The relevant provisions of the lease, as noted in the parties' papers,^[FN1] are as follows:

2. Lessee agrees to pay Lessor a rental of: Thirty Six Thousand Dollars ($36,000.00) per year.

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14. The rental will be paid by check to the office of the Lessor. Rental shall be payable in quarterly installments on the tenth days of January, April, July, and October for the prior quarterly period. Notwithstanding any other provision of this Lease, Lessee shall always first be entitled to retain as minimum compensation for each day of the rental period, one complete cycle per installed machine, whether such compensation s received by the Lessee in such period or an other future periods, before payment of rent and any charges if paid by Lessee, and the rental otherwise due to Lessor shall be adjusted accordingly.

20. Lessee shall always be entitled to receive a minimum return per day, per machine before rental is paid of no less than $1.75 per machine, per day. The rental otherwise due to Lessor shall be adjusted accordingly to reflect this (NYSCEF Doc No 13).

Pursuant to CPLR 409 (b), the court "shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised" (see Matter of Gonzalez v City of New York, 127 AD3d 632, 633 [1st Dept 2015]). "The standards governing motions for summary judgment are applicable to special proceedings generally, of which the summary proceeding to recover possession of real property is a species" (Brusco v Braun, 199 AD2d 27, 31-32 [1st Dept 1993] [internal citations omitted], affd 84 NY2d 674 [1994]). It is, therefore, "the court's duty to search the record and make summary determinations where appropriate" (McKay, 2022 NY Slip Op 50646[U] at *3; see New 110 Cipriani Units, LLC v Bd. of Mgrs. of 110 E 42nd St. Condominium, 166 AD3d 550, 551 [1st Dept 2018] ["The court had the power to dismiss the complaint upon a search of the record, as on a motion for summary judgment"]; see also Fourth Hous. Co., Inc. v Bowers, 53 Misc 3d 43, 44-45 [App Term, 2d, 11th & 13th Jud Dists 2016]).

"The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent [and] '[t]he best evidence of what parties to a written agreement intend is what they say in their writing'" (Greenfield v Philles Records, Inc., 98 NY2d 562, 569 [2002], quoting Slamow v Del Col, 79 NY2d 1016, 1018 [1992] [alteration added] [internal citation omitted]). "Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield, 98 NY2d at 569). The high Court has "also emphasized this rule's special import 'in the context of real property transactions, where commercial certainty is a paramount concern, and where . . . the instrument was negotiated between sophisticated, counseled business people negotiating at arm's length'" (Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004], quoting Matter of Wallace v 600 Partners Co., 86 NY2d 543, 548 [1995] [internal quotation marks and citations omitted]).

"A contract is unambiguous if the language it uses has 'a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion'" (Greenfield, 98 NY2d at 569, quoting Breed v Insurance Co. of N. Am., 46 NY2d 351, 355 [1978]).

Here, the Court finds the lease terms are not ambiguous and, therefore, there is no need to resort to extrinsic evidence about the parties' intentions. Contrary to petitioner's contentions, summary disposition is appropriate and no trial is needed.

Petitioner suggests that the annual rate of $36,000.00 is fixed or is the minimum amount due by respondent (see NYSCEF Doc No 21 at ¶¶ 7, 9). However, the term "fixed" or "minimum" is nowhere in that paragraph (see Vermont Teddy Bear Co., 1 NY3d at 475 ["courts should be extremely reluctant to interpret an agreement as impliedly stating something which the parties have neglected to specifically include"], quoting Rowe v Great Atl. & Pac. Tea Co., 46 NY2d 62, 72 [1978] [internal quotation marks omitted]). The claim that respondent always "[made] the license fee payment and never sought to apply [e.g., paragraph 14 of the lease]" (Kramer aff at ¶ 5) is not sufficient to oppose respondent's motion because (a) it is speculative and without any proof that respondent somehow "ratified" an materially different term that is not in the lease; and (b) even if true, cannot in any way constitute a waiver of its right to be charged rent properly under the lease (see Matter of Georgetown Unsold Shares, LLC v Ledet, 130 AD3d 99, 105 [2d Dept 2015] ["Since the very essence of a waiver is the intentional relinquishment of a known right, a waiver cannot be created via negligence, oversight, or thoughtlessness"]).

Further, if petitioner was correct that it is entitled to a fixed rent, paragraphs 14 and 20 of the lease, wherein they both provide that the "rental otherwise due to Lessor shall be adjusted accordingly" would be rendered meaningless. For if the rent was "fixed," why would it ever need to be "adjusted"? The Court cannot distort the lease terms in the manner petitioner suggests (see Vermont Teddy Bear Co., 1 NY3d 470, 475 ["courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing"], quoting Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001] [internal quotation marks omitted]; In re Lipper Holdings, LLC, 1 AD3d 170, 171 [1st Dept 2003] ["A contract should not be interpreted to produce a result that is absurd"]).

Finally, the Court finds no basis to use the $1.75 minimum return set forth in paragraph 20 as petitioner suggests; rather paragraph 14 appears controlling. Paragraph 20 provides that respondent's minimal return would be "no less than $1.75 per machine, per day" (emphasis [*3]added) whereas paragraph 14 otherwise defines the minimal return as "one complete cycle per installed machine," which is read in conjunction with the machines and initial vend amounts set forth in paragraph 2. There is no conflict between the two provisions since one sets an absolute monetary minimum amount for the minimum return, and the other defines the minimal return.

In sum, the Court finds that respondent met its burden demonstrating that there is no issue of fact precluding summary judgment in its favor, and petitioner failed to demonstrate an issue of fact requiring a trial. Based on the evidence respondent submitted and the lease terms, respondent is not delinquent in rent and therefore the nonpayment proceeding may not be maintained. Additionally, the evidence demonstrates that respondent overpaid in the fourth quarter of 2021, which, after offsetting other months of minimal underpayment, reflects a balance owed to respondent of $6,121.96 as of the end of 2023.

Accordingly, it is hereby ORDERED that respondent's motion is granted; and it is further

ORDERED that the Clerk is directed to enter judgment in favor of respondent on its counterclaim against petitioner in the amount of $6,121.96; and it is further

ORDERED that the Clerk is directed to enter judgment in favor of respondent dismissing the petition.

This constitutes the decision and order of the Court.