Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Order to show Cause/ Notice of Motion and

Affidavits /Affirmations annexed 1

Answering Affidavits/ Affirmations 2

Reply Affidavits/ Affirmations 3

Memoranda of Law

Other — NYSCEF Doc Nos. 1 through 60 4

Upon the foregoing cited papers, the Decision and Order of the Court in determining Motion Seq. No. 001 (petitioner's motion for summary judgment) is as follows:

At the outset, the Court notes that judgment of possession and warrant of eviction in favor of petitioner and against tenant Chelsea Leasehold Owners LLC. ("Chelsea"), the tenant of record of the subject premises, has previously been granted. In general, the termination of the tenant's possessory interest extinguishes the possessory interests of any subtenant (or undertenant). The Court also notes that the Court has also previously granted judgment of possession and warrant of eviction in favor of petitioner and against the non-appearing undertenants, respondents Jessica's Petal, Neighbor+, and Minako Hasegawa Hair Salon. Further, respondent-undertenant Blank Street Coffee ("BSC") did not oppose the motion and, subsequent to this motion having been submitted, entered into a stipulation resolving the motion as between petitioner and BSC. See, NYSCEF Doc No. 65. Lastly, the motion as against respondent-under tenant AESOP was resolved per stipulation on March 3, 2025. Thus, only respondent-undertenants Desi Flavors Deli ("Desi") and Convenience on 9th remain to oppose the motion.

Desi asserts that the predicate notices and the petition/notice of petition are deficient as the proper name of this entity is "Desi Flavors Deli Inc." and the papers omit the "Inc." Desi also argues that there is no privity between petitioner and Desi and thus the rent demand was improper. Neither argument overcomes petitioner's entitlement to summary judgment.

First, no predicate notice was required from petitioner to serve upon Desi as an undertenant. As Desi points out in its papers, there is no privity between petitioner and Desi, and Desi enjoys no possessory rights of any kind beyond that of its overtenant, Chelsea Leasehold Owners LLC., with which Desi had privity. Thus, while Chelsea may have had an obligation to provide predicate notices, such as a rent demand and notice to cure, upon Desi, petitioner had no such obligation, even though petitioner did, in fact, serve such documents upon Chelsea. Interestingly, had Desi complied with petitioner's rent demand and notice to cure and paid the demanded rent to petitioner, it is feasible that privity (and thus possessory rights) may have been created by these otherwise unnecessary documents. However, that is not alleged and not an issue before the court.

As to the lack of the "Inc.," the Court finds this omission to be de minimus and that there was no confusion created by the omission of the word "Inc.," nor any prejudice from amending the pleading to reflect the proper corporate name. See Fink v. Regent Intern. Hotels, Ltd., 234 AD2d 139 (1st Dept. 1996) (quoting Medina v. City of New York, 167 AD2d 268, 269-70, (1st Dept. 1990)). Accordingly, petitioner's motion for summary judgment is granted in its entirety as against respondent Desi, and the Court orders the aforementioned amendment to the caption nunc pro tunc.

Convenience on 9th asserts similar arguments regarding the predicate notices, which, as discussed herein, were not required from petitioner upon the undertenants in the first place in a non-payment action against the overtenant. Further, respondent Convenience on 9th also does not contend it responded to the otherwise unnecessary rent demand and notice to cure by paying the demanded rent in full. Accordingly, this argument is unavailing.

Convenience on 9th's waiver and estoppel argument based on alleged pre-petition acceptance of certain rent payments from Convenience on 9th to petitioner is also unavailing. The assertion of pre-petition rent payments is raised only in the attorney affirmation. This contention is unsupported by any fact affidavit, or other evidence in admissible form, including any reference to petitioner accepting any such payments in Ibrahim Kassim's affidavit in support, which was conspicuously absent. See, Lewis v. Safety Disposed Sys. of Pa., Inc., 12 AD3d 324, 325 (1st Dept. 2004). Conversely, petitioner did provide an affirmation from a fact witness that affirmatively stated that "the appearing occupants have never paid any monies directly to landlord." Young Affirmation, NYSCEF Doc. No. 28, at 4. As petitioner's factual assertion, therefore, is essentially unrefuted, such contentions do not raise triable issues of fact sufficient to defeat petitioner's prima facie entitlement to summary judgment.

Convenience on 9th's argument regarding improper or deficient service of the petition and notice of petition, on the other hand, is potentially a more problematic argument for petitioner. Petitioner is correct that service of process on a corporate tenant need only comply with the provisions of RPAPL 735 and not CPLR 311. Specifically, CPLR 311 lists specific categories of employees or agents that can be effectively served process, while RPAPL 735 requires only that service be upon any person of suitable age "employed at the property." However, the person served must at least be "employed" at the property. Although the process server's affidavit states that the petition was served upon "John A," who was "employed at said property," and thus there is a presumption as a matter a law that this is true and accurate, it is a rebuttable presumption. Here, respondent offers an express, specific statement by a person with personal knowledge that respondent does not have any employee by that name. Kassim Aff., ¶¶ 6-7. This inconsistency appears to raise sufficient grounds to require a traverse hearing during which the veracity of this assertion by Convenience on 9th can be explored. Thus, while petitioner is correct that bald conclusory denials of receipt of service of process is insufficient to overcome the presumption of [*2]proper service arising from a process server's affidavit, the Kassim affidavit appears to provide more than a mere conclusory denial of receipt.

That said, Convenience on 9th must overcome petitioner's argument that respondent's assertion of certain counterclaims function as a waiver of the right to challenge the court's personal jurisdiction. Here, respondent filed counterclaims alleging tenant harassment. The Court agrees with petitioner and finds waiver of the jurisdictional defense.

It is well settled that a defendant (or respondent) that interposes a counterclaim unrelated to plaintiff's (or petitioner's) claim, waives any personal jurisdiction defenses that might have otherwise existed as such defendant/respondent has taken affirmative advantage of the court's jurisdiction to assert such counterclaims. See, Textile Tech. Exch. v Davis, 81 NY2d 56, 58-59 (1993). Further, "the assertion of even one unrelated counterclaim out of many will result in a waiver of the defense of lack of personal jurisdiction." See, 150 West End Owners Corp. v Chestnut Holdings of NY Inc., 49 Misc 3d 1148 (Civ Ct., Kings Co., 2015), quoting, Textile, 81 NY2d at 58-59 ("[A]sserting an unrelated counterclaim does waive such defense because defendant is taking affirmative advantage of the court's jurisdiction"). In keeping with Textile, the Appellate Term, First Department has expressly applied this principle to landlord-tenant matters. See, ROL Realty Co. LLC v Gordon, 29 Misc 3d 139(A), 2010 NY Slip Op 52048(U)(App Term, 1st Dept. 2010)("when a respondent asserts lack of personal jurisdiction as an affirmative defense in a nonpayment proceeding and simultaneously asserts a counterclaim that is unrelated to nonpayment of rent, any objection as to personal jurisdiction by the respondent is waived).

A counterclaim is considered related if "it must be asserted to avoid the risk of preclusion under principles of collateral estoppel." 150 West End Owners Corp. at 1149; see also Textile, 81 NY2d at 59; see also, N.A.S. Holdings Inc. v. Pafundi, 12 AD3d 751, 752 (3rd Dept. 2004). Thus, whether or not respondent might be otherwise barred from litigating in a separate or subsequent action issues not raised as a counterclaim is the material question in determining whether a counterclaim is "related" or "unrelated." In N.A.S. Holdings Inc., the Court held that defendant's counterclaim alleging that plaintiff maliciously and frivolously instituted the action was related to plaintiff's claim because if plaintiff "were to be successful in its action, defendant's counterclaim would necessarily fail and the principles of collateral estoppel would prevent relitigation."). On the other hand, in ROL Realty, the Appellate Term declined to revive a tenant's jurisdictional defense even though the tenant stipulated to withdrawing two unrelated counterclaims (one for intentional infliction of emotional distress, the other for property damage caused by negligence), because "the other unrelated counterclaims were not withdrawn, such as those for harassment, discrimination and overcharge, and remain extant." ROL Realty Co. LLC v Gordon, 29 Misc 3d at 139 (emphasis added).; see also, 405 East 56th St., LLC v Steginsky, 2013 NY Slip Op 30427(U)(Civ Ct, New York Co. 2013); 374 E. Parkway Common Owners Corp. v Albernio, 32 Misc 3d 1240(A), 2011 NY Slip Op 51654(U)(Civ Ct, Kings Co. 2011)).

Respondent Convenience on 9th's counterclaim alleging commercial tenant harassment is not related to petitioner's claim for nonpayment of rent as there was no risk of preclusion under principles of collateral estoppel had respondent not asserted such counterclaim. As of September 2016, the "Non-Residential Tenant Harassment" law, codified as NYC Administrative Code § 22-902, protects commercial tenants from harassment. To establish harassment by a commercial landlord, the tenant must prove that the commercial landlord did (or failed to do something otherwise required to do) with the intention of making the tenant vacate the commercial property or surrender its rights under the commercial lease. Notably, tenant harassment is not a defense to a nonpayment of rent claim. Indeed, NYC Administrative Code § 22-903 (Private Right of Action) expressly states that "the commercial tenant shall not be relieved of the obligation to pay rent for which the commercial tenant is otherwise liable." NYC Administrative Code § 22-903(b). Moreover, under the harassment statute, if the Court finds unlawful tenant harassment, the remedies include civil penalties of between $1,000 and $10,000 (payable to the State, not the tenant), injunctive relief to prevent further harassment, punitive damages, and attorney fees, none [*3]which would be precluded by even a successful non-payment of rent action. See, NYC Administrative Code § 22-903(a). Indeed, nothing in the present nonpayment action would have prevented respondent Convenience on 9th from asserting its harassment claim through the Anti-Harassment Unit of the Department of Housing Preservation and Development (HPD), the Mayor's Office to Protect Tenants (MOPT), or a private right of action in any court of competent jurisdiction, as expressly provided for in the statute. Accordingly, respondent Convenience on 9th's jurisdictional defenses are stricken, and petitioner's motion for summary judgment is granted in its entirety as against respondent Convenience on 9th.

In addition to seeking summary judgment pursuant to CPLR 3212 against Convenience on 9th on its nonpayment of rent claim, petitioner seeks dismissal of Convenience on 9th's harassment counterclaim pursuant to "CPLR 3211(a)." Although petitioner fails to specify upon which section(s) of CPLR 3211(a) petitioner seeks dismissal, it is clear from the papers and arguments that dismissal is sought pursuant to CPLR 3211(a)(7).

The Court agrees with petitioner that Convenience on 9th does not allege sufficient facts to support its statutory tenant harassment counterclaim. Commercial tenant harassment is defined as "any act or omission by or on behalf of a landlord that (i) would reasonably cause a commercial tenant to vacate covered property, or to surrender or waive any rights under a lease or other rental agreement or under applicable law in relation to such covered property, and (ii) includes one or more of [fourteen specified unlawful predicate acts or omissions]." NYC Administrative Code § 22-902(a)(1)-(14). As none of the fact affidavits submitted by Convenience on 9th in opposition to petitioner's motion address the harassment counterclaim, the entirety of the facts alleged by respondent Convenience on 9th is in its answer in which Convenience on 9th alleges that petitioner harassed respondent "by interrupting the business activity of the commercial property." See, respondent Convenience on 9th's Answer with Affirmative Defenses, Counterclaims and Crossclaims, NYSCEF Doc. No. 11. Even with the relaxed pleading standards of the CPLR, this is insufficient to support Convenience on 9th's statutory harassment claim, particularly having had the opportunity to assert additional facts in its motion papers.

Moreover, even if that one vague factual statement in its answer had been sufficient for purposes of the pleadings, Convenience on 9th failed to refute, oppose, or even mention in any way, petitioner's application to dismiss respondent's sole counterclaim for harassment thereby abandoning this claim. See, Convenience on 9th's Affirmation in Opposition to Petitioners Motion to Summary Judgement (NYSCEF Doc #48), Attorney Affirmation in Opposition to Petitioners Motion to Summary Judgement (NYSCEF Doc #49), and Memorandum of Law in Opposition to Petitioners Motion for Summary Judgment (NYSCEF Doc # 50); see also, Knickerbocker Retail LLC v. Bruckner Forever Young Soc. Adult Day Care Inc., 204 AD3d 536 (1st Dept. 2022) ("As defendants do not address any affirmative defense other than frustration of purpose and impossibility, all other defenses are deemed abandoned"); 558 Seventh Ave. Corp. v. E&B Barbers, Inc., 2023 NY Slip Op. 30854 (Sup. Ct. New York Co., 2023) citing Joon Song v. MHM Sponsors Co., 176 AD3d 572 (1st Dept. 2019). Accordingly, respondent Convenience on 9th's counterclaim alleging harassment is deemed abandoned and dismissed with prejudice.

As for petitioner-landlord's motion to dismiss respondent-undertenant Convenience on 9th's crossclaims for harassment and breach of contract against respondent-overtenant Chelsea Leasehold Owner LLC, Convenience on 9th appears to have abandoned these crossclaims as well by also not addressing them in any way in its opposition papers. However, unlike the counterclaim, these crossclaims are not asserted by respondent Convenience on 9th against petitioner. Rather, they are brought by respondent-undertenant Convenience on 9th against respondent-overtenant Chelsea Leasehold Owner LLC. Accordingly, it is not clear how petitioner would have standing to seek dismissal of these crossclaims, except to the extent of seeking that these claims are severed so as to not complicate or delay the primary issue of this [*4]summary proceeding — i.e., possession of the subject premises. ^[FN1] To this extent, the Court agrees with petitioner. The Court has already granted petitioner a default judgment of possession and warrant of eviction as against respondent-tenant Chelsea Leasehold Owner LLC thereby extinguishing any possessory interests of Convenience on 9th. See, NYSCEF Doc. Nos. 44 and 45. Whatever claims Convenience on 9th might have against Chelsea Leasehold Owner LLC, such claims would be limited to money damages, not possession, and Convenience on 9th notably did not file any motion seeking a default judgment against Convenience on 9th on its crossclaims. Even if it had, under the circumstances, the Court may have severed such crossclaims from this summary proceeding anyway and dismissed them without prejudice.Accordingly, petitioner's motion to dismiss the crossclaims is granted to the extent of severing them and dismissing them without prejudice to Convenience on 9th's asserting these claims against Chelsea Leasehold Owner LLC in a plenary action.^[FN2]

Any arguments or relief sought by the parties in this motion that are not expressly discussed herein have been considered and found to be unavailing and denied.^[FN3]

ORDERED that petitioner's motion to amend the caption and pleadings pursuant to CPLR 2001 is granted nunc pro tunc, and the Clerk shall amend the caption to reflect the correct name of respondent-undertenant from "Desi Flavors Deli" to "Desi Flavors Deli Inc. d/b/a Desi Flavors Deli"; and it is further

ORDERED that summary judgment pursuant to CPLR 3212 is granted in favor of petitioner and against respondent Desi Flavors Deli Inc. d/b/a Desi Flavors Deli; and it is further

ORDERED that the Clerk shall enter final judgment of possession in favor of petitioner and against respondent Desi Flavors Deli Inc. d/b/a Desi Flavors Deli, warrant of eviction to issue forthwith, earliest date of eviction April 30, 2025; and it is further

ORDERED that summary judgment pursuant to CPLR 3212 is granted in favor of petitioner and against respondent Convenience on 9th AKA Smoke on 9th Exotics; and it is further

ORDERED that the Clerk shall enter final judgment of possession in favor of petitioner and against respondent Convenience on 9th AKA Smoke on 9th Exotics, warrant of eviction to issue forthwith, earliest date of eviction April 30, 2025; and it is further

ORDERED that petitioner's motion to strike respondent Desi Flavors Deli Inc. d/b/a Desi [*5]Flavors Deli's answer and dismissing its defenses is granted; and it is further

ORDERED that petitioner's motion to strike respondent Convenience on 9th AKA Smoke on 9th Exotics' answer and dismissing its defenses is granted; and it is further

ORDERED that petitioner's motion to dismiss respondent Convenience on 9th AKA Smoke on 9th Exotics' counterclaim alleging harassment against petitioner pursuant to CPLR 3211(a)(7) is granted and such counterclaim is dismissed with prejudice as abandoned; and it is further

ORDERED that petitioner's motion to dismiss respondent Convenience on 9th AKA Smoke on 9th Exotics' crossclaims alleging harassment and breach of contract against respondent-tenant Chelsea Leasehold Owner LLC pursuant to CPLR 3211(a)(7) is granted to the extent that such crossclaims are severed and dismissed without prejudice to Convenience on 9th AKA Smoke on 9th Exotics seeking such claims in a plenary action.

This constitutes the decision and order of the Court.