Petitioner and respondent entered into a commercial lease dated April 16, 2010 for the ground floor and basement located in 242 Flatbush Avenue in Brooklyn, New York for a ten-year term commencing May 1, 2010 and expiring April 30, 2020. On March 9, 2015, the parties agreed that the lease "shall be extended an additional five (5) year term and shall expire on April 31 [sic], 2025" (NYSCEF Doc No 74 at 46-47) (the lease extension). Paragraph 4 of the lease extension provided that "[a]ll remaining provisions of the Lease and addendums remain in full force and effect except the following:" and set forth six paragraphs of varying lease terms. In paragraph 6, the lease extension states: "All notices from DOB, water Dept, Real Estate etc all Government Agencies upon presentation by the Agencies have to be paid upon presentation by Landlord or this Extension will be null + void" (id.).

In 2017, respondent filed for bankruptcy. Petitioner, as a claimant in that proceeding, moved for various aspects of relief, including a determination that the parties' lease "had been terminated by operation of law pursuant to section 365 (d) (4) (A) of the Bankruptcy Code" (NYSCEF Doc No 130 at 8). The parties entered into a stipulation dated April 4, 2017 to resolve the motion, whereby respondent agreed to cure the monetary defaults under the lease in installments through August of 2017 and, upon completion of the payments, the lease "shall be deemed reinstated" (id. at 11). The parties also made a joint application to approve another settlement agreement dated June 7, 2018, which settled the parties' dispute regarding unpaid water charges (NYSCEF Doc No 123).

Respondent claims it timely paid all sums owed pursuant to the stipulation (id. at 3, ¶ 6; NYSCEF Doc No 79 ^[FN1] at 3) and thus the lease was reinstated during the bankruptcy proceeding, which was not disputed by petitioner during oral argument on this motion.

Thereafter, petitioner submits that certain fines or violations were outstanding or accrued from 2019 through 2020 (see generally NYSCEF Doc No 132 at ¶ 15, citing NYSCEF Doc Nos 74-83). Consequently, the lease extension became null and void and petitioner deemed respondent to be a month-to-month tenant since April 2020.

On May 18, 2020, petitioner served a 90-day notice terminating the tenancy effective August 31, 2020 and commenced the instant holdover proceeding on September 3, 2020 (see NYSCEF Doc Nos 7, 1). Respondent failed to answer the petition and petitioner was granted a judgment of possession on default on May 25, 2021 (NYSCEF Doc No 14). Respondent was evicted from the premises and moved by order to show cause dated July 21, 2021 to vacate its default in answering, to dismiss the petition, and be restored to possession (NYSCEF Doc No 23). The Court granted the motion to the extent of vacating respondent's default and permitting leave to answer and appear, and otherwise denied the motion by order dated August 31, 2021 (NYSCEF Doc No 30 [Mallafre Melendez, J.], affd 2022 NY Slip Op 51214[U] [App Term 2d, 11th & 13th Jud Dists 2022]).

In the interim, supplemental respondents Boil Corp. and Nahn Dieu Khoo took possession of the premises pursuant to a lease dated July 15, 2021. They were impleaded with leave of the Court (see NYSCEF Doc Nos 61, 66) and answered the supplemental petition on November 27, 2023 (NYSCEF Doc No 72).

Upon the foregoing papers, respondent moves pursuant to CPLR 3212 for summary judgment to dismiss the petition and to proceed to trial on its counterclaim and the supplemental petition.^[FN2]

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 v Farquharson, 75 Misc 3d 1223[A], 2022 NY Slip Op 50646[U], *3 [Civ Ct, Queens County 2022]; 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]).

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The "evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in favor of the nonmoving party" (Valentin v Parisio, 119 AD3d 854, 855 [2d Dept 2014]).

"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 [*2]562, 569 [2002], quoting Slamow v Del Col, 79 NY2d 1016, 1018 [1992]). "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; see Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007] ["the intention of the parties may be gathered from the four corners of the instrument and should be enforced according to its terms"]).

Courts have "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]; see 159 MP Corp. v Redbridge Bedford, LLC, 33 NY3d 353, 356 [2019] ["agreements negotiated at arm's length by sophisticated, counseled parties are generally enforced according to their plain language pursuant to our strong public policy favoring freedom of contract"]).

"Extrinsic evidence of the parties' intent may be considered only if the agreement is ambiguous, which is an issue of law for the courts to decide" (Greenfield, 98 NY2d at 569). "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'" (id., quoting Breed v Insurance Co. of N. Am., 46 NY2d 351, 355 [1978]).

In support of its motion, respondent first argues that the 2017 settlement agreement in the bankruptcy proceeding that deemed the lease "reinstated" precludes petitioner from contesting the validity of the lease, including the lease extension. The Court finds this argument unavailing to show that respondent had an existing lease at the time this holdover proceeding commenced. Because, even assuming respondent's contention is true and respondent's tenancy was reinstated in 2017, respondent cannot take the benefit of one provision of the lease extension, which extended the tenancy to 2025, without taking the terms and conditions set forth in the lease extension as a whole — namely, paragraph 6 and the requirement to pay sums owed to a governmental agency upon presentation by the landlord.

Respondent also argues that the stipulation's reinstatement of the lease, and lease extension, equates to an alleged "waiver of (or, alternatively, acceptance of the cure of) any arguable arrears at or after the date of execution of that Addendum" (NYSCEF Doc No 129 at ¶ 29). "A waiver is the voluntary abandonment or relinquishment of a known right" (Jefpaul Garage Corp. v Presbyterian Hosp. in City of NY, 61 NY2d 442, 446 [1984]). It cannot be said that petitioner could have waived its rights to the unknown arrears or other sums that may become due in the future back at the time of the stipulation in 2017.

Respondent further claims that courts should not engage in strained interpretations that render absurd results. As an example, respondent points out that the subject provision fails to afford respondent an opportunity to contest the violations before the appropriate governmental agency prior to paying it. However, it is clear to the Court that the parties use of words: "or this Extension will be null + void" demonstrates a clear and unambiguous remedy if respondent breached the obligation set forth in the very same provision. The remedy is automatic and occurs without any potential for delay. Tellingly, the paragraph at issue is listed among five other provisions that were specifically "except[ed]" from the applicability of all other provisions of the parties' lease. Thus, contrary to respondent's contentions, paragraph 6 is also excepted from e.g., any potentially required notice to cure or cure period as set forth in paragraphs 14.1 and 14.2 of [*3]the lease. As the Court can read paragraph 6 consistently in such a way, the Court finds that there is no strained interpretation, nor any commercially unreasonable result. It is simply the consequence of the bargain (see, e.g., 159 MP Corp. v Redbridge Bedford, LLC, 33 NY3d 353, 356 [2019]).^[FN3]

Respondent also argues that the lease extension "had already vested upon payment by [respondent] the amounts due as of February 8, 2015" and the validity of the lease extension "was not contingent upon future payments" (NYSCEF Doc No 129 at ¶ 21). However, to find that the lease extension could remain valid, irrespective of future notices or defaults, would essentially be asking this Court to re-write the agreement (see Nomura Home Equity Loan, Inc., Series 2006-FM2 v Nomura Credit & Capital, Inc., 30 NY3d 572, 581 [2017]) ["Courts may not, through their interpretation of a contract, add or excise terms or distort the meaning of any particular words or phrases, thereby creating a new contract under the guise of interpreting the parties' own agreements"]).

Respondent goes on to argue that the provision is silent as to whether it applied to notices existing at the time the lease extension was executed or to notices presented in the future. As such, respondent argues that because the provision is susceptible to two reasonable interpretations, it creates an ambiguity, which must be construed against the drafter and resolved by a trier of fact via parole evidence (NYSCEF Doc No 133 at ¶ 10).

As noted above, the Court finds that the lease extension's terms were facially clear and unambiguous. But if respondent claims any ambiguity, there is no proof of any other intended meaning of paragraph 6. The motion papers do not include an affidavit of merit as required by CPLR 3212 (b), nor any other proof that the parties intended the provision to apply solely to "notices" existing at the time the lease extension was executed in 2015.^[FN4] In other words, if the contract was ambiguous and parole evidence was needed to interpret the agreement, what would such evidence be?

As the Court finds that respondent failed to demonstrate that it did not default on the lease extension, such that its tenancy remained in effect, respondent did not meet its burden entitling it to judgment as a matter of law dismissing the petition. Accordingly, the motion should be denied, "regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324-25 [1986]). However, in opposition, petitioner argued that the Court should search the record and render judgment in its favor without the need to make a cross-motion (see, e.g., Czenszak v Iasello, 227 AD3d 772, 774 [2d Dept 2024]).

In support of petitioner's request for summary judgment, it relies upon its notice to admit, which contains the parties' lease and lease agreement (ex A); a letter from an architect dated December 17, 2019 about the plans for clearing certain violations (ex B); e-mails between the parties' representatives, some including Marshal Henry Daley, regarding outstanding rent and property tax, water/sewer (DEP) charges, and business improvement district (BID) tax (exs C-I); and copies of violations issued by the City of New York from 2014-2017 (ex J) (NYSCEF Doc No 74-83). Respondent's reply admitted to the truthfulness and accuracy of the lease agreements (ex A); denied the truthfulness and accuracy of the violations (ex J); and neither denied nor admitted the truthfulness and accuracy of the architect's letter and the e-mails (exs B-I) and instead refers to the trial court for its admissibility (NYSCEF Doc No 84).

In its papers, petitioner contends that, "[b]ecause the Respondent failed to deny the genuineness or the truth of the facts, the documents must be deemed admitted as genuine, and the Respondent's admissions that it failed to timely make payments as required in the Lease Extension must be accepted as true" (NYSCEF Doc No 132 at ¶ 54).

Respondent argues that notices to admit that seek to elicit admissions of "contested ultimate issues" are "palpably improper" and have "no legal effect even if not answered" (NYSCEF Doc No 133 at ¶ 9). However, the cases cited do not support the stated proposition and were of a different procedural posture than the circumstances presented here (cf. HSBC Bank USA, N.A. v Halls, 98 AD3d 718, 721 [2d Dept 2012] [affirming a trial court's decision to give the responding party an extension of time to respond to the notice to admit]; DeSilva v Rosenberg, 236 AD2d 508, 508-09 [2d Dept 1997] [finding a motion for a protective order to strike the notice to admit should have been granted]).

In any event, the requests to admit were proper, even if they concerned ultimate issues that were central to petitioner's case. Whether there was a default, post-2017, does not appear to be seriously in dispute — the focus of the instant motion for summary judgment was grounded in contract interpretation, which is a matter of law (see, e.g., Central Nassau Diagnostic Imaging, P.C. v GEICO, 28 Misc 3d 34, 36 [App Term, 1st Dept 2010] ["plaintiff was justified in seeking admissions on those facts, since, on the record before us, no substantial dispute existed between the parties on those facts. We note in this connection that, other than in its conclusory answer, defendant never denied the accuracy of the facts on which plaintiff sought admissions"]).

The Court agrees with petitioner that the documents must be deemed admitted and respondent's party admission that it defaulted on its obligation set forth in the lease extension must be taken as true (see Central Nassau Diagnostic Imaging, P.C. v GEICO, 28 Misc 3d 34, 37 [App Term, 1st Dept 2010] ["plaintiff's requests for admissions were appropriate, and defendant, by failing to respond to the notice to admit or seek other appropriate relief, is deemed to have admitted the facts on which plaintiff sought admissions"]). More specifically, in an email to petitioner dated February 15, 2020, respondent admitted that it was behind on rent and that it "owe[s]" petitioner "Property Tax for June 2018 and June 2019," "BID Tax 2018 and 2019," and [*4]"DEP (water/sewer) 2019" (NYSCEF Doc No 82). This falls within the purview of paragraph 6 of the lease extension and the Court sees nothing in the record to the contrary.

As noted above, respondent did not submit any party affidavit and, although the attorney's affirmation attempts to infer that there was no default or that there could be a question of fact regarding the default (see NYSCEF Doc No 129 at ¶ 35), it is considered hearsay as the attorney does not have personal knowledge of the facts (see, e.g., Saunders v J.P.Z. Realty, LLC, 175 AD3d 1163, 1164-65 [1st Dept 2019] ["A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent's prima facie burden"]; see also Zuckerman v City of New York, 49 NY2d 557, 562 [1980] ["one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim . . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient"]).

Accordingly, it is hereby ORDERED that respondent's motion for summary judgment is denied; and it is further

ORDERED that, upon search of the record, the Court grants summary judgment in favor of petitioner; and it is further

ORDERED any stays in place are lifted; and it is further

ORDERED that the supplemental petition is denied and dismissed as moot as respondent's tenancy was lawfully terminated.

This constitutes the decision and order of the Court.