Rand v Bedford Hotel, Inc.

[*1] Rand v Bedford Hotel, Inc. 2015 NY Slip Op 50725(U) Decided on May 15, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 15, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
570178/15

William Rand, Ruth Alpert, and Esther Evans (As Successors in interest to the Estate of Merna Alpert), Andre J. Jagendorf, Richard Read and William C. Rand, Petitioners-Landlords-Respondents,

against

Bedford Hotel, Inc., Respondent-Tenant-Appellant, - and - Avenue S Restaurant Corp. d/b/a Fagiolini and "XYZ Corp.," Respondents.

Tenant appeals from an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), dated May 21, 2014, which granted landlord's motion for summary judgement in the principal sum of $536,538.42 in a holdover summary proceeding.

Per Curiam.

Appeal from order (Debra Rose Samuels, J.), dated May 21, 2014, deemed an appeal from the ensuing final judgment (same court and Judge), entered May 30, 2014, and so considered (see CPLR 5520[c]), final judgment affirmed, with $25 costs.

We sustain the grant of landlord's motion for summary judgment on its claim to recover use and occupancy for the period tenant remained in possession of the subject premises. Landlord met its initial burden by submitting evidence establishing the amount of rent due under the parties' commercial lease agreement for the three-month period in question (see Mushlam, Inc. v Nazor, 80 AD3d 471, 472 [2011]), including amounts for "Basic Net Rent," "Percentage Rental" and "Additional Percentage Rental," as those terms are defined in the agreement. In opposition, tenant failed to raise any triable issue and, indeed, did not refute landlord's calculations or offer any evidence as to reasonable value. Nor was a triable issue as to reasonable value raised by tenant's bare, conclusory allegations that landlord purportedly received assets upon taking over tenant's hotel business, such as reservations made before tenant vacated the premises.

Although landlord previously moved for summary judgment of possession and successive summary judgment motions are generally disfavored (see Jones v 636 Holding Corp., 73 AD3d 409 [2010]), the court was not precluded from addressing the merits of the underlying motion (see Giardina v Lippes, 77 AD3d 1290, 1291 [2010], lv denied 16 NY3d 702 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 15, 2015