SABA Realty Partners LLC v APEX Limousines Inc.

[*1] SABA Realty Partners LLC v APEX Limousines Inc. 2011 NY Slip Op 51497(U) Decided on August 8, 2011 Supreme Court, Kings County Rivera, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 8, 2011
Supreme Court, Kings County

SABA Realty Partners LLC, Petitioner,

against

APEX Limousines Inc., APEX PFR, INC., SAS INTERNATIONAL GROUP, LTD., APEX COACH LLC and A-EXPRESS LIMO INC., Respondents.



26836/2010

 

Attorney's for petitioner

Boris Kogan, PLLC

236 Broadway, Suite 208

Brooklyn, New York 11211

(718) 384-9111

Attorney for Respondents

Malvina Lin, Esq.

1203 Avenue J, Suite 4B

Brooklyn, New York 11230

(718) 377-3500

Francois A. Rivera, J.

By notice of motion filed February 8, 2011, APEX Limousines Inc., APEX PFR, Inc., SAS International Group, Ltd., APEX Coach LLC and A-Express Limo Inc. (hereinafter "Respondents"), have jointly moved under motion sequence two, for an order dismissing the petition pursuant to CPLR 3211(a)(1),(7) and (8), and CPLR 3212. Petitioner, SABA Realty Partners LLC, (hereinafter "Petitioner") opposes the motion.

BACKGROUND

On October 29, 2010, petitioner commenced this special proceeding pursuant to Real Property Actions and Proceedings Law § 711 by filing a verified petition and notice of [*2]petition with the Kings County Clerk's office. On November 12, 2010, petitioner filed five affidavits of service of the notice of petition, verified petition and request for judicial intervention. On January 5, 2011, respondents joined issue.

The petition alleges the following salient facts. Petitioner is the landlord of the premises described as 400 Hamilton Avenue, Brooklyn, New York (hereinafter the subject premise). The respondents are occupying the subject premises and remaining in possession after the expiration of their lease term. Petitioner seeks, among other things, repossession of the subject premises and unpaid rent.

MOTION PAPERS

Respondents' notice of motion consists of their attorney's affirmation, two affidavits, an affidavit of service and six annexed exhibits labeled A through F. Exhibit A is a copy of the notice of petition and verified petition. Exhibit B is respondents' verified answer to the petition. Exhibit C is a copy of a lease agreement. Exhibit D is correspondence pertaining to a stipulation of discontinuance. Exhibit E purports to be a New York State Department of State's entity information of Apex Limousines Inc., SAS International Group, Ltd., and A-Express Limo Inc. Exhibit F purports to be a copy of New York City Taxi & Limousine Commission's For-Hire Vehicle Base License issued on June 12, 2009 to Apex Car & Limo Service, Inc.

On February 23, 2011, parties stipulated to extend the return date of the motion to April 1, 2011.

Petitioner's opposition papers consists of an affirmation of counsel, and two annexed exhibits labeled 1 and 2. Exhibit 1 is described as petitioner's verified amended petition. Exhibit 2 is described as a share purchase agreement dated February 22, 2010.

Respondents have replied with an attorney's affirmation.

LAW AND APPLICATION

Firstly, the Court notes that the amended verified petition annexed as exhibit 1 to petitioner's opposition papers attempts to add a new party to the petition. It is further noted, that the petitioner has not moved or cross-moved for permission to amend the petition to add a party as required by RPAPL 401. The Court, therefore, deems thedocument to be a nullity and not part of the instant motion (Barrett v. Dutchess County Legislature, 38 AD3d 651,653; 831 N.Y.S.2d 540, 543 [2d 2007]).

Respondents have moved to dismiss the petition pursuant to CPLR 3211(a)(1), (7) and (8) and CPLR 3212. It is noted that the affirmation of respondents' counsel contains [*3]no assertion of the basis of the attorney's knowledge of any facts or transactions described therein. Absent the attorney's assertion of a basis for his or her personal knowledge of the underlying facts and transactions, the affirmation is of no evidentiary value (See, Zuckerman v. City of New York, 49 NY2d 557, 563; 404 N.E.2d 718, 721 [1980]; Feratovic v. Lun Wah, Inc., 284 AD2d 368, 368; 725 N.Y.S.2d 892, 893 [2d 2001]). The court will, nevertheless, consider the legal arguments raised by respondents' counsel pertaining to alleged deficiencies in the pleadings and termination notice.

Respondents' counsel contends that the petitioner fails to submit supporting affidavits or documentary evidence and thus presents no substantive allegations to support the petition. Counsel further contends that the subject premise is not sufficiently described in the petition and that the termination notice does not describe the alleged tenancy or lease agreement.

Aleksey Mulerman stated in his affidavit that there are multiple occupants in the subject property that were not named by the petitioner in the instant petition. He did not, however, describe where these occupants could be found within the subject property nor did he describe the layout of the subject property. The notice of petition and petition does not contain either a copy of the lease in question or a description of the subject premise.

Pursuant to RPAPL 741(3) the petition is the controlling document which must include the specific description of the subject property which the petitioner seeks to recover possession of. The requirement for specificity is in part so that a Marshal may look to the petition papers and be able to determine what part of the premises is sought and which occupant is to be removed for the petitioner to regain possession (Bank of New York v. Kaplan, 13 Misc 3d 1202(A), 2006 WL 2497792 [N.Y.City Civ.Ct 2006]).

Alesky Mulerman and Bronislava Silver stated in their respective affidavits that they are married and are members of the petitioner. Mulerman swears to being a shareholder of Apex Car & Limousine Service Inc., a non-party. He also states that he is a 50% owner of each of the respondents. Mulerman also states that he concurs with the exhibits referenced in his counsel's affirmation and requested that the court consider the statements of his counsel as if he made them. His wife, Silver, also states that she concurs with the affidavit of her husband and the affirmation of her counsel. She also requested that the court consider the statements of her counsel as if she made them. Silver does not introduce any documents through her affidavit. The court declines to do so.

Concurring with facts sworn to by another is not the same as swearing to those facts. Neither Mulerman nor Silver stated that they were swearing to the truth of the facts stated in their attorney's affirmation. Therefore, the affirmation of facts alleged by respondents' counsel remain unsworn and are of no probative value.

The Court will now address the merits of each ground for dismissal separately. CPLR 3211(a)(1) warrants dismissal of an action if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see Goshen v [*4]Mutual Life Ins. Co. of NY, 98 NY2d 314, 326; 774 N.E.2d 1190, 1196 [2002]). Documents such as judicial records, contracts, deeds, wills, mortgages and even correspondence, the contents of which are "essentially undeniable," are acceptable and sufficient documentary sources for purposes of CPLR 3211(a) (1), not affidavits (see Fontanetta v. John Doe 1, 73 AD3d 78, 84-85; 898 N.Y.S.2d 569, 573 [2d 2010]). A complaint containing factual claims that are flatly contradicted by documentary evidence should be dismissed; (Well v. Yeshiva Rambam, 300 AD2d 580, 581; 753 N.Y.S.2d 512, 514 [2d 2002]; citing, Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 162; 654 N.Y.S.2d 791, 794 [2d 1997]).

Respondents' have attached documents to their motion but have not indicated what document they rely upon and how any of the document supports the application for dismissal. Respondents attach a lease agreement between a non-party and petitioner that was entered into after this action commenced. An unexplained lease agreement between a non-party and petitioner is irrelevant. Respondents have not established a conclusive defense to petitioner's claim for repossession of the subject premise. Furthermore, respondents fail to provide any document that conclusively establishes a defense to petitioner's claim for unpaid rent. Therefore, respondents motion to dismiss under CPLR 3211(a)(1) is denied.

Respondents also move to dismiss the petition pursuant to CPLR 3211(a)(7) for failing to state a cause of action. "The sufficiency of a complaint must be measured against what the law requires of pleadings in the particular case . . . [T]he complaint here is not required to meet any heightened level of particularity in its allegations (cf. CPLR 3016) . . . Instead, it need only contain [s]tatements . . . sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action.'" (E. Hampton Union Free Sch. Dist. v. Sandpebble Builders, Inc., 66 AD3d 122, 125; 884 N.Y.S.2d 94, 98 [2d 2009] aff'd, 16 NY3d 775 [2011] [standard applied in appeal of a denied CPLR 3211(a)(7) motion to dismiss] citing CPLR 3013; see also Cottone v. Selective Surfaces, Inc., 68 AD3d 1038, 1039; 892 N.Y.S.2d 466, 468 [2d 2009]). In determining whether a cause of action exists, the pleading must be afforded a liberal construction (Leon, 84 NY2d. at 87): the facts alleged are accepted as true, the plaintiff is accorded the benefit of every favorable inference (id. at 88), and the court determines whether the facts alleged fit within any cognizable legal theory (Morone v. Morone, 50 NY2d 481, 484; 429 N.Y.S.2d 592, 595 [1980]). "The criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." (Guggenheimer v. Ginzburg, 43 NY2d 268, 275; 401 N.Y.S.2d 182, 189 [1977]; Rovello v. Orofino Realty Co., 40 NY2d 633, 636; 389 N.Y.S.2d 314, 317 [1976]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss." (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19; 799 N.Y.S.2d 170, 178 [2005]). Where the allegations are ambiguous, the court resolves the ambiguities in [*5]plaintiff's favor (Snyder v. Bronfman, 13 NY3d 504, 508; 893 N.Y.S.2d 800, 804 [2009]).

A court is permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss, and affidavits "will almost never warrant dismissal unless they establish conclusively that [petitioner] has no cause of action." (See Sokol v. Leader, 74 AD3d 1180; 1182; 904 N.Y.S.2d 153, 156 [2d 2010]). In assessing a motion under CPLR 3211(a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint (Rovello v. Orofino Realty Co., 40 NY2d 633, 635; 389 N.Y.S.2d 314, 316 [1976]).

The petition requests relief for two causes of action pursuant to RPAPL 711: one for repossession of premises and the other for unpaid rent. RPAPL 711 (1) & (2) sets forth the requirements for both causes of actions. To commence an action for repossession of premises pursuant to RPAPL 711(1), the petitioner need only prove that at the time the proceeding had commenced, the tenant or tenants remain in possession beyond the expiration of their term (Perrotta v. Western Regional Off-Track Betting Corp., 98 AD2d 1, 2; 469 N.Y.S.2d 504, 505 [4d 1983]). Expiration of term can be shown through lapse of time and not by election of the landlord to forfeit the lease for breach of a condition (id. at 2). Here, the termination notice incorporates by reference into the petition the fact that respondents had a month-to-month lease agreement with petitioner (see Jewish Theological Seminary of America,258 AD2d. 337, 338; 685 N.Y.S.2d 215, 215 [N.Y.A.D. 1 Dept. 1999]). New York Real Property Law § 232-a requires month-to-month tenants be given at least 30-days notice that the landlord seeks to repossess the premises. It states:

No monthly tenant, or tenant from month to month, shall hereafter be removed from any lands or buildings in the city of New York on the grounds of holding over his term unless at least thirty days before the expiration of the term the landlord or his agent serve upon the tenant, in the same manner in which a notice of petition in summary proceedings is now allowed to be served by law, a notice in writing to the effect that the landlord elects to terminate the tenancy and that unless the tenant removes from such premises on the day on which his term expires the landlord will commence summary proceedings under the statute to remove such tenant therefrom.

The petition sufficiently alleges and references particularized facts to give the court and respondents notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and the material elements of the cause of action. The petition states that respondents occupy the premises pursuant to an expired rental agreement and also describes the premises. The petition further alleges through [*6]incorporation, that the tenancy is from month-to-month, and that respondents were served with notice of petitioner's intended election to terminate the tenancy at a specific date. Taking all of the allegations as true, and giving the petitioner every favorable inference, this Court finds that petitioner states a cause of action under RPAPL 711 (1). No evidence offered by the respondents conclusively demonstrates that a material fact pleaded in the petition is incorrect thereby invalidating the cause of action.

However, the court finds that the description of the premises sought to be regained is insufficient and not in accordance with the requirements of RPAPL 741(3). The affidavit of Mulerman advises that the subject premises contains multiple occupants who are not named in the petition. The petition is silent as to the whether the petitioner seeks occupancy of the entire building or only a part thereof. The fact that the subject premise contains multiple occupants besides the named respondents leaves the location of that part of the premises sought to be recovered ambiguous. Therefore, the notice of petition and petition are not in compliance with the requirement of RPAPL 741(3).

To recover unpaid rent, the petitioner must abide by RPAPL 711(2) which requires the petitioner-landlord to show that the tenant has defaulted in rent pursuant to their lease agreement. Additionally, RPAPL 711(2) requires the landlord to make a demand for the rent, or to provide the tenant with at least three days written notice requiring either the payment of rent, or in the alternative, possession of the premises. RPAPL 711 (2) also allows the landlord to waive his right to commence a summary proceeding for unpaid rent if he provides the tenant with written consent to remain in the premises.

The petition fails to allege that respondents defaulted in their rent, that a demand for rent was made, or that written notice for unpaid rent was served upon the respondents. Furthermore, the petitioner failed to remedy this defect by providing any allegation in their affidavit in opposition, or by providing any documentary evidence which would supplement the deficiencies in the pleadings. The petition and the accompanying evidence offered by the petitioner do not make out the material elements of a claim for unpaid rent. The petitioner's claim for unpaid rent is therefore dismissed pursuant CPLR 3211(a)(7) for failure to state a cause of action.

Respondents also move to dismiss the petition pursuant to CPLR 3211(a)(8) claiming that the court lacks personal jurisdiction. The burden of proving personal jurisdiction is ultimately on the party asserting personal jurisdiction (see College v. Brady, 84 AD3d 1322, 1322; 924 N.Y.S.2d 529, 531 [2d 2011]). Attached to the notice of petition and petition to the instant proceeding are five affidavits of service by a licensed service processor, one for each respondent. Generally, a process server's affidavit of service constitutes prima facie proof of the allegations contained within the affidavit of service (Rox Riv 83 Partners v. Ettinger, 276 AD2d 782, 783; 715 N.Y.S.2d 424, 425-426 [2nd [*7]Dept., 2000]; see also Kaywood v. Cigpak, Inc., 258 AD2d 623, 623; 685 N.Y.S.2d 770, 771 [2nd Dept., 1999]; and Manhattan Sav. Bank v. Kohen, 231 AD2d 499, 500; 647 N.Y.S.2d 256, 257 [2nd Dept.,1996]). Here, the affidavits allege that on November 4, 2010, a licensed service processor served an individual known to be the managing or authorized agent of the respondents. Respondents are comprised of four corporations and one limited liability company. RPAPL 735 authorizes personal service of the notice of petition and petition to properly effectuate personal service. CPLR 311 and 311-a govern the service requirements of corporations and limited liability companies. CPLR 311 and 311-a allow for managing and other authorized agents to receive service on behalf of the corporation and company. The petitioner has satisfied its burden of showing that personal service was properly obtained over the respondents.

Respondents do not contradict the allegations of fact contained in the aforementioned affidavits of service. Nor do the respondents provide any allegation of fact by someone with personal knowledge, or any other source of proof, to contradict the sufficiency of the service of the notice of petition and petition. Respondents only allege that Steve Lourovsky is not an employee of any of the respondents (Aleksey Aff. ¶ 13). Steve Lourovsky is the individual named in the affidavits of service of the notice of termination. CPLR 3211(a)(8) concerns personal jurisdiction that is obtained through the proper service of the notice of petition and petition. CPLR 3211(a)(8) is not the vehicle to use to dismiss proceedings for substantive deficiencies, as is the situation here (See: Thrasher v. U.S. Liability Ins. Co., 19 NY2d 159, 166; 278 N.Y.S.2d 793, 798 [1967] [improper notice to defendant did not create a jurisdictional defect, but a substantive defect precluding courts from providing relief, not hearing the case]).

The respondents' motion to dismiss the petition pursuant to CPLR 3211(a)(8) is denied.

Lastly, respondents move under CPLR 3212 for summary judgment dismissing the petition for failure to state a cause of action. A party may move for summary judgment once issue has been joined (see Jean v. New York City Transit Authority, 925 N.Y.S.2d 657, 658; 2011 NY Slip. Op. 05455 [2d 2011]; and Castiglione v. Quinn, 85 AD3d 704, 704; 924 N.Y.S.2d 837, 837 [2d 2011]), and the motion must attach all required pleadings (CPLR 3212 (b)). Summary judgment may be granted only when it is clear that no triable issue of fact exists. (Alvarez v. Prospect Hospital, 68 NY2d 320, 324; 508 N.Y.S.2d 923, 925 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts. (Guiffirda v. Citibank, 100 NY2d 72, 81; 760 N.Y.S.2d 397, 403 [2003]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers. (Ayotte v. Gervasio, 81 NY2d 1062, 1063; 601 N.Y.S.2d 463, 464 [1993]). As previously indicated, the Court recognizes a pleaded cause of action under RPAPL [*8]711(1), therefore, respondents' motion to dismiss the cause of action for repossession pursuant to CPLR 3212 is denied.

In sum, respondents' motion to dismiss the petition is granted due to the failure sufficiently identify the subject premise in accordance with RPAPL 741(3).

The foregoing constitutes the decision and order of this court.

Enterx

J.S.C.