63 Middle Neck Rd. LLC v Benlevi
Annotate this Case
Download PDF
63 Middle Neck Rd. LLC v Benlevi 2012 NY Slip Op 30786(U) March 19, 2012 Supreme Court, Nassau County Docket Number: 19561/10 Judge: Joel K. Asarch Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: I. A. PART 13 63 MIDDLE NECK ROAD LLC, Plaintiff DECISION AND ORDER - against - IndeJe No: 19561/10 IRA BENLEVI, Motion Sequence No: 001 Original Retu Date: 01- 20-2012 Defendant. ---------------------- Je PRESENT: HON. JOEL K. ASARCH, Justice of the Supreme Court. The following named papers numbered 1 to 5 were submitted on this Notice of Motion on Januar 2012: Papers numbered Notice of Motion , Affirmation in Support Memorandum of Law Affidavit (not notarized) in Opposition Reply Affirmation The motion by plaintiff, 63 Middle Neck Road , LLC , for an Order of this Cour granting sumar judgment pursuant to CPLR 3212 as to the liabilty of defendant , Ira Benlevi , for the payment of rent , additional rent , and other charges , and setting the matter down for Inquest on the issue of damages , is decided as follows: The underlying action for money damages , including additional rent , was commenced in this Cour on October 15 , 2010. Such action arose out oflandlord/tenant litigation heard in the First District Court in the County of Nassau in April 2010. [* 2] The plaintiff leased the subject premises, 63A Middle Neck Rd. , Great Neck, NY , to the defendant. Upon defendant's alleged non- payment under the lease agreement for the time period of September 2009 though April 2010 , plaintiff commenced a landlord/tenant summar proceeding in the First District Cour of the County of Nassau , Docket # LT- 002570- 10, in April 2010. In May 2010 , based on the defendant's failure to appear in the proceeding, the Cour awarded possession and a default judgment for money damages , including the outstanding rent , to the plaintiff. In October 2010, the plaintiff commenced the underlying action seeking payment for "rent , additional rent, and other charges " for the time period from May though August 2010 , the remaining time period under the lease agreement. FACTS In August 1995 , plaintiff leased to defendant, pursuant to a lease agreement , the subject premises. The lease term eJepired on August 31 , 2005. The paries entered into an EJetension and Modification Agreement and the lease was eJetended to August 31 , 2010. In August 2007 , upon the defendant's alleged non- payment of rent for the months of June , July and August 2007 , the plaintiff commenced an initial sumar proceeding in the First District Cour of the County of Nassau. In November 2007 , the paries settled the matter by way of a The Stipulation provided in relevant par amount owed in the amount of $7 500 in (r)espondent shall be given a reduction in the full satisfaction of any and all claims respondent has against petitioner relative to the renovations done to the premises at Neck, New York... Stipulation of Settlement. 63 Middle Neck Road, Great Defendant was represented by counsel at the time of the eJeecution of the stipulation. In April 20 1 0 , plaintiff commenced a second sumar proceeding against the defendant upon [* 3] defendant's alleged failure to tender rent and other obligations pursuant to the lease agreement and its eJetensions and/or amendments thereto. As defendant failed to appear , entered against him in May 2010 in the amount of$15 835. a default judgment was , and a warant of eviction was issued to the plaintiff. The judgment was entered in the office of the Nassau County Clerk in June 2010 and the same , with Notice of Entry, was personally served upon the defendant on June 10 2010. The defendant was evicted from the premises in August 2010. ARGUMENTS The plaintiff argues that there are no triable issues of fact , based on theories of documentar evidence , release , collateral estoppel , res judicata, and accord and satisfaction. It submits , as supporting evidence , deposition testimony of the plaintiff, the pleadings of the two sumar proceedings in the First District Cour, the November 2007 Stipulation of Settlement , copies of the lease agreement and its eJetensions , and the defendant' s Responses to the instant action. The pro se defendant contends inter alia that the plaintifflandlord paricipated in unethical conduct and breached the lease agreement by altering and renovating the subject premises in maner that was injurious to his enjoyment and use thereof. He also is requesting that this Cour vacate the default judgment as he was subjected to countless cour appearances and he made an error regarding the cour date before the First District Court. DISCUSSION par moving for sumar prima facie judgment must make a showing of entitlement to judgment as a matter oflaw , offering suffcient evidence to demonstrate the absence of any issues of fact (see of New York, Winegradv. New York Univ. Med Ctr. 49 NY2d 557(1980) ). Once such a prima facie 64 NY2d 851(1985), Zuckerman material v. City showing has been made , the burden [* 4] shifts to the pary opposing the motion for sumar judgment to produce evidentiar proof in (see admissible form sufficient to raise material issues of fact which require a trial of the action v. Alvarez Prospect Hosp. v. Zuckerman 68 NY2d 320 (1986), Here , the plaintiff has only established its prima facie City of New York, supra). entitlement to parial summar judgment on the issue of liabilty of the defendant. Although plaintiff produced the documenta evidence of the lease agreement and its eJetensions , the stipulation of settlement , the judgment as awarded by the First District Court , the defendant's ' s testimony indicating acknowledgment of non- payment of rent and that rent is stil due and owing, and an affdavit of service indicating personal service of the subject judgment and notice of entr on the defendant , such evidence supports defendant' s liability for rent and other obligations under the lease for the time period from September 2009 through April 2010. Generally, the issuance of a warant of eviction terminates the landlord- tenant relationship, thereby precluding a landlord from seeking rent after the eviction from a former , evicted tenant uness (see Holy the lease specifically provides that the tenant remains liable for rent following an eviction Props. v. Cole Prods. 674 (2nd Dept 2010), 87 NY2d 130 (1985), Centre Great Neck, LLC Johnston v. v. MGM Emerald Enterprises, Inc. 69 AD3d Rite Aid Corp., 292 AD2d 484 (2 Dept 2002)). Here , a warant was issued in May 2010. After a tenant has been evicted in summar proceedings , the lease is at an end and what surives is a liabilty, not for rent , but for damages Bedford Myrtle Corp. v. (see Martin 28 Misc. 2d 33 (N. Y.Sup Ct 1960)). A reading of aricle 18 of the lease , in conjunction with paragraphs A- 16. 01 of the rider thereto , indicates the tenant' s obligation to pay damages in the event of an eviction. ... ... [* 5] The subject lease between the paries provides in relevant par that the lessee: shall also pay Landlord as liquidated damages for the failure of Tenant to observe and perform said Tenant' s covenants herein contaned, any deficiency between the rent hereby reserved and/or covenanted to be paid and the net amount, if any, of the rents collected on account of the lease or leases of the demised premises for each month of the period which would otherwise have constituted the balance of the term of this lease... (see Notice of Motion , EJehibit 1 18). It fuer provides: (t)he failure of Owner to re- let the premises or any par or pars thereof shall not release or affect Tenant' s liability for damages. In computing such liquidated damages there shall be added to the said deficiency such eJepenses as Owner may incur in connection with re- letting, such as legal eJepenses , reasonable attorneys ' fees , brokerage , advertising and for keeping the demised premises in good order or for preparg the same for re- letting... " (see Notice of Motion , EJehibit 1 In light of the foregoing, there is a distinction between rent and damages. As the lease and rider are silent regarding the payment of rent in the event of an eviction of a tenant , this Cour is not empowered to hold the tenant/defendant liable for additional rent incured after the issuance of the May 18 , 2010 warant of eviction. In consideration of the documents submitted in opposition by the defendant, ths Cour notes the difficulty in reviewing motions fied by pro se litigants and , while approaching the issues they present with due care , it recognizes that such paries should not be afforded any more - or less - rights than the represented litigant. The Cour notes that pro se litigants are unfamiliar with the law and/or its correct application , as well as cour procedures. While this Cour acknowledges this defendant must be given some latitude due to the lack offormallegal training and that his pleadings and papers should be given every favorable interpretation which can be drawn , the pleadings and legal arguents must satisfy minimum legal standards (see Roundtree v. Singh, 143 AD2d 995 (2 Dept 1988)). [* 6] It appears , based on the record , that the defendant is making a cross motion seeking an Order of this Cour opening his default , and permitting him to argue the merits of the case. For several reasons , such a cross-motion must be denied. First , this Cour did not render the default judgment. Rather , the District Cour ofthe County of Nassau is the proper foru for such a motion. Furermore , to open a default , must show reasonable eJecuse and meritorious defense. CPLR ~ 5015 (a) provides in relevant par: (t)he cour which rendered a judgment or order may relieve a par from it upon such terms as may be just, on motion of any interested person with such notice as the cour may direct , upon the ground of: .... eJecusable default , if such motion is made within one year afer service of a copy of the judgment or order with written notice of its entr upon the moving par, or , if the moving par has entered the judgment or order, within one year after such entry... Although the relief sought by the defendant is available under CPLR ~317 , he is limited to the provisions set forth in CPLR ~5015 , as CPLR ~317 applies when " (a) person served with a sumons other than by personal delivery to him or to his agent for service under Rule 318 within or without the state . The undisputed evidence indicates that plaintiff was personally served with the Judgment and Notice of Entry. Furer, he does not dispute receiving notice of the landlord/tenant action giving rise to the default judgment , nor does he indicate in his opposition that he was served alternatively. Defendant alleges that he made an error regarding the cour calendar, but he did not contact the cour after he leared of default (see Notice of Motion , EJehibit 13 , Tr. Ira Benlevi , p. 21 , In. 6 22). The only other reason he proffers for his non appearance is that he was " eJehausted" . Defendant [* 7] has not proffered a meritorious defense , even ifhis non appearance was deemed to be eJecusable. He is attempting to argue the fairness of the November 2007 Stipulation of Settlement and the related facts regarding the renovation of the subject premises. As already noted herein , the paries , in consideration ofa $7 500 offset in rent , have settled the matter in full. Moreover , defendant was not pro se litigant at that time. A stipulation is a contract between the paries, and as such is to be constred according general principles of contract law. Stipulations of settlement are favored by the cours and not lightly cast aside (see Hallock v. State 64 NY2d 224 (1984). Unless there is suffcient cause to invalidate a contract-such as fraud , collusion , mistae , accident, duress , or unconscionabilty; or where the agreement is contrar to public policy or suggests an ambiguity indicating that the words did not fully and accurately represent the paries agreement-paries of a stipulation made during litigation. Furher wil not be relieved from the consequences O)udicial review is to be eJeercised circumspectly, sparingly and with a persisting view to the encouragement of paries settling their own differences (see Middleton v. Middleton 174 AD2d 655 (2nd Dept 1991), quoting Christian v. Christian, 42 NY2d 63 (1977)). Additionally, the Stipulation entered into by the plaintiff and defendant contans release language , releasing plaintiff from any and all claims defendant has against plaintiff regarding the renovation work performed on the premises. constred according 2d 371 (2 Releases , like stipulations , are contracts and are to the same general principles of contract law (see Shklovskiy v. Khan , 273 Dept 2000)). Finally, a motion to vacate a default judgment should also be made as soon as reasonably practicable after learing of the default. Here , defendant knew that a default judgment had been [* 8] entered in June 2010 when he was personally served with notice of same. He did not eJepeditiously move to vacate his default until the instant motion was fied and served upon him in December 2010 (see Hoffman v. Sno Haus Ski Shops of Huntington, Inc. 185 AD2d 874 (2d Dept 1992)). Even the delay is considered minimal and this Cour gives deference to the theory that cases should be resolved on the merits , the issues complained of by the defendant were resolved by way of stipulation. Accordingly, partial summar judgment is granted to the plaintiff as to the liabilty of defendant only for damages arising from his default and eviction from the premises , pursuant to the lease and its rider. The defendant's cross-motion is denied. This matter is respectfully referred to the Calendar Control Par for Inquest and shall appear on the calendar of CCP on the 26 day of April , 2012 at 9:30 a. m. subject to the approval of the Justice there presiding. The plaintiff shall serve a Notice of Inquest , together with a copy of this Order and the Note ofIssue upon the defendant , by certified mail retur receipt requested , and shall serve copies of same together with receipt of payment upon the Calendar Clerk of this Cour no later than ten (10) days prior to the date of Inquest. The directive with respect to an inquest is subject to the right of the Justice presiding in CCP to refer the matter to a Justice , Judicial Hearng Officer , or a Cour Attorney/Referee as he or she deems appropriate. The failure to appear as directed may be deemed an abandonment ofthe claims giving rise the inquest. The foregoing constitutes the Decision and Order of the Cour. [* 9] Dated: Mineola, New York March 19 2012 ENTER: Copies mailed to: Salvatore E. Benisatto , Esq. Attorneys for Plaintiff ENTERED MAR 2 2 2012 Ira Benlevi Pro Se Defendant NASSAU COUNTY COUNTY CLERK' S OFFICE'
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
