Perez Realties, LLC v Ottley
Annotate this CaseDecided on March 5, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ
2013-161 K C.
Perez Realties, LLC, Appellant,
against
Michelle Ottley, Respondent, -and- "JOHN DOE" and "JANE DOE", Undertenants.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lydia C. Lai, J.), dated August 15, 2012. The order, insofar as appealed from as limited by the brief, granted the branch of tenant's motion seeking to dismiss the petition in a holdover summary proceeding.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
In this nonprimary-residence holdover proceeding, landlord appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branch of tenant's motion seeking to dismiss the petition.
Although no affidavit on personal knowledge was submitted in support of or in opposition to tenant's motion, the papers submitted by landlord's attorney in opposition to the motion, which papers may be considered to cure the deficiencies in tenant's moving papers (see Bowery Sav. Bank v 130 E. 72nd Realty Corp., 173 AD2d 364 [1991]; Oleg Barshay D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]), in effect, conceded that landlord had sent tenant an offer for a renewal lease and that tenant had signed the renewal offer and mailed it back to landlord. In these circumstances, the Civil Court properly determined that a renewal lease had been created, notwithstanding that landlord had not signed the renewal lease and delivered it back to tenant (Matter of E. 56th Plaza v New York Conciliation & Appeals Bd., 56 NY2d 544, 546 [1982]; Jacreg Realty Corp. v Barnes, 284 AD2d 280 [2001]). Landlord's claims that the renewal offer had been sent inadvertently and that landlord had revoked the offer prior to tenant's acceptance thereof were not supported by an affidavit made on personal knowledge and will not be considered.
Pesce, P.J., and Solomon, J., concur.
Weston, J., dissents in a separate memorandum.
Weston, J., dissents and votes to reverse the order, insofar as appealed from, and deny the branch of tenant's motion seeking to dismiss the petition, in the following memorandum:
As framed by the parties, the issue on this appeal is whether a renewal lease offer can be revoked by the service of a nonrenewal notice. Through her attorney's affirmation, tenant contends that an irrevocable renewal lease was created when she received a renewal offer from landlord, signed the renewal on December 27, 2011, and mailed it back to landlord on December 29, 2011. Conspicuously absent from tenant's submissions is any affidavit based upon personal knowledge. In similarly insufficient papers, landlord counters that the renewal lease offer was revoked by a nonrenewal notice that was served on December 29, 2011, prior to tenant's execution of the renewal offer. Without deciding whether a renewal offer can be revoked, the majority relies on landlord's submissions to conclude that a renewal lease was created. In doing so, the majority not only circumvents the issue raised by the parties, but completely overlooks the [*2]deficiencies in tenant's submissions.
As the moving party, tenant bears the initial burden of coming forward with admissible proof to justify a judgment in her favor (see Hatim Group, LLC v Johnson, 36 Misc 3d 147[A], 2012 NY Slip Op 51631[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Indeed, affidavits based upon personal knowledge, and other admissible proof, are essential to deciding a motion for judgment as a matter of law. Here, tenant's submissions are woefully inadequate to determine whether a renewal lease was created and not revoked. In moving to dismiss, tenant failed to submit an affidavit based upon personal knowledge—or any other admissible proof—to support her contention that she signed and sent the renewal offer prior to landlord's revocation (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2006]). Instead, tenant merely relied on the hearsay allegations set forth in her attorney's affirmation. In the absence of admissible evidence, tenant failed to sustain her burden of establishing her prima facie entitlement to judgment (id.). "As the burden never shifted to [landlord], [tenant's] motion should have been denied without regard to the sufficiency of [landlord's] opposition papers" (id. at 456). Since tenant clearly failed to meet her initial burden, I decline to look beyond tenant's papers, as the majority does, to conclude that a renewal lease was created (see Slikas v Cyclone Realty, LLC, 78 AD3d 144, 149-150 [2010]; Ramirez v Parache, 31 AD3d 415, 416 [2006]). Nothing in the parties' submissions is in admissible form to warrant a judgment as a matter of law.
Accordingly, I vote to reverse the order of the Civil Court, insofar as appealed from, and deny the branch of tenant's motion seeking to dismiss the petition.
Decision Date: March 05, 2014
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