Ladle Parking Corp. v Parker 36 Garage Assoc.
Annotate this CaseDecided on August 9, 2004
Supreme Court, New York County
Ladle Parking Corp., Plaintiff,
against
Parker 36 Garage Assoc., Defendant.
116115/03
Saralee Evans, J.
Plaintiff Ladle is the former subtenant of a parking garage under the assignment of a sublease entered into between overtenant 225 East 36th Street Garage Corp., defendant's predecessor in interest, and plaintiff's predecessor in interest, undertenant 221 East 36th St. Parking Corp. (221 Parking). The term of the sublease ran from 1/1/91 to 12/31/2002 and paragraph 5 reflected that 221 Parking had paid $145,000 to the landlord as and for a security deposit. Another provision of the sublease modified the amount that was to be posted with the landlord as and for a security deposit by providing that at the later of the commencement of the lease term or on January 2, 1991, the overtenant was entitled to withdraw $100,000 from the money posted as security, reducing 221 Parking's deposit to $45,000, and that 221 Parking would thereafter be obliged to maintain no more than $45,000 to secure its obligations under the lease.
221 Parking later assigned this sublease to 225 East 36th St Parking Corp. (225 Parking). By the terms of the assignment agreement, the required security deposit was increased by three months rent ($56,250) pursuant to the assignment clause in the sublease. Upon 225 Parking's assumption of the sublease, the total security deposit required was $101,250. Five years later, 225 Parking was the subject of a Chapter 11 bankruptcy proceeding.
Plaintiff purchased the sublease in a bankruptcy sale. As part of the liquidation, the bankruptcy court authorized the landlord to pay itself $101,000 from the security deposit then on deposit as and for back rent owed by the debtor, and authorized a sale of the sublease to plaintiff, upon condition that plaintiff replenish the landlord's security deposit by paying $163,499 (this [*2]figure was comprised of the $101,000 previously held on deposit plus three months rent). Plaintiff paid the deposit upon buying the sublease and has acknowledged that that amount has been repaid.
Plaintiff has sued for an additional $44,000. Defendant moves for summary judgment dismissing the complaint and plaintiff objects that issues of fact are outstanding. Plaintiff can point to nothing however, to substantiate its claim that it is owed additional security. The sublease upon which plaintiff relies states clearly that the original subtenant maintained a deposit of $45,000, not $145,000.
On a motion for summary judgment, the party opposing the motion must lay bare its proof and demonstrate that "the matters set up in his answer are real and are capable of being established upon trial." Spearman v. Times Square Stores Corp., 96 AD2d 552, 553 (2d Dept. 1983); Zuckerman v. City of New York, 49 AD2d 557, 562 (1980). Bare, conclusory allegations are insufficient to defeat the motion. Hatzlachh Supply Co. v. Bank of America New York, 188 AD2d 298 (1st Dept. 1992). Plaintiff cannot rely on alleged oral representations made over six years that are contradicted by the documentary evidence.
Defendant's motion for attorney's fees is denied, there being insufficient evidence of the services rendered on this action and no provision for the payment of legal fees in the sublease that would apply to this proceeding.
For the foregoing reasons, defendant's motion is granted to the extent that it is
ORDERED that defendant's motion for summary judgment is granted and the complaint is dismissed, with costs and disbursements to defendant as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.
Dated:August 9, 2004
New York, NY
ENTER:
Saralee Evans, J.S.C.
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