Lake Park 175 Froehlich Farm Blvd. LLC v Karen Schwartz, M.D., P.C.
Annotate this CaseDecided on December 21, 2011
District Court of Nassau County, First District
Lake Park 175 Froehlich Farm Boulevard LLC and CLK-HP 175 FROEHLICH FARM BOULEVARD LLC, Petitioner(s),
against
Karen Schwartz, M.D., P.C., XYZ CORP., Respondent(s).
LT-003885-11
Hamburger, Maxson, Yaffe, Knauer & McNally, LLP, Attorneys for Petitioner, 225 Broadhollow Road, Suite 301E, Melville, NY 11747, 631-694-2400; Law Office of Helayn Cohen, Esq. Attorney for Respondent, 193-03 39th Avenue, Flushing, NY 11358, 718-406-2030.
Scott Fairgrieve, J.
The following named papers numbered 1 to 4
submitted on this Motion
on October 25, 2011
papers numbered
Notice of Motion and Supporting Documents1Notice of Cross Motion and Supporting Documents2
Reply Papers to Motion & Opposition to Cross Motion3
Reply Papers to Cross Motion4
The respondent, Karen Schwartz, M.D., P.C., moves for an order pursuant to CPLR 3212 granting summary judgment, as the respondent alleges she is not in default of the lease agreement and does not owe any rent to the petitioners. The respondent also seeks an order directing the petitioners, pursuant to Article 27 of the lease agreement, to return respondent's security deposit in the amount of $8,070.84 plus interest running from March 9, 2010. The respondent further seeks attorney's fees, costs and disbursements. The petitioners submit opposition to the respondent's motion and cross move for an order pursuant to CPLR 3212 granting summary judgment to the petitioners. The respondent submits an affirmation in further support of respondent's motion for summary judgment and in opposition to the petitioners' cross motion for summary judgment. The petitioners in turn submitted a reply affirmation in further support of the current landlord's cross motion for summary judgment.
Summary judgment is drastic relief-it denies one party the opportunity to go to trial. [*2]Thus, summary judgment should only be granted where there are no triable issues of fact (see Andre v. Pomeroy, 35 NY2d 361 [1974]). The focus for the Court is on issue finding, not issue determining (see Hantz v. Fishman, 155 AD2d 415 [2d Dept 1989]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires denial of a motion, regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]). Once the movant has demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v. City of New York, 49 NY2d 557 [1980]).
The respondent, Karen Schwartz, M.D., P.C. (hereinafter referred to as Schwartz), supports her motion with an affidavit, sworn to by her. She indicates that on September 22, 2004, she entered into a lease agreement with Tilles Investment Company, LP to rent the premises located at 165 Froehlich Farm Boulevard, Woodbury, New York 11797. The lease term began on October 1, 2004 through September 30, 2014. Schwartz claims that pursuant to her lease she pays basic monthly rent and additional rent, which covers any increase in real estate taxes, school taxes and town taxes (see Lease §3.01). Article IV of the lease between the parties specifies the procedures and responsibilities for utilities and services for the premises. Section 4.01 of the lease outlines the procedures for setting up the electric, gas, telephone, data and office equipment for the premises. Upon commencement of the lease term, the gas and electric was already operational and Schwartz did not need to set them up. On March 17, 2005, the petitioners, Lake Park 175 Froehlich Farm Boulevard LLC and CLK Houlihan-Parnes 175 Froehlich Farm Boulevard LLC (hereinafter referred to as "CLK-HP"), purchased the premises and was granted all estate and rights of the Tilles Investment Company.
In August 2009 CLK-HP Froehlich Farm Boulevard, LLC told her, by a letter, that they had been absorbing the cost of her electric in contravention of the lease agreement. CLK-HP also indicated that it would be seeking back payment for the electric starting from July 26, 2006 through May 19, 2009.
Section 4.01of the lease agreement covering utilities, reads, in relevant part, as follows:
Throughout the term of this Lease, Tenant shall connect to the local utility company and pay all charges for or costs of electricity and gas for the Demised Premises. TENANT shall execute in its own name or account cards or applications and make all deposits required for the provision of electric and gas services to the Demised Premises. TENANT shall further be responsible for the installation and maintenance of its telephone, data and office equipment and lines.
Section 14.01 of the lease, reads in relevant part as follows: [*3]
The failure of LANDLORD to insist in any one or more cases upon the strict performance of any of the covenants of this Lease, or to exercise any option herein contained, shall not be construed as a waiver or relinquishment for the future of such covenant or option.
Schwartz alleges that her understanding of this portion of the lease allows the LLC to enforce any covenants of the lease, which had not been previously enforced. Thus, after receiving the letter from CLK-HP, Schwartz put the electric in her name. Schwartz did not pay the back billed electrical charges. CLK-HP thereafter applied Schwartz's security deposit of $8,070.84 to the allegedly outstanding amount owed of $33,134.09 for electric charges from July 26 through May 19, 2009.
Among her various arguments, Schwartz argues that her basic rent and additional rent are up to date and she should not be evicted. In addition, she argues that CKL-HP improperly seized her security deposit relying on Article 27 of the lease.
Section 27.02 of the lease agreement reads, in relevant part, as follows:
It is agreed that in the event TENANT defaults in respect of any of the terms, provisions and conditions of this Lease, including, but not limited to, the payment of rent and additional rent, LANDLORD may use, apply or retain the whole or any part of the security so deposited to the extent required for the payment of any rent and additional rent or any other sum as to which TENANT is in default or for any reason of TENANT'S default in respect of any of the terms, covenants and conditions of this Lease, including, but not limited to, any damages or deficiency of the reletting of the Demised Premises, whether such damages are deficiency occurred before or after summary proceedings or other reentry by LANDLORD.
Schwartz maintains that although Article 27 of the lease agreement allows the landlord to retain rent or additional rent from the security, if the tenant is in default of the lease, it is not applicable in the instant situation. Specifically, Schwartz maintains that CLK-HP have failed to prove that the electrical bill can be considered additional rent pursuant to section 3.02 of the lease (additional rent is specified as real estate taxes, school tax and town tax), nor a default of a lease covenant pursuant to Article 27.
This court finds that Schwartz has not met its prima facie burden.
CLK-HP submit opposition to the Schwartzs' motion and submits a cross motion for summary judgment. CLK-HP submit an affidavit of, Gerrie Di Maio, its accounts receivable manager for CLK- HP, the petitioners, in the instant non-payment proceeding. The parties are in agreement as to the general chain of events, however, they disagree as to the interpretation of the lease terms, thus the proceeding is ripe for summary judgment.
CLK-HP claims that Schwartz's reliance on section 14.01 of the lease is without merit as that clause relates to a landlord's right to insist on future performance of a tenant's obligations [*4]under the lease and does not involve back billing. Instead, CLK-HP refer this court to section 13.06 of the lease agreement which, it alleges allows CLK-HP to back bill a tenant, as additional rent, for payments made by the landlord in the performance of the tenants obligations under the lease. Section 13.06 of the lease agreement reads, in relevant part, as follows:
If TENANT shall default in the observance or performance of any term or covenant on TENANTS part to be observed or performed under or by virtue of any of the terms or provisions in this article of this Lease, LANDLORD may immediately or at any time thereafter and, without notice, perform the same for the account of TENANT, and if LANDLORD makes any expenditures or incurs any obligations for the payment of money in connection there with including, but not limited to, attorneys fees and instituting, prosecuting or defending any action or proceeding such sums paid or obligations incurred with interest and costs shall be deemed to be Additional Rent hereunder and the sum shall be due immediately upon LANDLORD incurring the same and may be included as an item of additional rent in any summary proceeding instituted by LANDLORD.
CLK-HP allege that from September 30, 2009 through January 12, 2010,CLK-HP back billed Schwartz's account for electric charges in the amount of $23,736.68, as additional rent, authorized pursuant to section 13.06 0f the lease agreement. Upon the Schwartz's failure to pay the back bills, CLK-HP then in March 2010, applied Schwartz's security of $8,070.84 to the unpaid charges, as authorized pursuant to section 27.02 of the lease agreement. On July 11, 2011 CLK-HP commenced the instant non-payment summary proceeding in light of th fact that Schwartz failed to make any payments. CLK-HP seek a judgment of possession and a warrant of eviction and a money judgment against Schwartz, in the amount of $33,695.86 for rent and additional rent due through August 26, 2011, plus interest and attorney's fees as additional rent.
CLK-HP have established its prima facie entitlement to judgment as a matter of law. Schwartzfails to raise a triable issue of fact.
Upon this court's analysis of the lease terms, this court finds that the terms are not ambiguous and that the electrical back billing charges were correctly applied to Schwartz's account as additional rent pursuant to section 13.06 of the lease. Furthermore, the court finds CLK-HP application of Schwartz's security deposit, pursuant to section 27.02 as partial payment of the back billed electrical charges, appropriate as well.
Accordingly, CLK-HP's cross motion for summary judgment is granted and Schwartz's motion for summary judgment is denied.
Attorney's fees are incidents of litigation and the prevailing party may not collect them from the losing party unless an award is authorized by agreement between the parties, by statute, or by court rule (see A.G. Ship Maintenance Corp. v. Lezak, 69 NY2d 1 [1986]; Hooper Associates, Ltd. v. AGS Computers, 74 NY2d 487 [1989]; Chapel v. Mitchell, 84 NY2d 345 [1994]). The lease agreement entered into between the parties does provide for the collection of [*5]attorney's fees (see section 13.06). When determining the reasonable value of services rendered by an attorney, the Court should consider the nature of the litigation, the difficulty of the case, the time spent, the amount of money involved, the results achieved and amounts customarily charged for similar services in the same locality (see Smith v. Bosov's Dept. Store, 192 AD2d 949 [3d Dept 1993]). CLK-HP's counsel seeks $12,532.40 in attorney's fees, representing 39.9 hours of work.
Let a judgment in the amount of $33,619.81 plus interest from September 30, 2009 plus reasonable legal fees in the amount of $6,000.00, plus a judgment of possession and warrant of eviction, stayed until January 31, 2012.
Submit Judgment.
So Ordered:
/s/ Hon. Scott Fairgrieve
DISTRICT COURT JUDGE
Dated:December 21, 2011
CC:Law Office of Helayn Cohen
Hamburger, Maxson, Yaffe, Knauer & McNally, LLP
SF/mp
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