81-01 37th Ave. LLC v New Covert Nail & Spa Inc.

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81-01 37th Ave. LLC v New Covert Nail & Spa Inc. 2021 NY Slip Op 33090(U) December 21, 2021 Supreme Court, Queens County Docket Number: Index No. 702978/21 Judge: Carmen R. Velasquez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] QUEENS COUNTY CLERK 12/23/2021 10:04 AM NYSCEF DOC. NO. 31 INDEX NO. 702978/2021 RECEIVED NYSCEF: 12/23/2021 SHO RT FOR SHORT FORM ORDER M ORD ER NEW YOR REME COU NEW YORKK SUP SUPREME COURT QUEENS COUNTY RT -- QU EENS COU NTY Pre sen t: HONORABLE HONORABLE CAR Present: CARMEN VELASQUEZ MEN R. R. VEL ASQUEZ Ju Justice sti ce ----------------------------------x, -----------------------------------x, 8101 37TH 81-01 37TH AVE AVENUE NUE LLC, LLC , Pl ain tif f, Plaintiff, IAS lAS PA PARTRT38 ~ Ind ex No. 702 Index 702978/21 978 /21 Mo Motion tio n Da te: August Au gus t 2, Date: 2, 2021 202 1 -ag ain st- . -against- M# 1 NEW ERT NA NEW COV COVERT NAIL & SPA SPA INC INC.. IL & FILED 12/23/2021 De fen dan t. Defendant. -----------------------------------x ------------------------------------x COUNTY CLERK QUEENS COUNTY The fol low ing pap ers num ber ed EF 7-2 following papers numbered 7-277 read this motion rea d on on thi by theThepla s mo tio n int iff (i) by the plaintiff (i) for for an an ord order granting summary judgment on er gra nti ng sum ma ry jud gm ent on its cau se of act ion ag ain st def end its cause of action against defendant for unpaid rent and unpaid ant for unp aid ren t and unp aid ele ctr ic cha rge s, (ii ) for electric charges, (ii) for an ord order service an er permitting pe rm itti ng ser vic e of am end ed com pla int and for of an jud gm ent for amended complaint and judgment for ad additional rent and dit ion al ren t and ut ili ty cha rge s bas ed upo utility charges based uponh the am amended complaint and (iii) for an end ed com pla int and ord (ii i) for an er dis mi ssi ng the aff irm ati ve def order dismissing the affirmative defenses other ens es and and oth er relief. rel ief . Pap ers Papers Nu mb ere d Numbered No tic e of Mo tio n - Af fid Notice of Motion - Affidavits Exhibits av its -- Ex hib its ... ... . . . EF 7-2 Af fir ma tio n in Op po sit ion 7-22 2 Affirmation in Opposition Exhibits -- Ex hib its . . . . . . . . . . . . .. EF 25-26 Re ply ing Af fir ma tio n . . . . 2526 Replying Affirmation ........................ . . EF EF 27 27 Upo n the for ego ing pap ers Upon the foregoing papers,, it is ord ordered thatt this ere d tha thi s motion the pla mo tio n by int iff (i) for an ord er the plaintiff (i) for an order gra granting summary judgment On its by nti ng sum ma ry jud gm ent On cau se of act ion ag ain st its end ant for cause of action against def defendant for unp unpaid and unpaid aid rent ren t and ele unp aid ctr ic cha rge s, (ii ) for electric charges, (ii) for an ord order of an er permitting pe rm itti ng service ser vic e of am end ed com pla int and for an jud gm ent for amended complaint and for judgment for ad additional rent and dit ion al ren t and ut ili ty ch arg ers bas ed upo utility chargers based uponn the am amended and other end ed complaint com pla int and rel oth er ief is ide d as fol relief is dec decided follows: low s: Pl ain tif f, the ow ner of Plaintiff, the owner of the the sub subject jec t commercial com me rci al premises, pre mi ses , en ter ed int o aa 10 -ye ar lea se wi entered into 10-year lease with prior tenant, Salon th its pri or ten an t, Nail Na il Sal and Fu lly Clo the d Ma ssa ged on ly, com and Fully Clothed Massaged On Only, commencing on Jul Julyy 1, 1, 2017 and me nci ng on end ing on Jun e 30, 202 7. 201 7 and Pu rsu ant to an ending on June 30, 2027. Pursuant dated June 17, an agreement agr eem ent dat 201 ed Jun e 17, 9, the lea se was ass ign ed to the 2019, the lease was assigned defendant, as tenant, herein. def end ant , as ten an t, he Pl ain tif f com me nce d the rei n. ins tan t act Plaintiff commenced the instant action alleging the ion all eg ing that tha t the 1 of 5 [*FILED: 2] QUEENS COUNTY CLERK 12/23/2021 10:04 AM NYSCEF DOC. NO. 31 INDEX NO. 702978/2021 RECEIVED NYSCEF: 12/23/2021 defendant ceased making making rental payments under the lease due and owing since October October 2020 through February 2021. 2021. The complaint also seeks unpaid electrical electrical charges from October October 2020 through December 2020. plaintiff states that since the 2020. In addition, addition, plaintiff filing and service of the the complaint, complaint, additional charges have accrued. to amend the complaint accrued. Plaintiff Plaintiff seeks to complaint to recover those inter alia, summary unpaid charges as as well. Plaintiff now seeks, seeks, inter alia, before and after the judgment for the unpaid unpaid amounts due both befbre filing of the complaint. filing'of Plaintiff seeks to amend the complaint to recover the unpaid unpaid charges that accrued subsequent subsequent to the filing of the complaint. Plaintiff also seeks to to dismiss the affirmative affirmative defenses defenses set forth in the Answer as as without without merit. merit. The branch branch of the motion for leave to motion for to amend the complaint is is granted. It is is well settled that applications applications for granted. It for leave to amend aa pleading under CPLR 3025(b) 3025(b) should be freely granted granted unless the proposed amendment unfairly prejudice prejudice or surprise the proposed amendment would unfairly party or is palpably insufficient patently devoid opposing party is palpably insufficient or patently devbid of merit. (Favia Co., Inc., 836, merit. (Favia v Harley-Davidson Harley-Davidson Motor Motor Co., Inc., 119 AD3d 836, 2014); Maldonado Maldonado v Newport Newport Gardens, Inc., 91 836 [2d [2d Dept 2014]; Gardens, Inc., 91 AD3d 731, Long Is. Is. R.R., R.R., 116 AD3d 676, 731, 731-732 [2d [2d Dept 2012); 2012]; Longo v Lbng 676, 677 2014) .) 677 [2d [2d Dept 2014].) Here, plaintiff plaintiff seeks to to amend the complaint to include the Here, the updated amounts that are allegedly due and owing. owing. Defendant will not be prejudiced prejudiced by the proposed proposed amendment, amendment, and defendant defendant has proposed amendment. not opposed the proposed The court will now address the branch branch of the motion motion for for summary judgment. The proponent proponent of aa summary judgment motion motion must make aa prima facie showing of entitlement entitlement to to judgment as as aa matter matter of law, facie law, ·, tendering sufficient sufficient evidence to to demonstrate demonstrate the absence of any fact. (Ayotte Gervasio, 81 NY2d 1062, 1062, 1063 material issues of fact. (Ayotte v Gervasio, 81 [1993].) [1993] .) Once aa prima facie showing has been made, the burden burden opposing the motion for for summary summary judgment to to shifts to the party party opposing produce evidentiary evidentiary proof in admissible form sufficient sufficient to to establish material issues, of fact fact which require aa trial of the establish material issues action. (Zuckerman v City City of New York, 49 49 NY2d 557, 557, 562 [1980).) [1980].) action. (Zuckerman of New York, is aa drastic remedy and should not be granted Summary judgment is is any doubt as as to to the existence of aa triable issue. issue. where there is (Peerless Ins. Co. v Allied'Bldg. Corp., 15 AD3d 373, 373, 374 374 (Peerless Ins. Co. AlliedBldg. Prods. Prods. Corp., 15 [2d Dept 2005).) 2005].) [2d 2 2 of 5 [*FILED: 3] QUEENS COUNTY CLERK 12/23/2021 10:04 AM NYSCEF DOC. NO. 31 INDEX NO. 702978/2021 RECEIVED NYSCEF: 12/23/2021 The court will first first address the argument and affirmative affirmative defense by the defendant this action is is barred barred by the defendant that this doctrine of impossibility. to the Defendant contends that due to unforeseeable pandemic, it it was impossible impossible for for it to unforeseeable COVID-19 COVID-19 pandemic, perform its rental obligations obligations under the terms of the lease. lease. perform Defendant explains explains that it it has experienced experienced unprecedented unprecedented difficulty in customers because of the pandemic pandemic and difficulty in in bringing bringing in social distancing distancing requirements. In impossibility of In order to utilize the defense of impossibility performance contract, a a party must show that the event . performance of aa contract, performance impossible was unforeseeable, the event event rendering performance destroyed destroyed the subject matter of the contract or the means of performance and it was the event that made the performance performance performance objectively (Kolodin v Valenti, 197, 200 objectively impossible. (Kolodin v Valenti, 115 AD3d 197, 2014].) [[pt pt Dept 2 0 14 l . ) Although the plaintiff plaintiff made a a prima facie showing of Although entitlement as a a matter of law, law, defendant defendant has raised entitlement to judgment as aa triable issue as to whether it it was able to perform perform its as to obligations under the lease terms. terms. The COVID-19 pandemic pandemic has caused aa major major economic economic impact on many businesses. The forced shutdowns and social distancing distancing requirements requirements have significantly significantly affected the ability ability of businesses businesses to to carryon carry on their activities and generate revenue. revenue. In her affidavit, affidavit, Hye J. J. Lee, Lee, the In defendant's President, avers that her business, a a nail salon, defendant's salon, was forced to close for for many months during the pandemic pandemic as as it it was a a non-essential She also avers that her company company has non-essential business. suffered "tremendouslyU ''tremendously" from the loss of income. income. She explains that his company experienced "unprecedented "unprecedented difficulty difficulty in in company has experienced U and is bringing customers" is "still struggling to get back to struggling to bringing customers normalcy.u normalcy." The branch of the motion motion to to dismiss the first first affirmative affirmative "No defense of failure to to state a a cause of action is granted. "No motion ... 32ll(b) to to strike this defense as motion ... lies under CPLR 3211(b) as this amounts to to an endeavor by the plaintiff plaintiff to test the this u sufficiency claim." (Jacob Marion, LLC LLC v v sufficiency of his or her own claim. (Jacob Marion, 168 AD3d 1043, 1043, 1044 1044 [2d [2d Dept 2019]; Catinella, 58 Jones, 168 2019]; Butler Butler vv Catinella, AD3d 145, 145, 150 [2d [2d Dept 2008] 2008].) Thus, affirmative defense is is .) Thus, this affirmative lacking in merit. branch of the motion motion to dismiss the second second affirmative affirmative The branch alleging failure to serve the summons and complaint complaint as defense alleging 3 3 of 5 [*FILED: 4] QUEENS COUNTY CLERK 12/23/2021 10:04 AM NYSCEF DOC. NO. 31 INDEX NO. 702978/2021 RECEIVED NYSCEF: 12/23/2021 { i is granted. granted. objection that the summons required by the CPLR is An objection and complaint was not properly properly served is is waived if, if, having raised such an objection Answer, defendant defendant does not move for objection in the Answer, 60 days after serving the judgment on that ground within 60 (Qing Dong v v Chen Mao Kao, Kao, 115 AD3d 839, pleading. (Qing Dong 839, 840 [2d [2d Dept 2014] .) The motion motion herein was not served within within 60 60 days as 2014].) required by the statute. In any event, event, defendant defendant fails fails to In address this affirmative affirmative defense in the opposing opposing papers. The branch motion to dismiss the third affirmative affirmative branch of the motion defense, requested is not the defense, which which alleges that the amount requested amount on the current lease, lease, is is denied. denied. Defendant avers that payments due were made in in November 2020 that were not credited. credited. Thus, the court cannot state, at this juncture, juncture, that this Thus, state, at affirmative merit. affirmative defense lacks merit. The branch of the motion motion to dismiss the fourth affirmative affirmative defense, plaintiff has failed to comply defense, which alleges that the plaintiff Administrative Orders for for cases affected by COVID-19, with Administrative specifically, AO/127/20, is is granted. granted. AO/127/20 AO/127/20 applies to eviction proceedings pursuant to to Article 7 7 of the Real Property proceedings pursuant Actions and Proceedings Proceedings Law. Law. is an action for breach of This is contract aa lease and is is not an eviction proceeding proceeding under RPAPL Article 7. 7. The branch affirmative branch of the motion to dismiss the fifth affirmative defense, performed defense, which alleges that the contract cannot be performed because of the doctrine doctrine of impossibility, is is denied denied as as set forth above. above. motion for for leave to amend the Accordingly, the branch of the motion granted, and the proposed complaint is granted, proposed amended complaint, inn the form annexed annexed to to the moving moving papers, papers, is is deemed timely and validly served. served. motion by plaintiff plaintiff for for summary judgment The branch branch of the motion is denied. is denied. 4 4 of 5 [*FILED: 5] QUEENS COUNTY CLERK 12/23/2021 10:04 AM NYSCEF DOC. NO. 31 INDEX NO. 702978/2021 RECEIVED NYSCEF: 12/23/2021 The branch the motion motion by dismiss the The branch of the by plaintiff plaintiff to dismiss affirmative defenses is granted granted to the extent extent that that the the first, affirmative defenses second and and fourth fourth affirmative affirmative defenses set forth forth in the the Answer Answer second defenses dismissed. are dismissed. The third third and and fifth fifth affirmative affirmative defenses shall shall remain. remain. The defenses //~ //~ .~---~---Dated: December December 21, 2021 2021 Dated: CARMEN R. R. VELASQUEZ, VELASQUEZ, J.S.C. CARMEN J.S.C. FILED 12/23/2021 COUNTY CLERK QUEENS COUNTY 5 5 of 5 "

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