175 Med. Vision Props., LLC v Adubor
Annotate this CaseDecided on November 19, 2021
Supreme Court, Westchester County
175 Medical Vision Properties, LLC, Plaintiff,
against
Christopher Adubor M.D., Defendant.
Index No. 57102/2020
Edward J. Mitchell, Esq. of Nobile, Magarian & DiSalvo, LLP for plaintiff
Sophia L. Trott, Esq. for defendant
William J. Giacomo, J.
In an action to recover damages for breach of contract, the plaintiff moves for summary judgment on all causes of action alleged in its complaint and dismissing the defendant's affirmative defenses, pursuant to CPLR 3212:
Papers Considered NYSCEF DOC NO. 13-21; 24-26
1. Notice of Motion/Affidavit of Spiros Althoulis/Affirmation of Edward J. Mitchell, Esq./Exhibits A-F
2. Affirmation of Sophia L. Trott, Esq./Affidavit of Christopher Adubor, M.D./ Exhibit A
3. Reply Affirmation of Edward J. Mitchell, Esq.
Factual and Procedural Background
Plaintiff is the owner of the property located at 175 Memorial Highway, New Rochelle, New York 10801 which has 32 commercial tenancies. On or about March 8, 2018, plaintiff and defendant entered into a written lease amendment, "Eighth Amendment to Lease", wherein defendant extended its lease of a medical office located in suite 1-4 of the property (the "premises")[FN1] . The lease amendment extended the lease term for a further period of either five or [*2]ten years [FN2] commencing on October 1, 2018. The annual rent pursuant to the lease was $30,070.00 payable in monthly installments of $2,505.83.
Plaintiff commenced this action for breach of the aforementioned lease agreement seeking unpaid rent, additional rent and other charges, costs, and fees including attorneys' fees and broker's fees. Plaintiff moves for judgment seeking nineteen months of unpaid rent, defendant's proportionate share of property tax increases pursuant to section 4.2 of the lease for 2018, 2019 and 2020, additional rent for refuse removal, water charges and parking permits pursuant to sections 5.3 and 6.3 of the lease, and a late charge of 2.5% arrears due for the prior month pursuant to the addendum to original lease agreement. The total amount sought is $68,397.84, along with legal expenses and reasonable attorneys' fees pursuant to sections 18.1 and 18.3, respectively, of the lease.
Plaintiff's motion also seeks to dismiss defendant's affirmative defenses. Defendant's first affirmative defense alleges plaintiff committed fraud by altering the lease agreement without defendant's approval or consent after the document was signed so the lease should be declared null and void. Defendant's second affirmative defense is that he suffered major financial losses due to COVID-19 and was forced to quarantine himself. Defendant's third affirmative defense is that he made good faith attempts to pay the rent arrears, but plaintiff rejected the offer. Defendant's fourth affirmative defense is that he was unable to perform under the terms of the contract due to the pandemic. Defendant's fifth affirmative defense is plaintiff failed to mitigate damages by seeking a new tenant for the premises.
In support of its motion, plaintiff submits the affidavit of Spiros Althoulis ("Althoulis"), general manager for the property. Althoulis avers that he attempted to find a replacement tenant when defendant abandoned the premises by hiring a real estate agent, but that office space during the pandemic was "extremely low." A new tenant was eventually found and took possession in March 2021. As a result, plaintiff is only seeking to recover unpaid rent and additional rent until the new tenant took possession.
In opposition, defendant does not contest that he signed the agreement to extend the lease. Defendant also does not contest the amount plaintiff claims defendant owes pursuant to the lease. He argues, however, that the entire lease should be voided as the lease term he agreed to was five years, and that it was extended to ten years, without his knowledge and consent. Defendant states that he notified the plaintiff's attorney in December, 2019 that his medical practice was not doing well and he needed to end his lease to which he was told to try to get another doctor to take over the space. Defendant avers that he was unable to find anyone to take over the space after extensive search. Defendant also claims that at the time of the COVID-19 pandemic in 2020, he was infected and unable to work for a few weeks, and as his medical practice was already doing poorly, he closed his practice, and turned the keys over to the landlord. Defendant claims that he was unable to comply with the terms of the lease agreement due to "Impossibility" as his medical practice was in a difficult financial situation and his patients were scared to come to the office for fear of becoming infected with COVID-19. Defendant states that he received $30,000.00 from the government and tried to work out a [*3]settlement with plaintiff, however, it was not accepted.
Discussion
The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v NY Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v NY Univ. Med. Ctr., 64 NY2d at 853).
"Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Zuckerman v City of New York, 49 NY2d at 562). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to defeat a prima facie showing of entitlement to summary judgment (see Zuckerman v New York, 49 NY2d at 562).
Plaintiff made a prima facie showing of entitlement to judgment as a matter of law to recover damages for breach of contract. The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach (Investment Retrievers, Inc. v Fox, 150 AD3d 1090, 1090 [2d Dept 2017]). The existence of the lease is not in dispute. It is also undisputed that defendant was in possession of the premises as of March 8, 2018, defendant failed to pay the rent and other charges due under the lease for nineteen months between March 2019 and February 2021, and that plaintiff suffered damages resulting from defendant's breach.
Defendant's position is that the lease is void due to the "fraudulent" change of the lease term. However, defendant provides no authority in law for his position. To state an affirmative defense sounding in fraud, a defendant must allege that (1) the plaintiff made a representation or a material omission of fact which was false and the plaintiff knew to be false, (2) the misrepresentation was made for the purpose of inducing the defendant to rely upon it, (3) there was justifiable reliance on the misrepresentation or material omission, and (4) injury (Shah v Mitra, 171 AD3d 971, 975 [2d Dept 2019]). Here, at the time the lease was signed, defendant admittedly agreed to the lease term of five years to September 30, 2023. In this action, plaintiff is seeking damages in unpaid rent and costs for nineteen months only through February 2021, which was prior to the end of the five year lease term to which it is undisputed that defendant agreed. Therefore, there is no injury to the defendant with regard to the term of the lease.
Defendant also argues that he was unable to comply with the terms of the lease extension due to impossibility. Generally, the excuse of impossibility of performance is limited to the destruction of the means of performance by an act of God, vis major, or by law (407 East 61st Garage, Inc. v. Savoy fifth Ave. Corp., 23 NY2d 275, 281 [1968]). Thus, where impossibility or difficulty of performance is occasioned only by financial difficulty or economic hardship, even to the extent of insolvency or bankruptcy, performance of a contract is not excused (id.). Defendant here states that he closed his medical practice due to financial difficulties that he experienced prior to and made worse by the pandemic. However, financial difficulty does not excuse performance of a contract (id.; see also A/R Retail Llc v. Hugo Boss Retail, 72 Misc 3d 627, 649 (New York County Supreme Court, May 19, 2021) ("A number of courts have rejected [*4]the impossibility defense as an excuse for tenants not performing contractual obligations, such as payment of rent, during the COVID-19 pandemic").
The parties' remaining contentions have been considered by the Court and are found to be without merit.
Accordingly, it is hereby
ORDERED that plaintiff's motion for summary judgment pursuant to CPLR 3212 is GRANTED in its entirety; and it is further
ORDERED that plaintiff is awarded judgment totaling $68,397.84, plus interest from March 1, 2021; and it is further
ORDERED that plaintiff is awarded legal expenses and reasonable attorneys' fees upon submission to this Court of an affirmation of legal services and detailed billing statements on notice to the defendant.
Dated: November 19, 2021
White Plains, New York
HON. WILLIAM J. GIACOMO, J.S.C. Footnotes
Footnote 1:It is uncontested that the "Eighth Amendment to Lease" extended the original Lease Agreement and the first seven amendments, the seventh of which assigned the lease to defendant.
Footnote 2:Plaintiff contends there was a discussion with defendant and an agreement to change the lease term from five to ten years and that the lease was thereafter changed to reflect the agreement. Defendant contends that he never agreed to extend the lease term from five to ten years.
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