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Civil Court, City of New York.

ALPHABET SOUP ASSOCIATES, LLC, Petitioner-Landlord v. KEN WU, Respondent-Tenant, AAA Cleaner at Avenue A; AAA Procleaners Inc, “ABC Corp” and “XYZ Corp”, Respondents-Undertenants.

L & T 64563/19

Decided: January 14, 2020

GRAUBARD MILLER, Attorneys for Petitioner, By: JOSEPH H. LESSEM, ESQ, 405 Lexington Avenue, New York, New York 10174-1901, 212.818.8798 LEON I. BEHAR, ESQ, Attorney for Respondent, 347 Fifth Avenue - Suite 1506, New York, New York 10016, 212.242.0500


Petitioner commenced this commercial summary holdover proceeding seeking to recover the Ground Floor Commercial Space at 214-16 Avenue A, New York, New York 10009 (Subject Premises), based on the allegation that respondent assigned the lease in violation of the terms of the lease and that respondent has failed to maintain insurance as required by the lease.

Petitioner issued a notice to cure dated May 20, 2019. A notice of termination was issued on June 14, 2019. The petition was filed on July 16, 2019. The notice of petition with proof of service was filed on July 31, 2019.

An initial court date was set for August 13, 2019. The proceeding was adjourned on consent to September 26, 2019. On September 26, 2019, respondents appeared by counsel and the proceeding was adjourned pursuant to the parties' stipulation to October 10, 2019.

On October 4, 2019, respondents filed an answer asserting fifteen affirmative defenses and two counterclaims. The defenses included failure to state a cause of action, improper service, defective pleadings, that the relief sought by petitioner is precluded by the terms of the parties' lease agreement, waiver, statute of limitations, and MDL § 302-a. The counterclaims seek a refund of rent payments made to petitioner and attorneys' fees.


On October 31, 2019, Petitioner moved for summary judgment and related relief.

On December 12, 2019, the parties entered a stipulation regarding the payment of use and occupancy.

On January 9, 2020, the motion was fully submitted and the court reserved decision. As set forth below, petitioner's motion is granted in part, but questions of fact remain which require a trial.


Pursuant to CPLR § 3212(b) a court shall grant summary judgment if the moving party submits evidence sufficiently demonstrating it is entitled to judgment as a matter of law. Once a prima facie showing has been made 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 (Alvarez v. Prospect Hospital 68 NY2d 320, 324).

The court declines to deny the motion simply because the pleadings were not annexed to the moving papers. “Although CPLR 3212(b) requires that a motion for summary judgment be supported by copies of the pleadings, the court has discretion to overlook the procedural defect of missing pleadings when the record is ‘sufficiently complete’ (Washington Realty Owners, LLC v. 260 Washington St., LLC, 105 AD3d 675, 675).” The Appellate Division, First Department has held that the record is sufficiently complete when the pleadings are attached to the reply papers, which petitioner has done herein ( Pandian v. New York Health & Hosps. Corp., 54 AD3d 590).

Petitioner fails to make out a prima facie entitlement to summary judgment in its moving papers as to the allegation of subletting or assignment. Petitioner in effect assumes an assignment or subletting as taken place solely by virtue of the fact that a corporate entity is listed on the certificate of insurance, and based on a single check submitted in April 2019. The facts raised by petitioner may, when borne out, establish subletting or not, it is not possible to tell from the moving papers. Petitioner does not even offer any first hand knowledge as to who is in actual possession of the subject premises, relying instead on a google search.

The court finds the moving papers are insufficient to award petitioner summary judgment on this point.

As to the allegation that the insurance maintained by respondent was insufficient to comply with the lease, respondent's defense of waiver raises questions of fact, including the intent of the parties that must be addressed at trial.

As held by the Appellate Division, First Department, acceptance of rent with knowledge of lease violations can waive any provision of a lease including a no waiver clause:

It is well established that “[w]hen rent is accepted with knowledge of particular conduct which is claimed to be a default, the acceptance of such rent constitutes a waiver by landlord of the default” (Atkin's Waste Materials v. May, 34 NY2d 422, 427 [1974], citing Woollard v. Schaffer Stores Co., 272 NY 304, 312 [1936] and Murray v. Harway, 56 NY 337 [1874]), unless landlord has promptly demanded correction of the disputed conduct, in which case waiver is a question of fact (see Jefpaul Garage, 61 NY2d at 448-449). Any provision of a contract is subject to waiver, particularly a provision requiring timely payment (Snide v. Larrow, 93 AD2d 959, 959 [1983] [“knowledgeable acceptance of late payments over an extended period of time ․ establishes the necessary elements to constitute a waiver of the right to insist upon timely payments” (citing Ford v. Waxman, 50 AD2d 585 [1975]) ], affd 62 NY2d 633 [1984]; see Calamari and Perillo, Contracts § 11.31, at 444 [4th ed] ). The principle is equally applicable to a lease (see East 4th St. Garage v. L.B. Mgt. Co., 172 AD2d 292, 292 [1991], citing 61 E. 72nd St. Corp. v. Zimberg, 161 AD2d 542 [1990]). The inclusion of a merger clause in an instrument is no bar to waiver because “a contractual provision against oral modification may itself be waived” (Rose v. Spa Realty Assoc., 42 NY2d 338, 343 [1977], supra). As here, a no-waiver clause is waived by the acceptance of rent

(TSS-Seedman's, Inc. v. Elota Realty Co., 72 NY2d 1024, 1027 [1988]; see also Lee v. Wright, 108 AD2d 678, 680 [1985] [“parties may waive a ‘no-waiver’ clause”] )

Madison Ave. Leasehold, LLC v. Madison Bentley Assocs. LLC, 30 AD3d 1, 6, aff'd, 8 NY3d 59 (2006).

However, partial summary judgment is granted to petitioner to the extent of dismissing some of respondents' defenses.

The third, fourth, fifth, sixth, seventh, and eighth affirmative defenses relating to service of the predicate notices and petition are dismissed.

As to third, seventh, and eighth defenses the answer states that service of the papers was improper without specificity, these defenses as plead are insufficient to raise the issue of personal jurisdiction or require a traverse hearing. Moreover, there is no requirement that the predicate notices be served in accordance with RPAPL § 735.

The fourth, fifth and sixth defenses assert that the affidavits of service are insufficient because only one attempt was made, and although they identify by name the individual to whom the papers were delivered and that said individual was a cashier, respondent argues the affidavit should “state or show Siu Ling's authority to accept service.”

The court finds that the affidavits of service are valid on their face and the RPAPL does not require more than one attempt at service, when papers are delivered to a person of suitable age and discretion that is employed at the Subject Premises. Notably, in his affidavit in opposition Mr. Wu neither denies that the individual served was employed at the Subject Premises nor disputes actual receipt of the papers.

The second affirmative defense which alleges lack of subject matter jurisdiction is also dismissed. The defense alleges the petition is defective, but does not state in what regard the petition is defective. This court clearly has subject matter jurisdiction over the underlying holdover proceeding. As held by the Appellate Term, First Department:

Once again we call the attention of the bar to the loose usage of the terms ‘jurisdictional defect’ or ‘jurisdictionally defective’ in summary proceedings.

Where, as here, the Civil Court has jurisdiction of the subject of the proceedings under Article 7 of the Real Property Actions and Proceedings Law and jurisdiction of the person of the respondent has been obtained as provided by law, the proceeding is not ‘jurisdictionally defective’ (Rosgro Realty Co. v. Braynen, A.T. 1, 70 Misc 2d 808, 334 N.Y.S.2d 962, aff'd sub nom. Grosfeld v. Braynen, 41 AD2d 605, 339 N.Y.S.2d 1000; Caton Park Associates v. Mahoney, A.T. 2nd, N.Y.L.J., 5/11/76, p. 8, col. 3). A petition in a summary proceeding is no different than a pleading in any other type of civil case. A petition which may fail to state facts sufficient to constitute a cause of action or contains other pleading infirmities is capable of correction by amendment.

Such a petition does not render the proceeding jurisdictionally defective. To the extent that our decision in Cal Cal Realty Corp. v. Taylor, 67 Misc 2d 903, 325 N.Y.S.2d 781, may be read to the contrary, it is no longer followed.

Jackson v. New York City Hous. Auth., 88 Misc 2d 121, 122, (App. Term 1976).

Respondent's fifteenth affirmative defense and first counterclaim based on MDL § 302-a are also dismissed. MDL § 302-a applies to rent impairing violations in multiple dwellings and is not a defense to this commercial holdover proceeding, moreover the statute specifically provides that voluntary payments made may not be recouped (MDL § 302-a (3)(d)).


Based on the foregoing, Petitioner's motion for summary judgment is only granted to the extent of dismissing respondents' second, third, fourth, fifth, sixth, seventh, eighth and fifteenth affirmative defenses and respondents' first counterclaim and is otherwise denied.

Trial is set for January 30, 2020 at 9:30 am.

This constitutes the decision and order of this Court.

Sabrina B. Kraus, J.

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Docket No: L & T 64563/19

Decided: January 14, 2020

Court: Civil Court, City of New York.

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