PPC LLC v. AMERICAN BEAUTY SCHOOL ABC CORP (2026)

Recitation, as required by CPLR § 2219 (a), of the papers considered in review of this motion for summary judgment indicated below (Motion Seq. No. 1):

Sequence No. 1

NYSEF Doc. Nos.

Notice of Motion, Affirmations in Support, and Exhibits 10-22

Affirmation in Opposition 23

Affirmations in Reply 24, 25

Upon the foregoing cited papers and due deliberation, the motion of petitioner, PPC COMMERCIAL, LLC (hereinafter "petitioner"), seeking an order, pursuant to CPLR 3212 granting summary judgment against AMERICAN BEAUTY SCHOOL, INC. d/b/a/ AMERICAN BEAUTY SCHOOL (hereinafter "respondent-tenant") and ABC CORP (hereinafter "respondent-undertenant"); awarding petitioner a final judgment of possession of 1380 Metropolitan Avenue Unit D-5A, Bronx, New York 10462; a warrant of eviction issued forthwith; a money judgment in the amount of $5,541.52 plus fair use and occupancy of $16,974.00 a month commencing February 1, 2026 with interest and legal fees, or alternatively, use and occupancy commencing February 1, 2026 in an amount to be determined by the Court; and dismissing respondent-tenant's affirmative defenses and counterclaims; or in the alternative, an order directing respondent-tenant to pay monthly use and occupancy in the amount of $16,974.00, or alternatively in the amount of $8,487.00 pendent lite, is hereby granted in part for the reasons discussed infra.  ¹

Petitioner commenced this summary holdover proceeding seeking a judgment of possession as against respondent-tenant based upon respondent-tenant's alleged failure to vacate after the expiration of a lease agreement for the commercial property described as American Beauty School, ground floor premises commonly known as Unit D-5A, containing approximately 1,995 square feet in the Parkchester South Condominium and located in the building known as 1380 Metropolitan Avenue, Bronx, New York 10462 (hereinafter "the subject premises"); the issuance of a warrant to remove respondent-tenant from possession thereof; and a money judgment as against respondent-tenant for rental arrears in the amount of $5,751.16, use and occupancy at the monthly rate of $13,696.30 commencing February 1, 2026, together with interest, attorneys' fees, plus costs and disbursements. An affirmation of service was filed on or about March 13, 2026, stating that service of the notice of petition and petition was effectuated upon respondent on March 10, 2026 by delivering a copy to Azaris "Smith," the front desk clerk employed at the subject premises, and thereafter, on March 11, 2026 mailing a copy of the same to the subject premises and 11 Oval Drive, Islandia, New York 11749 via regular and certified mailing.

On March 25, 2026, both sides appeared by counsel before the court and the matter was adjourned on consent to allow respondent-tenant's newly retained counsel an opportunity to file an answer. On or about April 15, 2026, respondent-tenant filed an answer containing eight (8) affirmative defenses, to wit, lack of personal jurisdiction due to defective service; failure to state a cause of action; defective predicate notice; petitioner's breach of lease; petitioner's waiver of a claim for damages; petitioner's lack of standing; petitioner's absence of injury and/or failure to mitigate damages; and petitioner's negligence/breach of contract. Respondent-tenant's answer also states a counterclaim for legal fees and a counterclaim for "damages in an amount to be determined by the court." On April 21, 2026, both sides appeared by counsel before the Court, and the Court issued a Motion Briefing Scheduling Order therein adjourning the matter to allow petitioner time to file the instant motion for summary judgment.

On or about April 24, 2026, petitioner filed the instant motion for summary judgment, asserting therein that respondent-tenant is holding over past the lease expiration without paying rent; and that respondent-tenant's counterclaims and affirmative defenses are vague, conclusory, and meritless.

In support, petitioner attaches an affirmation of merit made by Alex Levine (hereafter "Mr. Levine"), a Senior Vice President for Olshan Properties, managing agent for petitioner PPC Commercial, LLC, affirming that he holds personal knowledge of the facts relating to this matter. Mr. Levine also affirms that many of respondent-tenant's affirmative defenses are baseless, to wit, lack of personal jurisdiction; failure to state a cause of action; defective predicate notice; failure to suffer injury or mitigate damages; and negligence/breach of contract. Specifically, Mr. Levine affirms that respondent-tenant's conclusory denial of service is insufficient to rebut the affirmation of service; that the instant proceeding is based on respondent-tenant's holdover which is clearly stated in the petition; that petitioner is not required to provide predicate notice or demonstrate damages or mitigation of damages; and that petitioner is not the cause of respondent-tenant's holdover. Mr. Levine also affirms that respondent-tenant's affirmative defenses of breach of lease, waiver of claims, and lack of standing are meritless because petitioner has standing as the landlord; there is no legal waiver of a landlord's right to possession following the expiration of a lease; and respondent-tenant's act of holding over is not a breach on petitioner's part. Regarding respondent-tenant's counterclaims, Mr. Levine affirms that petitioner will be the prevailing party in the instant action and thus respondent-tenant will not be able to recover legal fees; and that the court lacks jurisdiction to entertain respondent-tenant's counterclaim for damages.

With respect to respondent-tenant's alleged holdover, Mr. Levine affirms that respondent-tenant entered into a written lease agreement with petitioner's predecessor in interest, Parkchester Preservation Company, LP, on or about September 8, 2005; that the lease was modified once and amended four (4) times; that the term of the most recent lease amendment expired on January 31, 2026; and that respondent-tenant remains in possession of the subject premises in violation of the lease and lease amendments. Mr. Levine also affirms that respondent-tenant has not paid rent or use and occupancy since the expiration of the lease; that respondent-tenant owes $5,541.52 in rent arrears, as well as use and occupancy from February 1, 2026 in the amount of $16,974.00 per month; and that the amount of use and occupancy was determined in accordance with paragraph 11.6 of the lease, which calculates holdover use and occupancy as twice the monthly base and additional rent.²

In support, petitioner provides the lease, lease modification, lease amendments one (1) through four (4), and a rent ledger. The lease states that Parkchester Preservation Company, LP leases the subject premises to respondent-tenant for a term of sixty (60) months commencing upon delivery; and that it was executed by respondent-tenant and Parkchester Preservation Company, LP before a notary public on August 5, 2005 and September 8, 2005, respectively. The lease also contains a rent schedule with an initial monthly rent of $7,000.00 per month until the end of the twenty-fourth (24th) full calendar month of the lease term and defines additional rent as, to wit, a pro rata share of the landlord's insurance costs; an annual operating charge of $1,307.00; tenant's taxes; and utilities. Section 11.6 of the lease, entitled Holdover by Tenant, states that "if tenant shall not immediately surrender possession of the leased premises upon any termination of this lease, tenant, at the option of the landlord, shall thereafter become a tenant from month-to-month at a monthly rent equal to twice the sum of (i) the monthly minimum rent; and (ii) the average monthly amount of all other items of rent " Section 11.6 also states that respondent-tenant is to indemnify against any legal fees associated with respondent-tenant's holdover. Section 11.9 of the lease, entitled Security Deposit, states that the security deposit is valued at two (2) months' minimum rent at tenant's then current rate, and that any portion of the security deposit may be applied to the curing of any default.

The Second, Third, and Fourth Amendments of Lease each state that Parkchester Preservation Company, LP, is petitioner's predecessor in interest; that Parkchester Preservation Company, LP leased the subject premises to respondent-tenant pursuant to a written lease dated September 8, 2005; and that the September 8, 2005 lease is extended and amended in accordance with the terms set forth in the amendment. The Fourth Amendment of Lease, dated August 21, 2024 and executed by respondent-tenant and petitioner, states that petitioner leases the subject premises to respondent-tenant for an extended term retroactively commencing on March 1, 2024 and ending on January 31, 2026 for a monthly rent of $6,848.15 plus additional rent, to wit, insurance charges, operating charges, tenant's taxes, and tenant's share of consumable and utility charges. The attached rent ledger is dated April 24, 2026, lists respondent-tenant as the tenant, the Unit as D5A, and states, inter alia, that on January 13, 2026 respondent-tenant remitted two (2) payments, each in the amount of $8,487.00; and that respondent-tenant owes petitioner an outstanding balance of $5,541.52 in rent arrears. Petitioner also attaches the notice of petition, petition, affidavit of service thereof, and respondent-tenant's answer.

In opposition, respondent-tenant asserts that whether respondent-tenant is a month-to-month tenant is a material issue of fact; that their affirmative defenses are merit based; and that the balance of equities weigh in favor of respondent-tenant. In support, respondent-tenant attaches an affirmation of merit by Jacqueline N. Boone (hereafter "Ms. Boone"), the attorney representing respondent-tenant, affirming that respondent-tenant remitted rent payments to petitioner after February 2026; that said payments created a month-to-month tenancy which requires petitioner serve respondent-tenant with a notice of termination prior to the commencement of a summary proceeding; that because petitioner failed to provide respondent-tenant with predicate notice, the instant proceeding suffers an incurable defect for which summary judgment cannot be awarded; and that respondent-tenant's answer sets forth meritorious affirmative defenses based on petitioner's failure to serve a predicate notice. Ms. Boone also affirms that respondent-tenant has operated a respectable and enduring business at the subject premises for over twenty (20) years; that much of respondent-tenant's goodwill is tied to the location of the subject premises; that an abrupt eviction would disrupt and possibly destroy respondent-tenant's business and severely impact the lives and livelihoods of the twenty-one (21) employees, one hundred and twenty-six (126) enrolled students, and one hundred and fifty (150) clients serviced weekly at the subject premises; and that petitioner would suffer no prejudice by affording respondent-tenant reasonable time to relocate the business.

In reply, petitioner states, inter alia, that respondent-tenant failed to provide an affidavit of merit from an individual with personal knowledge of the facts of the matter, and that respondent-tenant's attorney affirmation is insufficient to adequately oppose petitioner's motion for summary judgment.

The party seeking summary judgment bears the burden of making a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence, in admissible form, to eliminate any material issues of fact in the action (see Winegrad v NY Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Failure to make such showing requires denial of the motion, irrespective of the sufficiency of the opposing papers (see Winegrad, 64 NY2d at 853). A motion for summary judgment should be supported by an affidavit, a copy of the pleadings and other available proof (CPLR 3212 [b]). "The affidavit should be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit" (CPLR 3212 [b]). A motion for summary judgment dismissing affirmative defenses is not held to the evidentiary burden of a motion to dismiss under CPLR 3211(b), but rather the higher evidentiary burden of a summary judgment motion (see Avamer 57 Fee LLC v Hunter Boot USA LLC, 241 AD3d 401, 405 [1st Dept 2025] [internal citations omitted]). Additionally, a grant of summary judgment for the dismissal of an affirmative defense is appropriate when nothing in the record substantiates the assertions made in the defenses (see Schumacher v Richards Shear Co., Inc., 59 NY2d 239, 245 [1983]).

Once a movant satisfies their prima facie showing, the burden shifts to the party opposing the motion (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "The party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure to do so, and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement" (Zuckerman, 49 NY2d at 560). Additionally, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to demonstrate the existence of a factual issue (see Zuckerman, 49 NY2d at 562).

Where a court grants a partial summary judgment "the court may also direct that the cause of action as to which summary judgment is granted shall be severed from any remaining cause of action; or that the entry of the summary judgment shall be held in abeyance pending the determination of any remaining cause of action." (CPRL 3212 [e]).

As a threshold matter, failure to strictly comply with the statutes governing summary proceedings deprives the court of jurisdiction and mandates dismissal (MSG Pomp Corp. v Doe, 185 AD2d 798, 799-800 [1st Dept 1992] [internal citations and quotations omitted]). Predicate notice is not required for summary holdover proceedings based on the natural expiration of a written lease, commonly known as "no-grounds" or "no-defense" holdover proceedings, but a predicate notice is required if the summary proceeding is based on the termination of a month-to-month tenancy (see Bogatz v Extra Touch Intern., Inc., 179 Misc 2d 1029, 1033 [Civ Ct 1999]; see also RPAPL 711). For a court to have jurisdiction over a no defense holdover proceeding petition must "state the interest of the petitioner in the premises from which removal is sought; state the respondent's interest in the premises and his relationship to petitioner with regard thereto; describe the premises from which removal is sought; state the facts upon which the special proceeding is based; [and] state the relief sought" (RPAPL 741[1], [2], [3], [4], [5]). "The relief may include a judgment for rent due, and for the fair value of use and occupancy of the premises if the notice of petition contains a notice that a demand for such a judgment has been made" (RPAPL 741[5]). Use and occupancy is not contractual but rather grounded in quantum meruit and is calculated as the fair market value of the premises after the expiration of the lease income (see Cooper v Schube, 101 AD2d 737 [1st Dept 1984]). Therefore, when determining the reasonable value of use and occupancy, the rent reserved under the lease is merely probative, not conclusive (Mushlam, Inc. v Nazor, 80 AD3d 471, 472 [1st Dept 2011] [internal citations and quotations omitted]). Moreover, "it is the landlord, not the tenant, who has the burden of proving reasonable value of use and occupancy" (Mushlam, Inc., 80 AD3d at 472 [internal citations and quotations omitted]). However, a commercial landlord has no duty to mitigate damages and need not prove such to recover rent arrears (see Holy Properties Ltd., L.P. v Kenneth Cole Productions, Inc., 87 NY2d 130 [1995]).

Failure to comply with statutory service requirements deprives the Court of personal jurisdiction and mandates a traverse hearing (see 10 E. End Ave. Owners, Inc. v Gordon, 23 Misc 3d 139(A) [App Term 2009]). Pursuant to RPAPL 735 service of the notice of petition and petition can be effectuated "by delivering to and leaving [a copy thereof] with a person of suitable age and discretion who resides or is employed at the property sought to be recovered" and, within one day, mailing additional copies via both certified and regular mail to the subject premises and any other address of the respondent for which the petitioner has written notice (RPAPL 735 [1]). Substitute service is deemed complete if the affirmation of service, notice of petition, and petition are filed with the court within three days of the mailing (RPAPL 735 [2]).

A summary proceeding may be brought by the landlord or lessor (RPAPL 721). In New York City, the landlord may, upon motion, request that the court direct respondent-tenant "deposit with the court sums of rent or use and occupancy," while the summary proceeding is pending, also known as use and occupancy pendente lite (RPAPL 745 [2]). The court may order use and occupancy pendente lite after the sooner of either "two adjournments, granted solely at the request of the respondent, or [sixty (60)] day[s] after the first appearance of the parties in court less any days that the proceeding has been adjourned upon the request of the petitioner." (RPAPL 745).

At the outset, petitioner demonstrated that respondent-tenant's affirmative defenses of lack of personal jurisdiction; failure to state a cause of action; and lack of standing are baseless. Specifically, the affidavit of service established a presumption of service that respondent-tenant's conclusory denial of service failed to rebut, giving the court personal jurisdiction over respondent-tenant; the notice of petition and petition state a clear claim of holdover in compliance with RPAPL 741; and the lease and lease amendment's show that petitioner has standing to bring the action as the landlord and lessor of the subject premises.

Similarly, respondent-tenant's affirmative defenses of defective predicate notice and failure to suffer injury in-fact or mitigate damages are meritless. This proceeding is based on a lease expiration, and it appears undisputed that the lease expired on January 31, 2026 and that respondent-tenant is holding over. Through an affirmation of an individual with personal knowledge, petitioner showed that rent has not been collected from respondent-tenant following the expiration of the lease and respondent-tenant provided nothing in admissible evidentiary form to contradict petitioner's assertion or show the creation of a month-to-month tenancy. Thus, petitioner is suffering injury and, moreover, is not required to provide a predicate notice to initiate the instant proceeding. Furthermore, as a matter of law, respondent-tenant cannot assert a mitigation of damages defense against a commercial landlord for rent owed pursuant to a lease.

With respect to respondent-tenant's remaining affirmative defenses of negligence/breach of contract; breach of lease; and waiver of claims as well as respondent-tenant's counterclaims of "damages" and attorney's fees such are not sufficiently pleaded and nothing in the papers points to any law or facts that support these defenses or counterclaims. Furthermore, respondent-tenant's attorney's affirmation and conclusory statements contained therein are not admissible evidence for demonstrating an issue of fact or curing any defects in respondent-tenant's pleadings. Consequently, respondent-tenant's eight (8) affirmative defenses and two (2) counterclaims are hereby dismissed.

With respect to petitioner's motion for summary judgment seeking possession and a warrant of eviction, petitioner sufficiently showed entitlement to possession of the subject premises by tendering the initial lease and lease amendments, which show that respondent-tenant's lease expired on January 31, 2026; and an affidavit from the property manager averring to respondent-tenant's holdover. Conversely, respondent-tenant's attorney's affirmation and conclusory statements therein are not admissible evidence for establishing the existence of a factual issue on whether respondent-tenant has a month-to-month tenancy.

Although, the Court finds that the attached lease; lease amendments; affirmation of merit; and rent ledger also show that petitioner is entitled to arrears and use and occupancy in an amount to be determined by the Court, an issue of fact remains on the amounts to be awarded. Specifically, the lease states that petitioner retained a minimum of two (2) months' rent in security throughout respondent-tenant's tenancy, and the rent ledger does not clearly reflect whether the security deposit has been properly applied to respondent-tenant's arrears. Thus, there remains an issue of fact as to the amount of arrears owed by respondent-tenant. Similarly, without proper application of the security deposit, there is an issue of fact surrounding the amount owed in use and occupancy. Although petitioner asserts that the terms of the lease calculate use and occupancy as double the combined base and additional rent totaling $16,974.00, use and occupancy is based on quantum meruit, and contractual terms do not dictate the award of use and occupancy.

Even assuming, arguendo, that the lease governs use and occupancy, petitioner cannot recover double rent because they misinterpret the agreement. In the event of a holdover, the lease grants the landlord the option to establish a month-to-month tenancy at a rate of double the agreed upon rent; it does not set the rate for reasonable use and occupancy.

Lastly, petitioners' request for use and occupancy pendent lite must be denied as premature as it has not been sixty (60) days since the first appearance of the parties, nor have two adjournments been granted at the request of respondent-tenant.

Accordingly, it is hereby,

ORDERED that the portion of the motion of petitioner, PCP COMMERCIAL, LLC, seeking summary judgment dismissing respondent's affirmative defenses and counterclaims is hereby granted; And it is further

ORDERED that the portion of the motion of petitioner, PCP COMMERCIAL, LLC, seeking summary judgment awarding petitioner a final judgment of possession of the subject premises described in the petition as American Beauty School, ground floor premises commonly known as Unit D-5A, containing approximately 1,995 square feet in the Parkchester South Condominium and located in the building known as 1380 Metropolitan Avenue, Bronx, New York 10462, against respondents, AMERICAN BEAUTY SCHOOL, INC. and "ABC CORP." is hereby granted; And it is further

ORDERED that a warrant of eviction is hereby issued forthwith; And it is further

ORDERED that execution of the warrant of eviction is stayed for a period of thirty (30) days from the date of the Decision and Order on the issue of damages; arrears; and fees; And it is further

ORDERED that the portion of the motion of petitioner, PCP COMMERCIAL, LLC, seeking a money judgment for rent arrears in the amount of $5,541.52 is hereby denied; And it is further

ORDERED that the portion of the motion of petitioner, PCP COMMERCIAL, LLC, seeking a money judgment for fair use and occupancy of $16,974.00 a month commencing February 1, 2026 with interest is hereby denied; And it is further

ORDERED that the portion of the motion of petitioner, PCP COMMERCIAL, LLC, seeking a money judgment for fair use and occupancy from February 1, 2026 in an amount to be determined by the Court with interest is hereby granted to the extent that petitioner demonstrates such fair amount at trial; And it is further

ORDERED that the portion of the motion of petitioner, PCP COMMERCIAL, LLC, seeking legal fees in an amount to be determined by the Court is hereby granted to the extent that petitioner demonstrates such reasonable fees at trial; And it is further

ORDERED that the portion of the motion of petitioner, PCP COMMERCIAL, LLC, seeking a judgment, in the alternative, directing respondents, AMERICAN BEAUTY SCHOOL, INC and "ABC CORP.," to pay monthly use and occupancy in the amount of $16,974.00 pendent lite, is hereby denied; And it is further

ORDERED that the portion of the motion of petitioner, PCP COMMERCIAL, LLC, seeking a judgment in the alternative, directing respondents, AMERICAN BEAUTY SCHOOL, INC and "ABC CORP.," to pay monthly use and occupancy in the amount of $8,487.00 pendent lite, is hereby denied; And it is further

ORDERED that the parties shall appear for trial on the issues of rent arrears; use and occupancy; and legal fees on July 23, 2026 at 2:15 p.m. in room 529A of Bronx Civil Court, 851 Grand Concourse Bronx, New York 10451; And it is further

ORDERED that the entry of the portion of the summary judgment granted in favor of petitioner shall be held in abeyance pending the determination of rent arrears and use and occupancy, pursuant to CPRL 3212 (e).

This constitutes the Decision and Order of this Court.

Dated: July 6, 2026

Hon. Dawn Guglielmo

Judge of the Civil Court

FOOTNOTES

1.   While petitioner's moving papers failed to set forth the appropriate statute, the Court notes that RPAPL 745 is the statutory authority for awarding use and occupancy pendent lite.

2.   The monthly base rent and additional rent were calculated as follows, base rent pursuant to the fourth amendment of lease in the amount of $6,848.15; real estate taxes in the amount of $1,176.63; common area maintenance charges in the amount of $215.64; and insurance in the amount of $246.58, for a total of $8,487.00 per month.

Dawn Guglielmo, J.