LP v. E. Gonzalez; L. Gonzalez, Defendant(s). (2022)

I. Papers

The following papers were read on Plaintiff's motion for summary judgment and Defendant E. Gonzalez's motion to amend:

Papers Numbered

Plaintiff's Notice of Motion and Affirmation in Support dated January 2, 2020 ("Motion") and stamped filed with the court on January 7, 2020. 1

Defendant E. Gonzalez's Cross-Motion and Affidavit in Opposition dated October 12, 2021 ("Cross-Motion"). 2

Defendant's Reply Affirmation dated October 18, 2021 ("Reply") and electronically filed with the court on the same date. 3

II. Background

In a summons and complaint filed October 25, 2019, Plaintiff sued Defendants to recover $16,711.10 in unpaid rent and additional rent plus attorneys' fees and interest from March 1, 2017 (see Motion, Aff. of I. R. Sitzer, Ex. A). Plaintiff alleged breach of contract in its first cause of action, account stated in its second cause of action, and attorneys' fees in its third cause of action (see id.). Plaintiff moved for summary judgment on its breach of contract and attorneys' fees claims against Defendants (CPLR 3212[b]). In a Stipulation of Settlement dated January 7, 2020 and a Stipulation of Discontinuance dated January 30, 2020, Plaintiff settled the action with Defendant L. Gonzalez and discontinued the action as against him (see Reply, Sitzer Aff., Ex. A and B). Defendant E. Gonzalez ("Defendant") opposed Plaintiff's motion and cross-moved to amend her answer (CPLR 3025[b]). Plaintiff opposed the Cross-Motion.

III. Discussion and Decision

A. Plaintiff's Motion For Summary Judgment

CPLR 3212 provides that "a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions" (CPLR 3212[b]). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). "A [party] moving for summary judgment has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit" (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

As an initial matter, since Plaintiff discontinued the action as against defendant L. Gonzalez, the Court denies Plaintiff's motion for summary judgment as against defendant L. Gonzalez as academic. Plaintiff contended that it was entitled to summary judgment because its evidence demonstrated breach of a lease by Defendant E. Gonzalez, and that she only made general denials in her answer to Plaintiff's complaint. To support the Motion, Plaintiff relied on a copy of the lease dated April 15, 2011, which listed only L. Gonzalez as a tenant and appeared to be signed only by L. Gonzalez, not Defendant E. Gonzalez (see Motion, Sitzer Aff., Ex. C at 1, 5). Defendant E. Gonzalez appeared to be a party on a Renewal Lease Form ("Renewal Lease") dated January 20, 2016 (see id. at 7-8). While Plaintiff presented an affidavit sworn December 16, 2019, in which L. Furbeck, Plaintiff's Executive Director of Billing, merely attested that "a copy of the lease/renewal(s)" were annexed to the motion as Exhibit C (Aff. of Lisa Furbeck at 1). However, Furbeck failed to authenticate the lease because she did not attest that she observed Defendant signing the Renewal Lease (Andreyeva v Haym Solomon Home for the Aged, LLC, 190 AD3d 801, 802 [2d Dept 2021]; Hefter v Elderserve Health, Inc., 134 AD3d 673, 675 [2d Dept 2015]), that she otherwise had personal knowledge of its execution (Antoine v Kalandrishvili, 150 AD3d 941, 942 [2d Dept 2017]; Burrell v Barreiro, 83 AD3d 984, 985 [2d Dept 2011]), or that she was familiar with Defendant's signature (A.F. Supply Corp. v Perfect Lock & Sec., Inc., 143 AD3d 747, 748 [2d Dept 2016]; Tuscan Realty Corp. v O'Neill, 189 Misc 2d 349, 350 [App Term 2d Dept 2001]).

While Plaintiff also relied upon an itemized list of rent charges to establish the amount Defendant owed, Furbeck failed to lay a business record foundation for the list. The requirements of a business record foundation are:

[F]irst, the record must be made in the regular course of business — reflecting a routine, regularly conducted business activity, needed and relied on in the performance of the functions of the business. Second, it must be the regular course of business to make the record — in other words, the record was made pursuant to established procedures for the routine, habitual, systematic making of such a record. Finally, the record must have been made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, assuring that the recollection is fairly accurate and the entries routinely made.

(People v Crastley, 86 NY2d 81, 89 [1995], see People v Kennedy, 68 NY2d 569, 579-80 [1986]). In addition, it must be shown that "the informant has personal knowledge of the act, event or condition and he [or she] is under a business duty to report it to the entrant" (People v Patterson, 28 NY3d 544, 550 [2016]; Matter of Leon RR, 48 NY2d 117, 123 [1979]). Here, Furbeck only attested that "the records of charges and credits . . . [were] kept in Plaintiff's ordinary course of business" (Furbeck Aff. ¶2). Since Furbeck failed to establish a business record foundation for the itemized list of rent charges, it was inadmissible (People v Kennedy, 68 NY2d at 580; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 908; Education Resources Inst., Inc. v Piazza, 17 AD3d 513, 515 [2d Dept 2005]). Thus Plaintiff failed to sustain its burden of demonstrating its entitlement to judgment against Defendant E. Gonzalez for breaching the Renewal Lease or attorneys' fees under the Renewal Lease (see Andreyeva v Haym Solomon Home for the Aged, LLC, 190 AD3d at 802; A.F. Supply Corp. v Perfect Lock & Sec., Inc., 143 AD3d at 749).

Even if Plaintiff presented admissible evidence of the lease it sought to enforce against Defendant E. Gonzalez and the list of rent charges, Defendant E. Gonzalez did not make only a general denial in her answer to the complaint, as Plaintiff contended. Rather, in her answer dated November 25, 2019, Defendant E. Gonzalez alleged that "[p]lease take notice that my only source of income is State FHEPS_, which [was] exempt from collection" (Motion, Sitzer Aff. Ex. B). Plaintiff did not address this allegation in its motion papers.

B. Defendant's Cross-Motion To Amend

Defendant E. Gonzalez sought to amend her answer to Plaintiff's complaint.

A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.

(CPLR 3025[b]). Absent surprise or prejudice from the delay in seeking amendment, motions to amend are freely granted unless the proposed amended pleading is insufficient or patently meritless (HPHD Invs. Group, LLC v Ioannou, 188 AD3d 1168, 1170 [2d Dept 2020]; Redd v Village of Freeport, 150 AD3d 780, 781 [2d Dept 2017]). Here, Defendant E. Gonzalez explained in her supporting affidavit that she filed her answer to Plaintiff's complaint prior to consulting with an attorney and that after such consultation, she sought to challenge service of the summons and complaint upon her and assert affirmative defenses disputing the amount owed, Plaintiff's failure to mitigate damages by re-letting the apartment, and laches.

Here, Plaintiff correctly contended that Defendant E. Gonzalez's defense of laches lacked merit. Laches is an equitable bar applicable when a lengthy delay in asserting a right results in prejudice to an opposing party (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 816 [2003]). Laches does not apply to an action at law which was timely commenced, as here (Premier Capital, LLC v Best Traders, Inc., 88 AD3d 677, 678 [2d Dept 2011]; Matter of County of Orange (Al Turi Landfill, Inc.), 75 AD3d 224, 237-38 [2d Dept 2010]; Matter of American Druggists' Ins. Co., 15 AD3d 268, 268 [2d Dept 2005]). Since the other amendments to the answer were not insufficient or meritless, the Court grants Defendant E. Gonzalez's Cross-Motion to amend the answer to include them (see HPHD Invs. Group, LLC v Ioannou, 188 AD3d at 1170; Redd v Village of Freeport, 150 AD3d at 781, but denies the Cross-Motion as to the defense of laches.

IV. Order

Accordingly, it is

ORDERED that Plaintiff's Motion for summary judgment on its claims for breach of contract and attorneys' fees against Defendant E. Gonzalez is denied without prejudice; and it is further

ORDERED that Defendant E. Gonzalez's Cross-Motion to amend the answer is denied as to the defense of laches, but is otherwise granted; and it is further

ORDERED that the defense of laches shall be stricken from Defendant E. Gonzalez's proposed amended answer; and it is further

ORDERED that the amended answer in the proposed form annexed to the moving papers shall be deemed served upon filing proof of service of a copy of this order with notice of entry.

This constitutes the Decision and Order of the court.

Dated: January 6, 2022

Queens County Civil Court

Honorable Wendy Changyong Li, J.C.C.

Wendy Changyong Li, J.