One Wythe LLC v. Elevations urban Landscape Design Inc.

RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION NOTICE OF MOTION & AFFIDAVIT OF SERVICE          1-2 AFFIRMATION/AFFIDAVIT IN SUPPORT & EXHIBITS ANNEXED 3-4 AFFIRMATION/AFFIDAVIT IN OPPOSITION TO MOTION             5 AFFIRMATION/AFFIDAVIT IN REPLY              6 DECISION AND ORDER MOTION TO DISMISS COSTS AND SANCTIONS INTRODUCTION   Respondent moves This Honorable Court by Notice of Motion to dismiss Summary Holdover Proceeding for failure to state a cause of action pursuant to CPLR 3211 (a) (7) and for Sanctions pursuant to NYCRR 130-1.1 and such other and further relief deemed just and proper. For the reasons set forth below, Summary Holdover Proceeding is DISMISSED and Hearing for Costs, Sanctions and Sua Sponte Contempt ORDERED. PROCEDURAL AND FACTUAL HISTORY Petitioner-Landlord by deed dated October 24, 2018 purchased subject property from predecessor in interest, Berry Wythe LLC, which entered into lease dated February 12, 2016 with Respondent-Tenant commencing from March 1, 2016 and ending February 28, 2021¹. Description in Premises section of lease, page 1 states: “2100 square foot building located within 9 Wythe Ave. a.k.a. 150 Banker Street, Brooklyn, N.Y. 11222 Block #2641 Lot 1.” Whereas, page 4, lease back, under section Premises leased states “11 Wythe Avenue, Brooklyn, NY 11211″, thereby, creating an internal conflict and inconsistency within the lease as to the actual leasehold premises. Lease Clause Eighteen, titled Notices states: “all notices and demands, legal or otherwise, incident to the [this] lease, or occupation of the demised premises, shall be in writing … via registered mail…or by leaving a copy thereof with a person of suitable age found on the premises, or to post a copy thereof upon the door of said premises.” Further, Sale Termination Clause², Lease Clause Fifteen states: “In the event of the sale by the Landlord of the demised premises, or the property of which said premises are a part, the Landlord or the purchaser may terminate this lease on the thirtieth day of April in any year upon giving the Tenant notice of such termination prior to the first day of January in the same year.” PREVIOUS SUMMARY HOLDOVER PROCEEDING [#1Notice] Of indispensable consideration in the deliberation of this instant matter, is the previous summary holdover proceeding brought by Petitioner, Civil Court of the City of New York, County of Kings, Commercial Landlord-Tenant Part 52, Index No. 65416/19 (hereinafter, No. 65416/19). Petitioner served #1Notice to Terminate on Respondent, the 120-day Notice of Intention to Terminate Lease dated December 17, 2018, which described leasehold premises as “150 Banker Street, Entire Premises Brooklyn, NY 11222 a/k/a 9 Wythe Avenue, Entire Premises Brooklyn, NY 11249″. Respondent states Notice was not received until January 14, 2019 since served to wrong leasehold premises address in contravention to Lease Clause 15³ to terminate lease on April 30, 2019 by virtue of being new owner as of October 24, 2018. Affidavit of Service sworn to December 26, 2018, indicates service of Notice to Quit effectuated by United States Postal Service certified mail (Lease Clause 18⁴ requires said notices to be sent by “registered mail”) on December 19, 2018. Thereafter, Petitioner filed No. 65416/19 by Notice of Petition and Petition for Holdover describing leasehold premises as “9 Wythe Avenue a/k/a 150 Banker Street, Entire Premises Brooklyn, NY 11222,” with Affidavit of Service sworn to May 8, 2019, effectuated by affixing to door of described leasehold premises and mailing to same on May 8, 2019. In lieu of filing an Answer, Respondent moved by Notice of Pre-Answer Motion to Dismiss pursuant to CPLR 3211 arguing: 9 Wythe Avenue as the leasehold premises description is incorrect as Respondent actually occupies 11 Wythe Avenue, therefore, all alleged notices and affidavit of services by Petitioner upon Respondent are invalid; Petitioner accepted rent after the April 30, 2019 alleged termination of lease date, to wit, May and June of 2019, which evidenced continuing landlord-tenant relationship and vitiates alleged termination of lease, or at the very least established a month to month tenancy pursuant to RPP §232-c; further, arguendo, even if Petitioner had provided accurate description of leasehold premises, to wit, 11 Wythe Avenue, to recover possession, Petitioner as a new owner had to strictly comply with Lease Clause 15.⁵ Petitioner failed to provide written opposition, however appeared for oral argument to which the court Dismissed Summary Holdover Proceeding issuing the following Decision/Order dated, July 15, 2019: “The instant proceeding is dismissed. Both parties agree that the address in the petition is incorrect, notwithstanding dismissal based on the above, it has been brought to the court’s attention that there exist[s] a provision in the lease that governs the commencement of an action/proceeding regarding the parties. As the court cannot make a determination on future event, the court is hereby putting the parties on notice that if another case is commenced, Article 15 of the lease instructs, directs, governs etc. how the parties must proceed. If not done in accordance with Article 15, the court may make a determination of frivolity.”⁶ INSTANT SUMMARY HOLDOVER PROCEEDING [#2Notice] Herein, Petitioner now makes second attempt at summary holdover proceeding, attempting to serve #2Notice to Terminate. Although two original attached Affidavit of Services both sworn to July 25, 2019 indicate 30 Day Notice to Quit was served upon Respondent personally by delivering to its principal on July 23, 2019 at “11 Wythe Avenue, Garage, Brooklyn, NY 11249″, the 30 Day Notice to Quit was not attached in the court’s filed Notice of Petition and Petition. The leasehold premises sought to be recovered in the Notice of Petition and Petition is described as “11 Wythe Avenue, Garage (Located at Corner of Wythe Ave. & N. 15th St., entrance at 65 N. 15th Street) Brooklyn, NY 11249″. Service was effectuated by delivering to a “John Doe” as agent for Respondent on October 7, 2019 and mailing on October 8, 2019 to Respondent at mailing residence, “11 WYTHE AVE GARAGE LOCATED AT CORNER OF WYTHE BKLYN NY 11249″, as indicated in Affidavit of Service sworn to October 8, 2019 and stamped by the court on October 9, 2019. In lieu of Answer, Respondent now moves by Notice of Pre-Answer Motion to Dismiss pursuant to CPLR 3211 (a) (7) and for the imposition of sanctions on Petitioner and/or Petitioner’s attorneys pursuant to NYCRR 130-1.1, stamped by court on December 13, 2019. Respondent argues: this instant matter is the second attempt to evict Respondent and is again a failed attempt at summary holdover proceedings as it fails to comply with terms of Lease Clause 15 as well as being in clear violation of Decision and Order of Court by failing to serve 120-day Notice of Termination before January 1, 2019 and rather brought this second instant summary holdover proceeding as a month to month holdover tenancy rather than pursuant to lease still in effect, therefore disobeying Court’s July 15, 2019 Decision and Order.⁷ Petitioner argues that as a matter of fact, there is no lease in effect, because of the internal conflicting description of premises contained within the lease. PROSPECTIVE SUMMARY HOLDOVER PROCEEDING [#3Notice] With the acquiescence of Petitioner, Respondent announced at oral argument held on January 17, 2020 and also stated in Respondent’s Reply Affirmation, Petitioner served #3Notice to Terminate, to wit, Notice of Termination dated December 27, 2019, “which purported to terminate Respondent’s rights under the Lease which they now argue does not actually exist.”⁸ DISCUSSION It is settled law that a CPLR 3211 dismissal “may be granted where documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Goldman v. Metro. Life Ins. Co., 5 NY3d 561, 571, 841 NE2d 742, 745-746, 807 NYS 2d 583, 586-587, 2005 NY LEXIS 3222, *8-9; Held v. Kaufman, 91 NY2d 425, 430-431, 694 NE2d 430, 671 NYS 2d 429 [1998]; Leon v. Martinez, 84 NY2d 83, 88). More so specifically, whereas here, the motion to dismiss is brought pursuant to CPLR 3211 (a) (7), the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference and determine whether the facts alleged fit within any cognizable legal theory” (Goldman v. Metro. Life Ins. Co., 5 NY3d 561, at 571; Arnav Indus., Inc. Retirement Trust v. Brown, Raysman, Millstein, Felder & Steiner, 96 N.Y.2d 300, 303, 751 NE2d 936, 727 NYS 2d 688 [2001]; Leon v. Martinez, 84 NY2d 83, 87-88, 638 NE2d 511, 614 NYS 2d 972 [1994]). Except, where, as here, movant/respondent establishes that a material fact proffered by plaintiff/petitioner “is not a fact at all” and that “no significant dispute exists regarding it” (Pechko v. Gendelman, 20 AD3d 404, 407, 799 NYS 2d 80, 82, 2005 NY App Div LEXIS 7559, *4-5; Yew Prospect v. Szulman, 305 AD2d 588, 589, 759 NYS 2d 357 [2003], quoting Guggenheimer v. Ginzburg, 43 NY2d 268, 275, 372 NE2d 17, 401 NYS2d 182 [1977]; see Sta-Brite Servs. v. Sutton, 17 AD3d 570, 794 NYS 2d 70 [2005]). This Court takes Judicial Notice of Court’s Decision and Order dated July 15, 2019, dismissing the #1Notice proceeding. The court stated that both parties agreed that address/ leasehold premises description is incorrect. Although Pursuant to RPAPL §741 (3), inaccurate description of leasehold premises sought to be recovered is and of itself a basis to dismiss summary holdover proceeding⁹, notwithstanding the lease’s internal conflicting descriptions¹⁰, this was not addressed by the court since it was uncontested that address/description was inaccurate (New York City Economic Dev. Corp. v. Kings Action Group, Corp., 2020 NY Misc LEXIS 565, 2020 NY Slip Op 50193 [U]). The two conflicting addresses/leasehold premises descriptions are “9 Wythe Avenue” and “11 Wythe Avenue.” In #1Notice proceeding, the address/leasehold premises description is “9 Wythe Avenue,” which was agreed by both parties as incorrect. Through logical process of elimination and by tacit agreement of both Petitioner and Respondent as indicated by the Court’s Decision and Order, the accurate address/leasehold premises description is “11 Wythe Avenue,” which is further bolstered by and consistent with Petitioner’s instant #2Notice proceeding, which bares same as accurate address/leasehold premises description. Court’s Decision and Order states that Petitioner shall comply with Lease Clause 15 under pain of finding of “frivolity.” Court’s ruling demanded that parties abide by Lease Clause 15, therefore as a matter of law ratified and upheld the validity and enforceability of the lease. In sum and substance, court found that for #1Notice proceeding Petitioner breached lease in its failure to comply with Lease Clause 15. Petitioner’s response to Court’s Decision and Order was most incredibly to ignore Court, self-proclaiming there is no lease. Petitioner cannot make its own self-serving declaration of an alternative fact out of thin air, particularly in obviously direct contravention of a judicial decision and order. It is illogically befuddling that Petitioner now makes this statement of fact that is indeed not a fact at all. On the contrary, Court’s Decision and Order as a matter of law established the validity and enforceability of the lease by its enforcing of Lease Clause 15. Consequently, Petitioner is collaterally estopped from attempting to make ab initio failed argument that the lease is invalidated because of the internal conflict between 9 Wythe and 11 Wythe, thereby on its own volition wholly invalidating the lease and invalidating the Court’s Decision and Order. Not so. The lease is valid as a matter of law as per Court Decision and Order for #1Notice. Petitioner’s argument as to reformation of lease is not relevant here. More so troubling, Petitioner thereafter files #3Notice proceeding based upon the same lease as being valid and enforceable, in direct opposition to their stating that the lease does not exist in the instant #2Notice proceeding. The contravening Petitioner’s Affirmations and Affidavits between conflicting #2Notice and #3Notice are admissions against its own interest. Petitioner cannot credibly argue one material issue of fact in the alternative and request the court to accept both to comport to their legal argument being offered for consideration. Either they are or they are not. Alternative facts¹¹ may be acceptable in the current political realm but not at all acceptable by affiant under oath in writing or as witness on the stand before the judiciary. Rather, “[f]acts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.”¹² Indeed, parties may offer alternative legal arguments but those arguments must be made with consistent proffered facts by that party. Certainly, opposing party may argue contravening facts but their proffered facts must also be consistent. However, same party presenting alternative facts is tantamount to that party arguing against itself at its best or a decided calculated attempt to prevaricate mislead or deceive the judiciary, which would indeed be frivolous and may be sanctionable. More so straining the limits of credulity, during the pendency of this instant #2Notice, Petitioner offers its alternative fact to comport to its other legal argument in #3Notice, where it states the material fact that the lease is indeed valid and in full force and effect proceeds for summary holdover proceedings pursuant to Lease Clause 15. This court opines that Petitioner would have been better served and would have promoted judicial efficiency and judicial economy by withdrawing the instant #2Notice which flagrantly disobeys #1Notice Court’s Decision and Order, July 15, 2019. Not having done so and moving forward with #3Notice during the pendency of this instant improper #2Notice proceeding, is clearly burdensome litigation which unnecessarily taxes the already overtaxed New York State Judiciary. It is for this reason, “to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics,” by a party in civil litigation which authorizes courts to impose financial sanctions for “frivolous conduct” pursuant to 22 NYCRR 130-1.1 (Kernisan v. Taylor, 171 AD2d 869, 870, 567 NYS 2d 794, 795-796, 1991 NY App Div LEXIS 3834, *3; cf., Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of N.Y. v. 198 Broadway, 76 NY2d 411; see, Steiner v. Bonhamer, 146 Misc 2d 10). 22 NYCRR 130-1.1 (a) states: “The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct” Whereas, pursuant to 22 NYCRR 130-1.1 (c) conduct is frivolous if: “1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false.” Each Petition filed for summary holdover proceeding, #1Notice, #2Notice, and #3Notice proceedings are all verified and signed by Petitioner’s attorney. It is the duty of attorney to ensure that legal papers filed and affirmed to in court have been vetted for veracity of facts proffered and comply with current state of laws argued. Therefore, whether attorney exercised the standards of a reasonable attorney forms the basis of the court’s inquiry in determination of frivolous conduct that authorizes the court’s imposition of costs and sanctions (DeRosa v. Chase Manhattan Mortg. Corp., 15 AD3d 249, 793 NYS 2d 1, 2005 NY App Div LEXIS 1982). Pursuant to 22 NYCRR 130-1.1 (d), “an award of costs or the imposition of sanctions may be made only after a reasonable opportunity to be heard” (Matter of Fernandez v. Nigro, 178 AD3d 703, 705, 2019 NY App Div LEXIS 8736, *4-5, 2019 NY Slip Op 08672, 2, 113 NYS 3d 753). Although 22 NYCRR 130-1.1 is punitive for frivolous conduct, it is not a substitute for the court’s power to punish for contempt of court’s orders (Stow v. Stow, 262 AD2d 550, 550-551, 694 NYS 2d 68, 69-70, 1999 NY App Div LEXIS 6954, *2-4; see Casey v. Chemical Bank, 245 AD2d 258; see also Matter of Kernisan v. Taylor, 171 AD2d 869). Contempt punishment is a rather drastic punitive enforcement tool statutorily bestowed upon courts in both criminal and civil jurisdictions from the very creation of the judicial system from the King’s Bench.¹³ Consistent with court’s inherent powers to punish parties for failure to adhere and comply to court’s mandates, to wit, Court’s Decisions and Orders, and to preserve the court’s authority over the conduct of private parties as in civil matters, or society at large, to wit, The People, as in criminal matters. To do so, there must be some teeth, some stick to the court’s enforcement powers (Home Heating Oil Corp. v. Parris, 2019 NY Misc LEXIS 5738, 2019 NY Slip Op 51663 [U], 65 Misc 3d 1216 [A], 2019 WL 5406813). Contempt punishment is that enforcement tool statutorily provided to the courts with the teeth and the stick to assert its power to demand that its mandates be carried out by the contemnor. Contempt punishment, however, is not so readily granted without the utmost of fastidious due diligence and due deliberation by the courts, particularly in the context of civil matters. Contempt punishment is a crime in and of itself and therefore may be punished within the penal system just as any other crime, which carries with it the imposition of a sentence of incarceration to the contemnor. It is for that reason, that courts are reluctant to impose contempt punishment sentencing, whether by fine or more so drastic by a period of incarceration, particularly in civil matters. Nevertheless, such sentencing for contempt punishment carries the weight and gravitas that is sometimes required upon recalcitrant contemnors (Manswell v. Baptiste, 2019 NY Misc LEXIS 6200, 2019 NY Slip Op 29360, 113 NYS 3d 519, 2019 WL 6315273). Contemnors that intentionally flout civil court judicial mandates, as is obviously the Court’s Decision and Order for #1Notice dated July 15, 2019, must be punished by the court in its power to regulate conduct within the judicial system. Otherwise, we would foster an anarchic society where courts would be devoid of authority to regulate behavior and conduct of persons. The judiciary branch of government is tasked with the enforcement of the legislative’s branch duly circumscribed codified laws of behavior and conduct of its people. Therefore, after a court provides some level of latitude to the contemnor, there comes a watershed moment when the civil court, no matter how reluctantly it may find itself, must indeed exercise its punishment enforcement powers of contempt with all its full encompassing ramifications and consequences thereto. It is only disobedience of that explicit written command shall be the subject to the very drastic punishment for contempt of court (see Application of Mullen, 31 NYS 2d 710, 177 Misc 734, 1941 NY Misc LEXIS 2442). Judiciary Law §753A-A.5 likewise bestows upon a court of record the power to punish, “by fine and imprisonment, either a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action…may be defeated, impaired, impeded, or prejudiced, … in [the case of]…a person subpoenaed as a witness, for refusing or neglecting to obey the subpoena, or to attend, or to be sworn, or to answer as a witness.” It is well established in the Second Department that the “mere act of disobedience is sufficient to sustain a finding of civil contempt where…the record reveals that such disobedience was calculated to or actually did defeat, impair, impede, or prejudice the plaintiff’s rights” (Kaywood v. Cigpak, Inc., 258 AD2d 623, 685 NYS 2d 770, 1999 NY Slip Op 01623 [2d Dept 1999], citing Yeshiva Tifferes Torah v. Kesher International Trading Corp, 246 AD2d 538, 667 NYS 2d 759 [2d Dept 1998]; see also Oppenheimer v. Oscar Shoes, 111 AD2d 28, 488 NYS 2d 693 [1st Dept 1985]; see also McNulty v. McNulty, 81 AD2d 581, 437 NYS 2d 438 [2d Dept 1981]). A hearing may be ordered by the court to determine whether the “rights or remedies of a party to civil action may be defeated, impaired, impeded or prejudiced by any disobedience to lawful mandate of court” (Great Neck Pennysaver v. Central Nassau Pubs., 65 AD2d 616, 409 NYS 2d 544 [2d Dept 1978]). Therefore, court should not decide on motion for contempt punishment without a hearing. For the foregoing reasons, Respondent’s Pre-Answer Motion to Dismiss is GRANTED; Respondent’s Motion for Costs and Sanctions; and Court’s Sua Sponte Motion for Contempt will be Decided by Hearing on February 28, 2020 at 2:30 PM, in Courtroom 1302 accordingly ORDERED. This constitutes the opinion, decision, and order of This Honorable Court. SO ORDERED: Dated: February 13, 2020