Ogbolu v. 125 Prop. Masters Inc.

DECISION + ORDER ON MOTION In this commercial landlord-tenant action, plaintiff’s amended complaint (NYSCEF Doc No 5) alleges that he leased his real property, located at 335-337 Lenox Avenue, New York, NY 10027 (premises), to defendant 125 Property Masters (tenant), and that tenant’s obligations were guaranteed by the individual defendants (guarantors).¹ The lease, set for a fifteen-year term, commenced on May 1, 2015. Plaintiff alleges that tenant has violated various provisions of the lease by failing to (1) pay rent, additional rent, late charges, property taxes, utilities, and insurance premiums; and (2) obtain a certificate of occupancy for the premises, the requisite governmental permits and approvals for its alterations to the premises, liability insurance in the amount of $2 million per occurrence, and property insurance. He alleges that guarantors have also breached the lease by failing to pay consequential damages resulting from tenant’s default. Plaintiff further alleges that upon tenant’s breaches and default in payments, plaintiff properly terminated the lease by sending tenant a rent demand, a notice to cure, and notices of termination (MS #4, NYSCEF Doc Nos 153-156), but that tenant refuses to vacate the premises. Plaintiff now moves for summary judgment on his claims that tenant and guarantors breached the lease, and for the right to eject defendants and retake possession of the premises. He also seeks a money judgment in the amount of $4,323,384.95, plus interest, and a hearing to determine additional damages he may be owed (MS #4, NYSCEF Doc No 149). Discussion “It is well settled that ‘the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.’” (Pullman v. Silverman, 28 NY3d 1060, 1062 [2016], quoting Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). “Once such 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 raise material issues of fact which require a trial of the action.” (Cabrera v. Rodriguez, 72 AD3d 553, 553-554 [1st Dept 2010], citing Alvarez, 68 NY2d at 342). The evidence presented in a summary judgment motion must be examined “in the light most favorable to the non-moving party” (Schmidt v. One New York Plaza Co., 153 AD3d 427, 428 [2017], quoting Ortiz v. Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]) and bare allegations or conclusory assertions are insufficient to create genuine issues of fact (Rotuba Extruders v. Ceppos, 46 NY2d 223, 231 [1978]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (id.). Plaintiff has made a prima facie showing of his entitlement to judgment as a matter of law on both causes of action. Plaintiff submits the lease agreement, which clearly imposes the obligations at issue (NYSCEF Doc No 152, Lease