[*1]Decided on February 22, 2011

57 Kingsland Realty Corp., Petitioner, against 57 Kingsland Food Corp. Respondent

104841/10



The petitioner was represented by

Edward R. Dorney, Esq. of Connors & Sullivan, PLLC

7408 Fifth Avenue, Suite 2, Brooklyn, NY.

The respondent was represented by

Barry J. Yellen, Esq.

261 Madison Avenue, 26th flr., NYC.

Genine D. Edwards, J.

In this commercial nonpayment proceeding, petitioner seeks the sum of $8,351.22 as well as interest from October 2010. Respondent moves for summary judgment, and to dismiss the petition. Petitioner cross-moves for summary judgment, and to dismiss respondent's counterclaims for attorney's fees and punitive damages.

On August 19, 2009, petitioner entered into a lease with 57 Supermarket Corp. On November 4, 2009, the lease was assigned to respondent. On or about November 19, 2010, petitioner served upon respondent a Three (3) Day Notice of Default for failure to pay real estate taxes pursuant to paragraph 41 of the rider to the lease. Paragraph 41 states:

41. TAXES.(A)The Tenant agrees to pay to the Owner as additional rent an amount equal to 100% of the taxes assessed and billed by the City of New York to the Owner over the base year 2009-2010 with respect to the Block and Lot containing the leased premises.

[*2]See Notice of Motion, Exhibit D, ¶ 41; Notice of Cross-Motion, Exhibit 1, ¶ 41. Petitioner contends

that respondent owes 100% of the real estate taxes. Respondent acknowledges that it owes taxes, but

contends that it owes only those taxes over the base year of 2009/2010. Respondent's Motion

At the outset, the motion to dismiss is denied. The petition was properly notarized pursuant to Real Property Actions and Proceedings Law. In addition, respondent failed to show how the petition was defective because the notice of petition indicated that the petition was verified on November 29, 2010, when in fact it was verified on November 30, 2010. See Bldg. Management Co. Inc. v. Bonifacio, 25 Misc 3d 1233(A), 906 N.Y.S.2d 770 (Civ. Ct. New York County 2009) ("Respondent has not shown how the incorrect date materially misrepresented the facts or prevented [it] from framing a defense".)

Turning to that part of respondent's motion that seeks summary judgment, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hosp., 68 NY2d 320, 508 N.Y.S.2d 923 (1986); St. Claire v. Empire Gen. Contr. & Painting Corp., 33 AD3d 611, 821 N.Y.S.2d 471 (2d Dept. 2006). "If the moving party fails to make such a showing, the motion must be denied, irrespective of the sufficiency of the opposing papers". De Santis v. Romeo, 177 AD2d 616, 576 N.Y.S.2d 323 (2d Dept. 1991). "Once the movant provides sufficient proof, the burden of production rests on the adverse party to demonstrate the existence of a triable issue of fact" Katona v. Low, 226 AD2d 433, 641 N.Y.S.2d 62 (2d Dept. 1996).

An agreement must be construed according to the expressed intent of the parties, and effect must be given to the intent as indicated by the language used. See Wallace v. 600 Partners Co., 86 NY2d 543, 634 N.Y.S.2d 669 (1995); Fidelity New York FSB v. Madden, 212 AD2d 572, 622 N.Y.S.2d 744 (2d Dept. 1995). The best approach is to read the entire agreement as a whole and consider the entirety of the agreement in the context of the parties' relationship, rather than "culling distinct provisions out of an entire agreement". NY Prac. Comm. § 59:16 (quoting Road Associates, LLC v. Intern. Business Machines Corp., 4 NY3d 272, 793 N.Y.S.2d 835 (2005)). See also Matter of Riconda, 90 NY2d 733, 665 N.Y.S.2d 392 (1997). "When the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties' reasonable expectations". Lobacz v. Lobacz,72 AD3d 653, 897 N.Y.S.2d 516 (2d Dept. 2010) (quoting Willsey v. Gjuraj, 65 AD3d 1228, 885 N.Y.S.2d 528 (2d Dept. 2009).

In applying the foregoing principles to the instant matter, the Court finds that respondent's interpretation of the lease controls. Paragraph 41 is clear and unambiguous. It requires respondent to pay 100% of all increases in taxes above the base year 2009/2010. Had petitioner intended for respondent to pay 100% of the real estate taxes it should have clearly stated so in the lease. Instead, the lease establishes 2009/2010 as the base year and requires respondent to pay all real estate taxes over that base.

Considering the Court's decision with respect to respondent's summary judgment motion, that part of petitioner's cross-motion that seeks summary judgment is moot.

Respondent's counterclaims for attorney's fees and punitive damages are dismissed. By agreeing to assume the lease, respondent waived its right to counterclaims, except in limited circumstances, that are not applicable here. See Notice of Cross-Motion, Exhibit 1, ¶ 59; Lucas v. [*3]Florent, Inc., 19 Misc 3d 760, 860 N.Y.S.2d 813 (Civ. Ct. New York County 2008) (Lease conditions precluding tenants from interposing counterclaims in commercial landlord-tenant summary proceedings are enforceable.). Paragraph 19 of the lease only entitled petitioner to attorney's fees. See Gannett Suburban Newspapers v. El-Kam Realty Co.,306 AD2d 312, 760 N.Y.S.2d 553 (2d Dept. 2003); FRG Ninth Ave. LLC v. Alrubayi, 19 Misc 3d 1130(A), 866 N.Y.S.2d 92 (Civ. Ct. New York County 2008) ("In a commercial lease situation such as here, there is no reciprocal implied entitlement to attorney's fees unless it is contained in the parties lease agreement".); Gracie Tower Realty Associates v. Danos Floral Co., Inc., 142 Misc 2d 920, 538 N.Y.S.2d 680 (Civ. Ct. New York County 1989) (A commercial tenant's entitlement to recoup legal fees must be reserved by the parties' agreement because the commercial tenant is generally presumed to hold equal bargaining power with that of their landlords during th course of the lease negotiation process.). Further, punitive damages are recoverable only upon showing that the landlord's conduct demonstrated a "high degree of moral culpability, or willful or wanton negligence or recklessness" indicating a conscious disregard for the rights of others". Murray v. 600 East 21st Street, LLC, 55 AD3d 805, 865 N.Y.S.2d 557 (2d Dept. 2008). Respondent failed to establish that petitioner's conduct rose to this level.

Accordingly, respondent's motion for summary judgment is granted. The petition is dismissed.

This constitutes the decision and order of the Court.

Dated: February 22, 2011_____________________________

Genine D. Edwards

Judge of Civil Court