| Rechler Equity B-1, LLC v AKR Corp. |
| 2012 NY Slip Op 05813 [98 AD3d 496] |
| August 1, 2012 |
| Appellate Division, Second Department |
| Rechler Equity B-1, LLC, Appellant, v AKR Corporation,Respondent. |
—[*1] Kressel & Rothlein, P.C., Massapequa, N.Y. (Stephen Kressel of counsel), forrespondent.
In an action to recover damages for breach of a lease, the plaintiff appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), datedNovember 3, 2011, as denied those branches of its motion which were for summary judgment onso much of the first cause of action as sought to recover damages for unpaid rent and additionalrent, on the issue of liability on the second cause of action, and dismissing the defendant'saffirmative defenses and counterclaim, and granted the defendant's cross motion for leave toserve an amended answer adding a second counterclaim.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thosebranches of the plaintiff's motion which were for summary judgment on so much of the firstcause of action as sought to recover damages for unpaid rent and additional rent, on the issue ofliability on the second cause of action, and dismissing the defendant's affirmative defenses andcounterclaim are granted, the defendant's cross motion for leave to serve an amended answerasserting a second counterclaim is denied, and the matter is remitted to the Supreme Court,Suffolk County, for a hearing to determine the amount of reasonable attorneys' fees to beawarded, if any, and thereafter for the entry of a judgment in favor of the plaintiff and against thedefendant in the principal sum of $50,510.64 for unpaid rent and additional rent, and awardingreasonable attorney's fees, if any.
The plaintiff is the owner of commercial property located in Melville. The defendant was atenant of this property. The parties entered into a lease, which stated on its cover sheet that it was"made . . . February 2004 . . . for a term of 7 years and one month." Arider to the lease, however, provided that "the term of this lease shall expire on May 31, 2011."On March 7, 2011, the defendant returned its key to the premises to the plaintiff by certified mail.The plaintiff responded with a letter acknowledging receipt of the key, but noting that the lease"expires May 31, 2011," and explaining to the defendant, inter alia, that "we do not accept earlysurrender of the lease." The defendant vacated the premises in February 2011, and did not payrent for March 2011 through May 2011. The plaintiff commenced this action to recover damagesfor breach of the lease, [*2]and thereafter moved for summaryjudgment on the complaint and dismissing the defendant's affirmative defenses and counterclaim.The defendant opposed the motion, and cross-moved for leave to amend its answer to assert asecond counterclaim for damages it allegedly sustained as a result of a burglary at the property in2009. The Supreme Court denied the plaintiff's motion because the "[plaintiff's] affidavits are notoriginally signed"; the court also granted the defendant's cross motion.
The Supreme Court should not have denied the plaintiff's motion for summary judgment onthe ground that the affidavits submitted in support thereof were not "originally" signed. CPLR2101, entitled "Form of papers," specifically states, at subdivision (e) thereof, that "copies,rather than originals, of all papers, including . . . affidavits . . . may beserved or filed" (CPLR 2101 [e] [emphasis supplied]). Accordingly, the Supreme Courtshould have considered the photocopies of the plaintiff's affidavits submitted in support of themotion for summary judgment, and addressed the merits thereof (see Billingy v Blagrove, 84 AD3d848, 849 [2011]; Campbell v Johnson, 264 AD2d 461, 461 [1999]).
The plaintiff established its prima facie entitlement to judgment as a matter of law on itsclaim for unpaid rent and additional rent charges, with proof that the lease did not expire untilMay 31, 2011, and that the defendant failed to pay the rent and charges prescribed under the leaseuntil that date. In opposition, the defendant failed to raise a triable issue of fact. In particular, thedefendant did not make a showing that the lease was ambiguous with respect to the terminationdate thereof (see Fox Paper v Schwarzman, 168 AD2d 604, 605 [1990]), since that dateis determined by the terms of the rider, rather than any contrary provision contained or inscribedin the preprinted portion of the lease (see Johnston v MGM Emerald Enters., Inc., 69 AD3d 674, 676-677[2010]). The plaintiff also established its prima facie entitlement to judgment on the issue ofliability on its second cause of action, which sought to recover a reasonable attorney's feepursuant to the terms of the lease (see Cier Indus. Co. v Hessen, 136 AD2d 145, 149[1988]). The defendant failed to raise a triable issue of fact in opposition.
The Supreme Court improvidently exercised its discretion in granting the defendant's motionfor leave to interpose an amended answer so as to assert an additional counterclaim seekingdamages allegedly incurred by the defendant as a result of a burglary at the subject premises in2009. Pursuant to CPLR 3025 (b), leave to amend a pleading should be freely given, " 'providedthat the amendment is not palpably insufficient, does not prejudice or surprise the opposing party,and is not patently devoid of merit' " (Fusca v A & S Constr., LLC, 84 AD3d 1155, 1157 [2011], quotingSheila Props., Inc. v A Real GoodPlumber, Inc., 59 AD3d 424, 426 [2009]). Pursuant to the terms of the lease, the"[plaintiff] . . . shall not be liable for, and [the defendant] waives all claims for lossor damage to [the defendant's] business or damage to . . . property sustained by [thedefendant] resulting from any accident or occurrence (unless caused by or resulting from thenegligence of [the plaintiff] . . . other than accidents or occurrences againstwhich the [defendant] is insured)" (emphasis supplied). In order words, the defendant mayonly seek to recover for damage or loss to its business from the plaintiff if it can truthfully allegethat the plaintiff's negligence caused or contributed to that damage or loss and that the defendantwas not insured for that damage or loss. In an affidavit of the defendant's vice-president, whichwas submitted in support of the cross motion, he specifically stated that "of course we hadinsurance [covering the burglary losses] and were reimbursed by our carrier." This admission,together with the quoted provision of the lease, rendered the defendant's proposed counterclaimpatently devoid of merit, since it was precluded by the lease. Thus, the defendant's motion forleave to serve an amended answer to assert this counterclaim should have been denied.
The defendant's remaining contentions, including those addressed to the branches of theplaintiff's motion which were for summary judgment dismissing its affirmative defenses andcounterclaim, either have been rendered academic in light of our determination or are withoutmerit. Skelos, J.P., Dillon, Leventhal and Sgroi, JJ., concur.