Opinion
Index No. 161010/2021
03-11-2022
ROOSEVELT LEE 38 LLC, Plaintiff, v. GOLF & WROBLESKI CPA'S LLP, Defendant.
Smith Carroad Levy Wan & Parikh, P.C., Commack, NY (Timothy Wan of counsel), for plaintiff. Law Offices of Nathaniel Muller, P.C., New York, NY (Nathaniel Muller of counsel), for defendant.
Smith Carroad Levy Wan & Parikh, P.C., Commack, NY (Timothy Wan of counsel), for plaintiff.
Law Offices of Nathaniel Muller, P.C., New York, NY (Nathaniel Muller of counsel), for defendant.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13 were read on this motion for DISMISSAL.
Plaintiff, Roosevelt Lee 38 LLC, brings this action for back rent alleged to be owed under a lease. Defendant tenant, Golf & Wrobleski CPA's LLP, moves to dismiss under CPLR 3211 (a) (7) for failure to state a cause of action. The motion is granted without prejudice.
The complaint alleges, briefly, that (i) defendant leased premises from plaintiff; and (ii) defendant "defaulted under the terms of the lease on June 30, 2021 by failing to make the payments required therein," such that defendant now owes "a balance of $120,333.66 together with an attorney's fee of $24,066.73" for which defendant is responsible under the lease. (NYSCEF No. 1 at ¶¶ 3-4.) Plaintiff now concedes, however, that these allegations are materially inaccurate. As defendant argued in moving to dismiss (see NYSCEF No. 7 at ¶¶ 5-6), defendant was in fact a month-to-month tenant; and plaintiff terminated that month-to-month tenancy by notice served on defendant, effective March 30, 2021—three months prior to the alleged date of default (see NYSCEF No. 10).
Plaintiff argues that the motion to dismiss should nonetheless be denied. Plaintiff contends in its opposition papers that it has proof that defendant owes back rent that accrued over the period of its month-to-month tenancy; and that defendant also owes four months of use & occupancy (U & O) at double rent for a post-termination holdover period. (See NYSCEF No. 12 at 4-5.) Plaintiff attaches copies of the lease and invoices that putatively support its claim. (See id. at 9-32 [lease], 40-74 [invoices].) This court finds plaintiff's argument unpersuasive.
In opposing the motion to dismiss, plaintiff contends that the motion is not merely without merit but "ridiculously frivolous" and "sanctionable." (NYSCEF No. 12 at ¶¶ 35-37.) Given that the motion to dismiss is meritorious, this court disagrees.
Most obviously, plaintiff's monetary claim, as asserted in its opposition papers on this motion, rests on different grounds than the claim as alleged in the complaint. Yet plaintiff did not amend its complaint as of right to correct the allegations supporting its claim.
Nor does this court have a basis to treat the representations in the opposition to dismiss as if they were allegations in the complaint, akin to relying on a verified complaint to support a motion for default judgment under CPLR 3215. The complaint was verified by plaintiff's managing member. (See NYSCEF No. 1 at 3.) Plaintiff's opposition to the motion to dismiss, on the other hand—including the documents that plaintiff proffers to support its revamped claim for relief—is based entirely on an affirmation of counsel. (See NYSCEF No. 12.) That affirmation does not represent that counsel has personal knowledge of the facts (nor identify a basis for any such knowledge). Absent an affidavit made on personal knowledge, this court has no basis on which to rely on the assertions made in plaintiff's opposition. (See Utopia Heart Care, P.L.L.C. v Gramercy Cardiac Diagnostic Servs., P.C. , 192 AD3d 473, 473 [1st Dept 2021] ; Cullin v Spiess , 122 AD3d 792, 793 [2d Dept 2014].)
Additionally, those documents themselves raise their own questions. The original lease was executed between defendant as tenant and (through an agent) Rich Realty LLC as owner. (See id. at 15.) Plaintiff claims entitlement to sue for back rent/U & O under the lease as the assignee of the original lessor. (See NYSCEF No. 12 at ¶ 24.) But the assignment instrument attached to plaintiff's counsel's affirmation reflects a slightly different assignor—Rich Realty Owner LLC. (See id. at 34-35.) Moreover, the assignment reflects a transfer to plaintiff of "the leases and all amendments and modifications thereto set forth in Exhibit A attached hereto and made a part hereof (the ‘Leases ’) made and entered into by the tenants of those spaces described on said Exhibit A" that are located in the building in which defendant was leasing. (Id. at 34 [underlining in original].) But the referenced Exhibit A is not included in the documents attached to the attorney affirmation. Thus, even if one were to credit plaintiff's documentary showing (which, as discussed above, this court declines to do), that showing would not establish plaintiff's right to bring this action against defendant.
Further, the invoices submitted by plaintiff reflect that it assessed defendant U & O at double rent as of March 1, 2021, even though the termination of defendant's tenancy was not effective until the end of that month. (See id. at 74.) The amount alleged to be owed in the complaint does not match the total outstanding balance given in the invoices (or any intermediate balance)—whether or not one accounts for the March 2021 U & O overcharge. (Compare NYSCEF No. 1 at ¶ 4, with NYSCEF No. 12 at 74.)
Finally, plaintiff's complaint alleges that it is entitled to collect $24,066.73 in attorney fees from defendant. Plaintiff's opposition to the motion to dismiss rests this claim on a lease-rider provision that permits the landlord to collect reasonable attorney fees incurred in "collecting or endeavoring to collect Fix Red or additional rent or other charges or any part thereof or enforcing any rights against Tenant under this lease." (NYSCEF No. 12 at 27 [¶ 51.02].) Plaintiff's reliance on this provision, though, does not explain how plaintiff could already be asserting a claim at the start of this action for a definite and substantial sum in attorney fees. Nor does counsel's affirmation mention (or substantiate) any other legal proceeding against defendant that plaintiff undertook to enforce its rights against defendant under the lease.
In short, plaintiff's principal damages claim for unpaid rent and U & O is based on factual allegations that are concededly inaccurate. Plaintiff's additional claim for attorney fees is without foundation. Plaintiff has not attempted to remedy these defects by amending its complaint as of right. (See CPLR 3025 [a].) Plaintiff cannot accomplish the same objective in more roundabout fashion through attaching documents to an attorney affirmation submitted in opposition to the motion to dismiss. And those documents do not establish that plaintiff has a cause of action for the relief sought in any event.
At the same time, the shortcomings in plaintiff's pleadings and filings discussed above lie chiefly in their omitting necessary information and evidence—not that the pleadings and filings affirmatively demonstrate that plaintiff has no valid claim for relief. This court thus does not rule out the possibility that plaintiff may yet be able to establish its entitlement under the lease to collect unpaid rent and U & O from defendant. The court therefore declines to dismiss this action with prejudice.
Accordingly, for the foregoing reasons, it is
ORDERED that defendant's motion to dismiss is granted, and the action is dismissed without prejudice, with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs; and it is further
ORDERED that defendant shall serve a copy of this order with notice of its entry on plaintiff and on the office of the County Clerk, which is directed to enter judgment accordingly.