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October 8, 1993



The opinion of the court was delivered by: WILLIAM C. CONNER


 J. & L. Parking Corporation, Inc. ("J&L") brings this action against the United States of America (the "Government"), Trustees of Columbia University in the City of New York (the University), and Collegiate Corporation, Inc. ("Collegiate") for compensatory and punitive damages, declaratory and injunctive relief, and relief by mandamus for allegedly unlawful acts arising out of J&L's lease (the "Lease") of a vacant lot from the University. Specifically, plaintiff alleges that the term of the Lease violated 13 C.F.R. § 106.7(b) and that defendants violated plaintiff's rights under 42 U.S.C. § 2000b by not giving it a ten-year lease, by not granting it an option to renew, and by evicting it from the premises upon the expiration of the Lease term. The matter is before the Court on the University's motion for summary judgment, the Government's motion to dismiss pursuant to Rules 12(b)(1) and (6), Fed. R. Civ. P., and J&L's cross motion for summary judgment to strike the defenses asserted by the University in its answer (the "Answer"). The University's motion for summary judgment and the Government's motion to dismiss are granted.


 The undisputed facts are as follows. J&L entered into a lease with the University for the vacant lot located at 603-611 West 129th Street, New York, New York. The Lease was for an initial term of five (5) years, commencing on July 1, 1982 and expiring on June 30, 1987, but gave J&L the option to renew for an additional five (5) year period, expiring on June 30, 1992, under the same terms and conditions. Compl. P 14. Under the Lease, J&L was not obligated to pay rent but was obligated to pay all costs, expenses, and obligations of any kind relating to the leased property, Lease P 1st, and to develop the vacant premises into a parking lot at its own expense. Rider P 32. In the Lease, J&L represented that all proceeds from a $ 33,000 loan it was to obtain from the Small Business Administration (the "SBA") would be applied toward the improvements made pursuant to P 32. Rider P 46.

 J&L did obtain a loan from the SBA in the amount of $ 33,000. Compl. P 12. As a condition of the SBA's lending of the money, J&L was required to assign the Lease to the SBA as collateral to secure the Loan. After the University entered into an agreement with the SBA in which the University consented to the assignment, See Landlord's Consent and Agreement, Compl. Ex. A, the Lease was so assigned. See Assignment of Lease, Compl. Ex. A.

 Subsequently, J&L occupied the premises and operated such as a parking lot for ten years until June 30, 1992 pursuant to the Lease and the renewal option contained therein. The Lease was not renewed again, Compl. P 16, but J&L continued to occupy the premises. The University then instituted a summary proceeding in Civil Court, New York County, seeking to dispossess J&L. After a hearing, the Civil Court granted possession of the premises to the University, ordered a warrant of eviction whose execution was stayed until November 15, 1992, and granted a money judgment in favor of the University for $ 30,000. Compl. P 25 and Ex. C.

 The Loan has been repaid in full to the SBA, and there is no longer an outstanding assignment. Local Rule 3(g) Stmt. of the University, P 10.


 I. The University's Motion for Summary Judgment

 Rule 56(c) Fed. R. Civ. P. authorizes the granting of a summary judgment only if "there is no genuine issue as to any material fact [so] that the moving party is entitled to judgment as a matter of law." Accordingly, summary judgment may be granted only when, after drawing all reasonable inferences in favor of the non-moving party, no reasonable trier of fact could find for that party. Lund's, Inc. v. Chemical Bank, 870 F.2d 840, 844 (2d Cir. 1989). If material factual matters are in dispute, summary judgment is not appropriate. National Union Fire Ins. Co. v. Turtur, 892 F.2d 199, 203 (2d Cir. 1989). However, summary judgment is especially useful in unmasking frivolous claims, thereby swiftly ending meritless litigation. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir. 1980).

 The University moves for summary judgment on the basis that the affirmative defenses raised in its Answer, namely, failure to state a claim upon which relief can be granted, insufficient service of process, and collateral estoppel and/or res judicata, mandate a judgment of dismissal as a matter of law. We agree with the University as to the first two grounds for summary judgment, and therefore need not reach the collateral estoppel/res judicata issue.

 A. Insufficient Service of Process

 The University moves this Court for summary judgment dismissing J&L's entire cause of action against it for failure properly to serve the Summons and Complaint. Rule 4(d)(3) Fed. R. Civ. P. provides:

Service shall be made . . . upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so ...

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