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Jewel of Asia, Inc. v. Unique Affairs at Mansion Hill Corp.

Other Lower Courts

December 31, 2007

Jewel of Asia, Inc., Jewel of Asia Realty Corp., Mahfil Corporation and Syed A. Nayeem, Petitioners,
v.
Unique Affairs at Mansion Hill Corp., Respondent.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

To: Evan Wiederkehr, Esq., DELBELLO DONNELLAN WEINGARTEN WISE WIEDERKEHR, LLP, Attorneys for Petitioners, One North Lexington Avenue

Edward R. Hopkins, Esq., KERN AUGUSTINE CONROY SCHOPPMANN. P.C., Attorneys for Respondent

OPINION

Francesca E. Connolly, J.

Petitioners/landlord, referred to collectively as "Jewel of Asia," commenced this non-payment proceeding to recover possession of commercial premises from respondent/tenant and a money judgment for rent arrears in the sum of $90,000.00, with interest from April 1, 2007, together with attorneys' fees, costs and disbursements. Respondent moves to dismiss the petition upon grounds that the Court lacks subject matter jurisdiction over the matter in that the proper party did not file the petition in accordance with RPAPL 721(1) and the petition is not properly verified. Petitioners oppose the motion upon grounds that the petitioner is the owner and landlord of the premises and therefore, is a proper party to commence a non-payment proceeding; and that respondent has waived any objection to the verification and captioned name of the petitioner by failing to raise the issue in the proceedings pending in Supreme Court between the same parties relating to the same leased premises. Petitioners cross-move for an Order directing respondent to remit rental arrears into escrow during the pendancy of this action.

For the reasons set forth herein, the respondent's motion to dismiss is denied. The Court reserves decision on petitioners' motion directing respondent to remit rental arrears pending the proceedings to be held on January 3, 2007.

PROCEDURAL AND FACTUAL BACKGROUND

This non-payment proceeding was commenced by petitioners, Jewel of Asia, Inc., Jewel of Asia Realty Corp., Mahfil Corporation and Syed A. Nayeem, as landlord, against respondent, Unique Affairs at Mansion Hill Corp., as tenant, seeking to recover possession of the leased commercial premises located at 25 Studio Hill Road, Briarcliff Manor, New York, based upon non-payment of rent in the sum of $90,000.00, plus interest since April 1, 2007, together with attorneys' fees, costs and disbursements. Although Jewel of Asia, Inc., Jewel of Asia Realty Corp., Mahfil Corporation and Syed A. Nayeem, are named as petitioners, the petition is brought in the name of Jewel of Asia Realty Corp., only, as owner of the premises and landlord to the respondent, and is verified by Syed Nayeem, as President of Jewel of Asia Realty Corp.

The petition was served upon respondent on November 27, 2007. The respondent served an answer to the petition on December 3, 2007, which contains a non-specific affirmative defense of improper verification. The parties appeared in Court on December 6, 2007, where the respondent raised specific objections to the verification of the petition, and moved to dismiss the petition based upon lack of subject matter jurisdiction. The Court gave the parties the opportunity to brief the issues and articulate their respective positions in writing.

Respondent moves to dismiss the petition upon grounds that the lease for the premises lists Jewel of Asia, Inc., as the landlord, and therefore, the petition is jurisdictionally defective pursuant to RPAPL 721(1) because Jewel of Asia Realty Corp. is not the named landlord in the lease. Petitioners oppose the motion upon grounds that the petitioner is the owner and landlord of the premises and therefore, is a proper party to commence a non-payment proceeding; and that respondent has waived any objection to the captioned name of the petitioner by failing to raise the issue in the proceedings pending in Supreme Court between the same parties relating to the same leased premises. Petitioners cross-move for an Order directing respondent to remit rental arrears into escrow during the pendancy of this action. Respondent objects to this request based upon the defense of partial actual eviction.

In support of their respective positions, the parties have submitted copies of affidavits of Syed Nayeem, as an officer and shareholder of Jewel of Asia Realty Corp. and Mahfil Corporation, and Guy DeMeo, as sole shareholder and owner of Unique Affairs, which were used in connection with the proceedings in Supreme Court. In addition, the parties have submitted a copy of the lease, the deed to the premises, and other documents as exhibits.

Based upon the submissions, the Court concludes that the premises, which are located in a residential zoned neighborhood, but are used as a catering and restaurant facility based upon a prior non-conforming use, have been owned by Jewel of Asia Realty Corp. since February 28, 2001. Mahfil Corporation was the corporate entity that operated the catering and ...


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