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Ambrogio & Caterina Giannone Family Ltd. Partnership v. 7th Heaven USA Inc.

District Court of Nassau County, First District

June 28, 2012

Ambrogio & Caterina Giannone Family Limited Partnership, Petitioner(s),
v.
7th Heaven USA Inc., Respondent(s).

The Law Offices of Mason & Mason, P.C. Attorneys for Petitioner

Feldherr & Feldherr, Attorneys for Respondent

HON. SCOTT FAIRGRIEVE, DISTRICT COURT JUDGE

The following named papers numbered 1 to 3 submitted on this Motion on June 6, 2012 papers numbered

Notice of Motion and Supporting Documents1Order to Show Cause and Supporting Documents Opposition to Motion.....................................................................................................................................2
Reply Papers to Motion.............................................................................................................3

Petitioner commenced this non-payment proceeding to recover $80, 601.62 from respondent concerning the property located at 307-309 North Broadway, Jericho, New York. A review of the petition dated March 8, 2012 demonstrates that the $80, 601.62 is comprised of base rent of $1, 205.10 and additional rent of $79, 396.72.

Respondent moves to dismiss the proceeding because "this court lacks subject matter jurisdiction over this proceeding because petitioner is not entitled to a judgment of possession in this proceeding."

Respondent argues that the Landlord/Tenant Part of the District Court is a court of limited jurisdiction and cannot determine this matter due to the fact that petitioner accepted rent from respondent which is summarized in the affidavit of Sohail Haider, President of respondent dated April 10, 2012 (paragraph 5):

The Respondent has paid, and the Petitioner has accepted thirteen rental payments since completion of the work, seven rental payments since the billing for the work, and three rental payments since the alleged demand.

Respondent contends that petitioner cannot seek a judgment of possession because no current rent is due. Petitioner accepted rent from August of 2011 to the present.

Respondent contends petitioner must commence a plenary action to recover the amounts due for "old, contested items of additional rent."

In summary, petitioner contends that collection of current rent deprives this court of jurisdiction to adjudicate this case concerning collection of "additional rent."

Respondent cites several cases involving the doctrine of laches or staleness which bars petitioner's claims. These cases include City of New York v. Betancourt, 79 Misc.2d 907, 362 N.Y.S.2d 728 (App Term 1st Dept 1974), Wasservogel v. Becker, 191 Misc.2d 599, 79 N.Y.S.2d 526 (Bronx Mun Ct 1948), and Weissler v. Webb, 124 N.Y.S.2d 530 (Queens Mun Ct 1953). These cases involve residential cases and not commercial which is the situation in the case at bar. The doctrine of laches is not applicable to commercial cases. See Diversified Bldg. Co. LLC v. Nader Enterprises, LLC, 30 Misc.3d 1222(A), 926 N.Y.S.2d 343, holding that laches is not a viable ...


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