3 EAST 54TH STREET NEW YORK, LLC, A New York Limited Liability Company, Plaintiff,
PATRIARCH PARTNERS, LLC, Petry Media Corp., Petry Television, Inc., and Blair Television, Inc., Defendants. No. 600176/09.
This decision has been referenced in a table in the New York Supplement.
Donald A. Harwood, Esq., Harwood Reiff, LLC, New York City, for plaintiff.
Daniel Schnapp, Esq., Fox Rothschild LLP, New York City, for defendants.
BARBARA JAFFE, J.
Plaintiff moves pursuant to CPLR 3212 for an order granting it summary judgment on the issue of liability against all defendants but Patriarch Partners, LLC., and granting it a money judgment. Plaintiff also moves pursuant to CPLR 3103 and 3211 for an order dismissing defendants' affirmative defenses. Defendants oppose.
I. FACTUAL BACKGROUND
In December 1999, defendants leased from Third Building Companies, LLC, plaintiff's predecessor-in-interest, the fourth through seventh, part of the ninth, and the eleventh floors of the commercial office building located at 3 East 54th Street, in Manhattan for a term through and including December 31, 2015. (N.Y.SCEF 252).
Pursuant to the lease, plaintiff was required to maintain the premises in a clean and comfortable manner, to maintain and operate the heating, ventilation, and air-conditioning systems, and to empty and clean all waste receptacles. (N.Y.SCEF 260). Defendants allege that beginning in June 2008, there arose garbage removal issues, and that during the winter, the air-conditioning was on and the restrooms lacked hot water, that in December 2008, they thus stopped paying rent, and that in January 2009, they vacated the premises and signed a new lease for commercial office space elsewhere. (N.Y.SCEF 245, 246).
After several defendants were dismissed from the case, the only causes of action against the remaining defendants are breach of contract and unpaid rent. In their answer, defendants raise the following affirmative defenses: (1) failure to state a claim; (2) constructive eviction; (3) unclean hands; (4) plaintiff's breach of the lease; and (5) plaintiff's breach of the covenant of good faith and fair dealing. (N.Y.SCEF 244).
On July 26, 2012, Steven Berlin, the chief financial officer for Petry Holding, Corp., testified at an examination before trial that defendants stopped paying rent in December 2008 because they could no longer afford it, and acknowledged that although he may have complained to plaintiff about garbage collection in the building, defendants did not abandon any portion of the premises because of it. (N.Y.SCEF 245).
By affidavit dated December 5, 2012, Berlin states that in the six or seven months before defendants vacated the premises, garbage was not being removed from the premises, resulting in " an uncomfortable work environment." (N.Y.SCEF 259).
According to the deposition testimony of defendants' subtenants, who remained in the premises after defendants vacated, the air-conditioning was turned on in the winter, making the premises cold, for several years there was only cold water in the bathroom, the garbage was never picked up, and the offices were never cleaned or vacuumed. (N.Y.SCEF 255-258).
II. SUMMARY JUDGMENT ON LIABILITY
A party moving for summary judgment under CPLR 3212 must make a prima facie showing of entitlement to judgment as a matter of law by demonstrating that " the cause of action or defense has not merit." ( People ex rel. Spitzer v. Grasso,50 A.D.3d 535, 544 [1st Dept 2008] ). " Mere conclusions, expressions of hope or unsubstantiated allegations or ...