166 Delancey, LLC v. Ovadia

2024 NY Slip Op 30465(U)

• Court: New York Supreme Court, New York County
• Decided: February 13, 2024
• Status: Unpublished

Opinion

166 Delancey, LLC v Ovadia 2024 NY Slip Op 30465(U) February 13, 2024 Supreme Court, New York County Docket Number: Index No. 156475/2021 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 156475/2021 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/13/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT: HON. MARY V. ROSADO PART 33M Justice --------------------·-··-····--·---·-·--------------------------------X INDE X NO. 156475/2021 166 DELANCEY, LLC MOTION DATE 03/03/2023 Plaintiff, MOTION SEQ. NO. - - - ' - 00~1 • V .

MENACHEM OVADIA OPERATI NG AS BOOST MOBILE, DECISION + ORDER ON MOTION Defendant.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 14, 15, 16, 17, 18. 19, 24, 25, 26, 27 28,29, 30,31 were read on this motion to/for JUDGMENT · SUMMARY

Upon the foregoing documents, Plaintiff 166 Delancey, LLC 's ("Plainti ff") motion for an

Order granting summary judgment in favor of Plaintiff and against Defendant Menachcm O vad ia

("Defendant") is denied . Plaintiff's motion for an Order dismissing Defendant' s affirmative

defenses is granted in pa.it and denied in part. Defendant's cross-motion to di smiss Plaintiff' s

Complaint is denied.

I. Background anti Procedural Histon •

The case at bar. commenced by Plaintiff against Defendant on July 9, 2021 (I\YSCEF Doc.

I). concerns Ocfcndant-s alleged failure to pay rem and additional rent due and owed under a lease

dated August 8. 20 19 (the "Lease'") between Plaintiff as Landlord and De fondant as Tenant (the

·'Lease") for De fendant' s occupancy of the ground floor commercial space at 102 Clinton Street

a/k/a 166 Delancey Street, New York, l\cw York (the '·Premises") (N YS CLlF Doc. IS alp. 6).

Plaintiff's Complaint (NYSCEF Doc. I) asserts causes of action against Defendant for breach of

contract (''First Cause of Aclion"), a declaratory judgment asserlin~ that Defendant is liable to

156475/2021 166 DELANCEY, LLC vs. MENACHEM OVA DIA OPERATING AS BOOST MOBILE Page 1 of 9 Motion No. 001

[* 1] 1 of 9 INDEX NO. 156475/2021 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/13/2024

Plaintiff for monetary obligations under the Lease ("Second Cause of Action··). and attorneys· fees

under the Lease ("Third Cause of Action") (NYSCEF Doc. I).

On August 29, 2021, Defendant fi led an Answer to Plaintiffs Complaint interposi ng 24

affim1ativc defenses (NYSCF.F Ooc. 4). On March 23, 2023. Plaintiff brought the instanL motion

for an Order dism issing Defendant "s affirmative defenses and granting summary j udgment in favor

of Plaintiff and against Delendant (NYSCEF Doc. 14). On July 24, 2023, Defendant filed a cross-

motion to dismiss Plaintiff's Complaint (NYSCEF Doc. 24).

II. Discussion

a . Plaintiffs Motion to Dismiss Defendant' s Affirmative Defenses is Granted in Part and Denied in Part

Pursuant 10 CPLR 321 l (b) "(a] party may move for judgment dismissing one or more

defenses on the ground that a defense is not stated or has no meri t. " It is well established that "[ol n

a motion to dismiss affirmative defenses pursuant to Cl'Ll{ 32 1 l(b), the plaintiff hears the burden

of demonstrating that the defenses arc without merit as a matter of law'' (5./3 E. 11th S1. Huus.

Dev. Fund Corp. v / Jendrick, 90 AD3d 541 l 1st Dept 20111). Further, lhe Appellate Division has

held that "filn deciding a motion to dismiss a defense, the defendanl is entitled to the benefit of

every reasonable intendmcnt of the pleading, which is to be liberally construed" (Id.), While "the

court should not dismiss a defense where there remain questions of fact requiring a trial"' (Granite

State Ins. Co. v 'franJa1/antic Reins. Co. I 32 AD3d 479. 48 I fl sl Dept 2015 J), hare legal

conclusions that '"present no factua l or legal bases" are insufficient to raise an affirmative defen~e

and should he dismissed (Cluysler F.. Bldg., L.L.C. v Keenwawa. Inc., 2 17 A03d 494 [ 1st Depl

2023]).

Defendant"s Third ihrough Sixth, Eighth, Tenth. Eleventh. Fifteenth through Seventeenth

and lineteenth through Twenty-Third Affirmative Defenses, each a mere sentence long, are

156475/2021 166 DELANCEY. LLC vs. MENACHEM OVAOIA OPERATING AS BOOST MOBILE Page 2 of 9 Motion No. 001

[* 2] 2 of 9 INDEX NO. 156475/2021 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/13/2024

conclusory, boilerplate, and fail to provide the Court with any factual or legal basis. As such,

Defendant"s Third through Sixth. Eighth, Tenth, Eleventh. Fifteenth through Seventeenth and

Nineteenth through Twenty-Third Affirmative Defenses arc d ismissed as conclusory.

Defendant's Second Affirmati ve Defense asserts that thi s action must be dismissed because

New York City Administrative Code § 22- 1005 renders '·tmcnforceable provisions in leases

providing for personal guaranties by individuals where the tenant's business was negatively

impacted by COVID-1 9" (:--JYSCEF Doc. 4 at~ 30). As Plaintiffs Complaint in this action does

not seek to enforce any guaranty, Defendants Second A mm,ative Defense is dismissed a~

mcritless.

Defendant' s Seventh Affim,ative Defense asserts that "Plaintiff has received payment in

foll by one or more wllatcrol sources" and therefore Plaintiff "would be unjustly enriched if

allowed to foreclose upon said property" (NYSCEF Doc. 4 at ii 35). As Plaintiff's claims herein

make no reference to any alleged "foreclosure," Defendant' s Seventh Afiirmative Defense is

dismissed as meritlcss.

Defendant's l\inth Affirmative Defense a~serts that "some of the documents annexed to

the complaint are not those signed by tl,e dcfendant(s)" (NYSCEF Doc. 4 at ,. 37). As no

documents are annexed to Plaintiffs Complaint (NYSCF.F Doc. I). Defendants 1inth Anirmative

Defonse is d ismissed as meritless.

Defendant's Twelfth Anirmati vc Defense asserts that " Dcl'cndants never entered into any

contract or agreement with plaintifT" and ''[flherc exists no privily of con tract with the plaintiff'

(J\ YSCEF Ooc. 4 at 1 40). Tn his Al'fidavit in Opposition to Pl aintii'f's Motion and in Support o f

De fendant's Cross-Motion, Defendant testifies, infer alia, that he is not responsible for any lease

or guaranty (NYSCEF Doc. 26 at 1), that he did not sign any lease or guaranty (l\YSCEF Doc.

15647512021 166 DELANCEY. LLC vs. MENACHEM OVAOIA OPERATING AS BOOST MOBILE Page 3 of9 Motion No. 001

[* 3] 3 of 9 INDEX NO. 156475/2021 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/13/2024

26 at 1 2), an

receiving this lawsui t and subsequently the landk1r

However, it is well established that "lsJomething more than a ba ld assertion or forgery is required

to create an issue of fact contesting the authenticity o f a signature·• (Banco Popular N. Am. V

Victory Taxi ,\fgml. , 1 NY3d 381 , 384 12004-i). Further, a defendant's assertion of forgery is not

sufiicient 10 defeat summary judgment when the defendant "has not demonstrnted that [theirj

prclitigation conduct was consistent with a denial of genuineness" (Id).

It is well settled that a signed document is accompanied by a notary public's

acknowledgment establishes a presumption of the notarized signature·s due execution and

genuineness ((ienger v Arie Cienger /995 Life Ins. Trust, 84 AD3cl 471 [1st Dept 20llj).

Con verse ly, where a signature is not notarized, there is no presumption of due execution (Tl) Bank

N.A. v Piccolo Mondo 21" Century. Inc. , 93 AD3d 499,500 [2d Dept 2012 1). The Lease document

filed by Plaintiff herein is not uotari<'.Cd and therefore is not entitled to a presumption of due

execution (NYSCF.F Doc. 18 p. 7). As such, affording Defendant the hcncfit of every reasonable

inlendmeni of the pleading, the Court finds that Defendant has alleged adequate facts to support

his Twelfth Affirmative Defense. and Plaintiff has failed lo show that Defendant's Twelfth

Affirmative Defense is without merit as a mailer of law. Accordingly, PlaintilI's motion to dismiss

Defendant's Twelfth Allirmative Defense is denied.

Similarly, g iven Defendant's affidavit testimony referenced above (NYSCEF Doc. 26),

Defendant has demonstrated the presence of questions or fact regard ing whether l)cfendanl signed

the T.ease in question. As such, Plaintiffs motion to dismiss Defendant's Thirteen1h, and

Fourteenth Al1irmative Defonses is denied.

15647512021 166 DELANCEY, LLC vs, MENACHEM OVADIA OPERATING AS BOOST MOBILE Page 4 of 9 Motion No. 001

[* 4] 4 of 9 INDEX NO. 156475/2021 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/13/2024

IJefendant's First Affirmative Defense asserts that "Plainti IT fails to state a cause of action

upon which relief may be granted'' (N YSCEF IJoc. 4 at 29). It is well settled that an affirmative

defense asserting the failure to state a cause of action "may be dismissed only if all the other

affirmative defenses arc found to be legally insufficient·' (Raine v Allied Artists Productions. Inc.,

63 AIJ2d 914, 915 [ Ist Dept 1978'1). As the Court has declined lo dism iss all of Dcfcndam's

af'lirmativc defenses as legally insufficient, Plainti ffs moti on to d ismiss Defendan t's First

Affirmative Defense is denied.

b. Plaintiff's Motion for Summarv Judgment is Ocnied

Summary judgment is a drastic remedy, to be granted 01liy where the moving pany has

tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v

Restani Const. Corp., 18 NY3d 499. 503 [2012]). The moving party' s "burden is a heavy one and

on a moti.o n for summary j udgment, facts must be viewed in the light most favorable to the non-

moving party." (Jacobsen v New York City Health and 1/osps. Corp.. 22 NY3d 824. 833 [201 4]).

Once this showing is made, the burden shifts to the party opposing the motion to produce

evidentiary proof, in admissible form, sufficient to establish rhe existence of material issues of foci

which require a trial (see e.g.. 7.uckerman v Ciry of New York. 49 ·v2d 557, 562 [1980]:

Pemberton v New York City 'fr. Auth., 304 AD2d 340,342 [I" Dept 2003]). Mere conclusions of

law or fac1 arc insufficient to defeat a motion for summary judgment (see /Janco Popular Nor1h

Am. v Victory Taxi lvlgt.. Inc.. I NY3d 381 [2004]).

As discussed above, IJcfendant's signature on the Lease is nol notarized and thus is not

entitled 10 a presumption of due execution (TD Bank N. A. v Piccolo Mondo l I" Cemury. Inc., 93

A03d 499,500 [2d Dept 2012)). Further, Defendant's rcstimony that he is not responsible for any

lease or guaranty (NYSCEF Doc. 26 al ' I), that he did not sign any lease or guaranry (NYSCEF

156475/2021 166 DELANCEY, LLC vs. MENACHEM OVADIA OPERATING AS BOOST MOBILE Page5of9 Motion No. 001

[* 5] 5 of 9 INDEX NO. 156475/2021 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/13/2024

Doc. 26 at ii 2). and that his " brother signed lhis l signature which [hcj knew nothing about unti l

receiving this lawsuil and subsequently the landlord temmt action" (NYSCL.::F Doc. 26 at ii 5)

demonstrate questions of material fact regarding Lhe legitimacy ofDefondan1's signa1ure on the

Lease which preclude summary judgment.

c. Defendant's Cross-Motion to Dismiss Plaintiffs Complaint is Denied

Preliminarily, l)cfcndant ' s papers in support of his cross-motion to dismiss Plaintiffs

Complaint make no argument in support of dismissal and fail to state any ground upon which such

dismissal is requested (N YSCEF l)ocs. 25-26). However, as Defendant's First Affirmati ve

Defense alleges failure to state a claim (KYSCFF Doc. 4 at ii 29), Defendam's motion to dismiss

will be considered mmlc pursuant to CPLR 321 l(a)(7).

Pursuant to CPLR 32 l l(a)(7), " [a] party may move for judgmen t d ism issi ng one or more

causes of ac1ion usserled against him on the ground that ... the pleading fa ils to state a cause or

action .... " In co nsidering a motion pursuant to CPLR 321 l(a)(7) to dismiss a complaint for failure

to state a cause ol' action, "the court must give the pleading a lihcrnl construction, accept the facts

alleged in the complaint to be Lrue and afford the plaintiff the benefi t of' every possible favorable

inference" (J.P. Morgan Sec. Inc. v Vip,i/ant Ins. Co. 21 l\Y3

criterion is whether the pleading stales a cause of action, and therefore if from it.s four comers

factual allegations are discerned which if taken together can manifest any cause of action, a motion

for dismissal must fail" (Kusher v King 126 AD2d 446, 46711st l)cpt 1987)).

1. Defendant' s Cross-Motion to Dismiss Plaintill's First Cause of Action for I3reach of Con tract is Denied

ll is well established that "[t]o state a claim for breach of contract, a plaintiff must allege:

( 1) 1he purtics en tered into a valid agreement, (2) plaintiff performed, (3) dcfcnclant failed to

perform, and (4) damages" (VisionChina Media Inc. v Shareholder Represenlafive Servs., LLC,

156475/2021 166 DELANCEY, LLC vs. MENACHEM OVAOIA OPERATING AS BOOST MOBILE Pago 6 of 9 Motion No. 001

[* 6] 6 of 9 INDEX NO. 156475/2021 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/13/2024

I 09 J\D3d 49, 58 l Isl Dcpl 2013'1). Plaintiff satisfied ihc first elem en I by claiming that Defendant

and Plain ti ff entered into a lease agreement dated August 8, 2019 (NYSCEF Voe. I at~ 9). Plaintiff

satisfied the second element by alleging that "Plaimiff has pcrfonned its obligations under the

lease·· 0-fYSCEF Doc. I at · 19). Plaintiff satisfied the third clement by claiming that '·r1Jhc

Payment I3reaches cons1i1u1c breaches of the Lease by Defendant'' (NYSCEF Doc. I at ' 20).

Finally, Plainti ff satisfied the fourth element by claiming damages in the amount of S52,347.48

(N YSCEF Doc. I at~ 2 1). As such, Defendant's cross-motion io dismiss Plaintifrs First Cause of

Action for breach of contract is denied.

11 . Defendant's Cross-'vlotion 10 Dismiss Plaintiffs Second Cause of Action for Dcclaratorv Judgment is Denied

The First Department has held that on a motion to dismi ss a declaratory judgmem action

for fai lure to state a cause of action, " the only question is whether a proper case is presented for

invoking the j urisdiction of the court to make a declaratory judgmen t. and not whether the plaintiff

is entitled to a declaratory judgment favorable to him" (I.aw Research Service, Inc. v Honeywell.

inc.. 3 I AD 2d 900, 90 I II st Dept I 969]). As this Coun has proper jurisdiction over the subject

matter of this action pursuant to CPLR Article 3, Defendant's cross-motion to dismiss Plaintiff's

Second Cause of Action for a declaratory judgment is denied.

11 1. Ocfendant's Cross-Motion to Dismiss Plaintiffs Third Cause of Action for Altornev·s fees is Denied

While ii is well established that ·'attorneys' fees arc not recoverable unless authorized by

statute, court rule, or written agreement o f the parties" (Re!fv Nagy. 175 J\D3d 107, 130 [1st Dept

20191), here, Plaintiffs Complaint claims that Plaintiff is entitled to attorneys· foes pursuant to

Article 54 of the Lease (NYSCEF Doc. I at 27). As such, the Court finds that Plaintiff has

15647512021 166 DELANCEY, LLC vs. MENACHEM OVADIA OPERATING AS BOOST MOBILE Page 7 of 9 Motion No. 001

[* 7] 7 of 9 INDEX NO. 156475/2021 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/13/2024

sufli ciently stated a claim for allomcys· fees. Therefore, Defendant's cross-motion to dismi ss

Plaintiff's Third Cause of Action for anomeys' fees is denied.

Accordingly, it is hereby.

ORDERED that Plainti n· 166 Uclancey, LLC 's motion for summary judgment in favor of

Plaintiff and against Uefcndant Menachcrn Ovadia is denied; and it is further

ORDERFD that Pla intiff 166 Delancey, LLC' s motion for an Order d ismissing Defendant

Menachem Ovadia's affirmative dcfonses is granted with respect to l)efendant's Second, Third,

Fourth, Fifth, Sixth, Seventh. eighth, Ninth, Tenth, Eleventh. Fifieenth, Sixteenth, Seventeenth,

'.\!inetecnth, Twentieth. Twenty-First. Twenty-Second and Twenty-Third Affirmative Defense, and

denied with respect to Defendant's First, Twelfth, Thirteenth, Fourteenth, and Eighteenth

Aflinnative Defenses; and it is further

ORDER ED that Defendant Menachem Ovadia' s cross-moti on for an Order dismissing

Plainti ff 166 Delancey, LT.C's Complaint is denied; and iL is further

ORDERED that on or before March 19, 2024, the parties are directed to submit a

proposed Status Conference Order to the Court via e-mail to SFC-l'art33-Clerk(d .nvcourts.gov. If

the parties are unable to agree to a proposed Starus Conference Order, the parties arc directed to

appear for an in-person status conference with the Court in Room 442. 60 Centre Street, on

March 20, 2024 at 9:30 a. m.; and it is farther

ORDERED that withi n IO days o f entry, counsel for Defendant Mcnachem Ovadia shall

serve a copy of this Decision and Order, with notice of entry, on Plainti ff at its last known

business address; and it is further

15647512021 166 DELANCEY, LLe vs. MENACHEM OVADIA OPERATING AS BOOST MOBILE Page 8 of 9 Motion No, 001

[* 8] 8 of 9 INDEX NO. 156475/2021 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/13/2024

ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

2/13/2024 DATE

CHECK ONE; CASE OISPOSED • NON-FINAL OISPOSIT10N

GRANTED □ DENIED • GRANTED IN PART □ OTHER APPLICATION: SETTl!ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

151147512021 166 DELANCEY, LLC vs. MENACHEM OVADIA OPERATING AS BOOST MOBILE Pago 9 of 9 Motion No. 001

[* 9] 9 of 9