Cedeno v. Bollyky

2024 NY Slip Op 30899(U)

• Court: New York Supreme Court, New York County
• Decided: March 19, 2024
• Status: Unpublished

Opinion

Cedeno v Bollyky 2024 NY Slip Op 30899(U) March 19, 2024 Supreme Court, New York County Docket Number: Index No. 159460/2018 Judge: James E. d'Auguste 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. 159460/2018 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 03/19/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. James E. d'Auguste PART 55

Justice -----X INDEX NO. 159460/2018 ANNETTE CEDENO, MOTION DATE 02/22/2023 Plaintiff, MOTION SEQ. NO. 003 - V-

ANDREA BOLL YKY, JOHN PURCELL, DECISION + ORDER ON MOTION

______________________ ___ --------------X Defendants. ,

The following e-filed documents, listed by NYSCEF document number (Motion 003) 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103,104,105,106,107,108,109,110,111,112,113,114,115,116,117,118,119,120,121,122,123, 124, 125, 126, 127, 128, 129 were read on this motion to/for SUMMARY JUDGMENT

In Motion Sequence 003, plaintiff Annette Cedeno ("Cedeno"), a sublessor of defendants

Andrea Bollyky ("Bollyky") and John Purcell ("Purcell") (collectively "defendants"), moves for

summary judgment on causes of action, including rescission of a lease and declaring it null and

void, and dismissal of defendants' counterclaims. Defendants cross-move for summary

judgment in their favor on their first through fourth counterclaims, including a declaratory

judgment that Cedeno breached the sublease, and is in default. For the reasons set forth below,

both the motion and cross:-motion are denied.

The action arises from a sublease contract negotiated in June 2018 between Cedeno and

defendants relating to a cooperative apartment, unit 17/18C, that the parties negotiated, with a

lease term commencing on August 1, 2018 (NYSCEF Doc. No. 73). Cedeno claims she took all

necessary steps to get approved by the co-op Board, was approved, and made arrangements to

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move-in to the unit. Cedeno asserts the sublease was unilaterally, materially altered by

defendants without her knowledge or consent (NYSCEF Doc. No. 73).

Cedeno contends the initial sublease at Paragraph 13 states, " ... Tenants shall deliver to

the Landlords the sum of $217,000 totaling $186,000 representing rent equal to one (1) year,

August 1, 2018-July 31, 2019, and $31,000 representing rent security equal to one (1) month's

rent ($15,500) and the first month's rent ($15,500) due hereunder" (NYSCEF Doc. Nos. 74, see

Exhibit H Rider to Sublease; 92, 125). Yet, Cedeno argues the countersigned sublease she

received was altered and Paragraph 13 stated, " ... tenant shall deliver to the Landlord the sum of

$201,500 totalling '$ I 86,000 representing rent security equal to one (1) year, August 1, 2018-

July 31, 2019, and the first month's rent ($15,500) due hereunder" (NYSCEF Doc. Nos. 74, see

Exhibit I Rider to Sublease, 92, 125). Also, Paragraph 14(b) states, "The Tenant hereby agrees

that the security deposit in the amount of $186,000 (the "security Deposit") is to be held ... " in

an interest-bearing account of the Landlord (NYSCEF Doc. Nos. 74, 92, 125).

Cedeno argues the initial sublease, as she understood it, would have her pay a year's rent

upfront, to be held by defendants, who would deduct the monthly rent each month from the rent

security for one year. She agreed to pay the year's rent upfront as a security to assure defendants

and the co-op Board the rent would be paid monthly (NYSCEF Doc. Nos. 74, 75).

Cedeno argues that she protested the newly added language to the sublease, yet

defendants refused to honor the initial sublease, thus, under duress, as she had to vacate her

current residence but needed a place to live for her and her children, she appeared with the

required checks on August 1, 2018, to take possession of the premises (NYSCEF Doc. Nos. 73,

127). Cedeno claims she was partially evicted for defendants' alleged refusal in having non-

party broker Allison Khan refuse to accept Cedeno' s checks or to tum over the keys for Cedeno

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to take possession of the unit on two separate dates that Cedeno came to the premises to tender

the checks and collect the keys-August 1 and August 6, 2018] (NYSCEF Doc. No. 75).

Defendants argue Cedeno breached various provisions of the sublease requirements,

despite acknowledging its terms, and refused to take possession of the premises, despite being

given several opportunities to do so (NYSCEF Doc. Nos. 92, 125, 126). Defendants claim

Cedeno failed to comply with the requirements of Paragraph 9 of the sublease by failing to

procure a $1 million insurance policy on August 1, 2018, and when she brought the documents

with her on August 6, 2018, they failed to name defendants as additional insureds (NYSCEF

Doc. Nos. 92, 108 Exhibit P, 125, 126). Also, defendants allege Cedeno failed to tender proper

checks, including for the broker's fee. Defendants further argue, after a walk-through of the

premises on August 6, 2018, [now empty, and not "staged"] Cedeno was unhappy with the

condition claiming there was damage that was either hidden by the staging or occurred

thereafter, including to the floors, walls, and that the washing machine appeared broken, and

demanded the conditions be repaired (NYSCEF Doc. Nos. 75, 92, 125, 126). Defendants

contend that in Paragraph 29 of the sublease and Paragraph 8 of the Rider to the Sublease,

Cedeno acknowledged and agreed that she inspected the premises and accepted it in its present

condition "as is," and defendant did not promise to do work in the premises, except as otherwise

provided in the rider to the sublease (NYSCEF Doc. Nos. 92, 125, 126). Defendants assert that

Cedeno allegedly refused to accept the premises because of the complained-of conditions, and

took back the checks she brought (NYSCEF Doc. Nos. 92, 125, 126). Defendants assert

Cedeno's claims of damages were a pretext to avoid the financial obligations under the sublease,

adding that on August 10, 2018, a mere four days after Cedeno appeared at the premises for the

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second time, she entered into a two-year lease agreement at a different premises, to commence

on August 13, 2018 (NYSCEF Doc. No. 128).

Cedeno asserts that defendants' refusal to give her the keys and refusing her possession,

constituted a partial eviction under Real Property Law Section 233-a, and her right of recission

was triggered, thus, no rent is due defendants (NYSCEF Doc. No. 73). Conversely, defendants

contend Cedeno' s breach of the sublease, and failure to cure, entitled them to terminate the

sublease for Cedeno's default, but she must still pay her rent through the end of the sublease

(NYSCEF Doc. No. 92, 126).

Here, the parties have dueling positions, and conflicting testimonies, on the sublease and

the occurrence of Cedeno' s taking possession of the premises. Defendants assert Cedeno failed

to comply with Paragraphs 13 and 14 of the rider to the sublease requiring her to bring checks for

$15,500 for the first months' rent, and $186,000 for a security deposit (NYSCEF Doc. Nos. 92,

125, 126). Cedeno argues the countersigned sublease was materially altered in that the $186,000

was to represent rent security equal to one year - August 1, 2018 - July 31, 2019 - to be held in

an interest-bearing account by landlord, but the countersigned, allegedly altered, lease now

provided that the $186,000 was being held strictly as a security deposit, requiring her to pay

$15,500 in rent monthly (NYSCEF Doc. Nos. 73, 74, 75].

Further, Cedeno claims defendants materially altered the first sublease agreement,

asserting that a well-settled principle of contract law is that one party to a contract may not

unilaterally alter its terms without the consent of all parties (NYSCEF Doc. No. 127; Mount

Vernon City School Dist. v. Nova Cas. Co., 19 NY3d 28, 2012). Yet, defendants allege that the

changes were agreed to in discussions and emails, including an email from Khan to Cedeno

memorializing a conversation between Cedeno and Bollyky concerning the revisions, as an

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alternative when the co-op Board had concerns about Cedeno's income, and potential inability to

pay rent (NYSCEF Doc. Nos. 92, 125, 126).

Cedeno argues Bollyky's affidavit of merit is inadmissible as it "wholly contradicts, and

seeks to rehabilitate, defendant's no recollection deposition testimony" (NYSCEF Doc. No.

127). She asserts that defendant may not submit an affidavit that contradicts aspects of

deposition testimony which raises feigned issues of fact. Rossi v. 88 th Garage Corp., 190 AD3d

504 (1st Dep't 2012). Bollyky's deposition testimony is replete with statements of, "I do not

recall," "I do not know as I was not there," and "I do not specifically recall." Yet, Bollyky's

affidavit recounts specific dates, statements, and facts that contradict her prior deposition

testimony, that Cedeno argues was "strategically designed to rehabilitate defendant's bare and

bareless deposition testimony." Cedeno notes the same is true for Khan's deposition testimony,

which is rife with statements of "Maybe," "I do not recall," and "I don't remember" (NYSCEF

Doc. No. 127).

Defendants argue that details in Bollyky's affidavit are supported by admissible

documents submitted in support of defendants' cross-motion (NYSCEF Doc. No. 128).

Defendants maintain that amplifying details in an affidavit does not amount to a contradiction of

deposition testimony (NYSCEF Doc. No. 128). Alvia v. Mutual, 56 AD3d 311 (1st Dep't 2008).

Defendants contend that the fact Cedeno chose not to ask "the necessary questions" utilizing

documents provided during discovery should not inure to her benefit (NYSCEF Doc. No. 128).

Cedeno additionally claims that upon conducting a walk-through on August 6, 2018, of a

now-empty apartment, with all staging furniture and rugs removed, she noticed damage to the

walls, floors, window shades and that the washing machine was broken (NYSCEF Doc. Nos. 74,

79). Cedeno informed Khan of the issues, but was informed that repairs would not be done and

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the premises is being sublet "as is." Cedeno claims they were asked to leave, the checks were

not accepted, and that she would not be getting the keys to the premises (NYSCEF Doc. No. 74).

Cedeno argues defendants' refusal to accept her checks and failure to tum over the keys

constituted a partial actual eviction. Barash v. Pa. Terminal Real Estate Corp., 26 NY2d 77

(1970). Further, Cedeno claims as defendants partially evicted her from use and enjoyment of

the premises, under Real Property Law Section 223-a, her right of recission was triggered

(NYSCEF Doc. Nos. 74, 127). Cedeno asserts that "when there is a wrongful partial eviction of

the tenant, the right of the landlord to enforce the payment of any rent under the lease is

suspended for the period during which the tenant was deprived of the possession of any portion

of the premises." Two Rector St. Corp. v. Bein, 226 AD 73 (I st Dep 't 1929). Cedeno notes as

defendants never tendered possession of the premises to her, and she was denied possession from

the start of the lease term, defendants are not entitled to any rent (NYSCEF Doc. Nos. 74, 127).

Defendants counter that they gave Cedeno numerous opportunities to take possession of

the premises, but she breached various lease provisions, failed to cure, and they terminated the

lease (NYSCEF Doc. Nos. 92, 125, 126, 128). Defendants assert that they were ready, willing

and able to provide possession of the premises to Cedeno, but she failed and refused to take

possession (NYSCEF Doc. No. 126). Defendants argue further that case law demonstrates that

Cedeno had possession. "As soon as a lease is executed and delivered, the tenant acquires the

right to possession as of the date of the commencement of the term in the absence of physical

possession." Fishel v. Baronelli, Ltd. 119 Misc2d 625 (Civ. Ct. N.Y. Co. 1983). Defendants

claim Paragraph 18(A) of the sublease provides that ifit terminated due to Cedeno's default, that

she must pay to defendants her rent until the sublease has ended (NYSCEF Doc. Nos. 125, 128). '

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As such, defendants assert damages of$238,999.77, plus interest (NYSCEF Doc. Nos.126, 126,

128).

Given the parties' conflicting positions on whether defendants breached the lease by

refusing to give Cedeno the keys, and possession to the premises, or whether Cedeno breached

the lease by failing to cure defects, thus, not taking possession, awarding summary judgment to

either party is inappropriate as material questions of fact remain. Falk v. Goodman, 7 N.Y.2d 87, I 1959 (It is well established that summary judgment may not be granted whenever the pleadings

raise clear, well-defined and genuine issues; nor may it be granted whenever there is doubt as to

the existence of a triable issue or when the issue is arguable since "issue-finding, rather than

issue-determination, is the key to the procedure.")

The deposition testimonies by defendants and the broker are insufficient to provide

insight or corroboration of any accounts asserted by defendants in light of the many answers of

"I don't recall." However, Cedeno fails to submit an affidavit from now-husband, Matthew

Rosenblum, who was present with her at both appearances at the subject building to obtain keys

to the premises from Khan, on August 1 and August 6, 2018; she also fails to submit an affidavit

from the building's super- both of whom may have been able to corroborate her statements

and/or claims. Therefore, given the conflicting testimonies, and Cedeno' s assertions of economic

duress (NYSCEF Doc. No.127), questions of fact persist concerning whether Cedeno failed to

take possession, or if defendants refused to tender possession of the premises to Cedeno. Such

factual questions are best left to a trier of fact to ascertain, thereby precluding summary judgment

to either party.

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Accordingly, it is

ORDERED that the plaintiff's motion for summary judgment is denied, and it is further

ORDERED that the defendants' cross-motion for summary judgment is denied.

This constitutes the decision and order of the Court.

3/19/2024 DATE James d' Auguste, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

APPLICATION:

CHECK IF APPROPRIATE: GRANTED

SETTLE ORDER 0 DENIED

INCLUDES TRANSFER/REASSIGN 8GRANTED IN PART

SUBMIT ORDER

FIDUCIARY APPOINTMENT □ OTHER

□ REFERENCE

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