Coleman v. 5001 Fifth Ave. LLC

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 28, 2019
• Docket: 2019 NYSlipOp 50230(U)
• Status: Published

Opinion

Aaron Coleman, Plaintiff-Appellant,

against

5001 Fifth Avenue LLC, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Louis L. Nock, J.), entered July 11, 2018, which denied his motion for summary judgment.

Per Curiam.

Order (Louis L. Nock, J.), entered July 11, 2018, affirmed, with $10 costs.

We agree that plaintiff failed to tender evidentiary proof in admissible form sufficient to establish its entitlement to summary judgment as a matter of law on its contract claim, arising from defendant net lessee's alleged failure to file a certain Real Property Income and Expense statement (RPIE) with the City of New York. Although the affidavit or affirmation of an attorney may serve as the vehicle for the submission of acceptable attachments providing proof in admissible form (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]), the attached lease agreement, relied upon by movant, was silent on the issue of which party was responsible for filing of RPIEs in general, including the 2012 RPIE at issue. Additionally, the attorney's affidavit submitted in support of the motion contained hearsay allegations of plaintiff who could have easily submitted an affidavit (see Bahlkow v Greenberg, 185 AD2d 829, 831 [1992]) attesting to the parties' intentions and the alleged subsequent oral agreement between them.

Our disposition is without prejudice to plaintiff's renewal of its motion upon proper papers.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: February 28, 2019