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Adam Leitman Bailey, P.C. Defeats Dismissal Motion, Wins Summary Judgment in Commercial Non-Payment Proceedings during COVID-19

Representing a commercial landlord in two highly contested summary non-payment proceedings, Adam Leitman Bailey, P.C. defeated the tenant’s motions for summary judgment and dismissal and won summary judgment awarding the landlord possessory and monetary judgments.

The cases involved two adjacent spaces on the ground floor of a commercial building located in the Port Morris area of the Bronx. The tenant rented both spaces pursuant to separate but similar leases. The tenant defaulted in rent payments; Adam Leitman Bailey, P.C. commenced non-payment proceedings. The tenant asserted a host of defenses. It claimed laches, challenged the ownership structure of the building, challenged the identity of the tenant pursuant to the leases, and alleged defenses of illegality based on lack of a conversion of the building’s certificate of occupancy for the tenant’s desired uses. 

After the cases were stayed for several months due to COVID-19, the tenant, through counsel, moved for summary judgment and moved to dismiss both petitions. Among numerous arguments, the tenant claimed that the petitions failed to state a cause of action, that the owner’s claims were barred by laches, illegality based on the tenant’s certificate of occupancy claims, and failure to name a necessary party based on the challenge of the tenant’s identity under the leases. 

Adam Leitman Bailey, P.C. opposed the motions and cross-moved, seeking (i) dismissal of the tenant’s affirmative defenses as conclusory and lacking merit; (ii) amendment of the petitions to include additional rent owed through the date of the motions; (iii) summary judgment on the owner’s non-payment claims; and (iv) in the alternative, use and occupancy. 

Supported by established case law, Adam Leitman Bailey, P.C. argued that the defense of laches is unavailable in a commercial summary non-payment proceeding, that the leases (which must be enforced as written) placed the burden concerning the certificate of occupancy on the tenant not landlord, that the leases clearly established the identity of the tenant, and that challenges to ownership could not be made in the context of a summary proceeding. Using an affidavit and documentary evidence the firm established the owner’s prima facie non-payment case. Simultaneously, Adam Leitman Bailey, P.C. attacked the tenant’s submissions based on a failure to submit documentation in admissible form, failure to raise triable issues of material facts by affidavits based on personal knowledge, and insufficiency of factual allegations in support of the tenant’s defenses. 

Analyzing the briefs, the court adopted the firm’s arguments. It denied tenant’s motions in their entirety and granted the firm’s cross-motions amending and updating the petitions to include all rent owed, dismissing tenant’s affirmative defenses, and awarding to the firm’s client summary judgment awarding possessory and monetary judgments for the unpaid rent. 

Vladimir Mironenko, partner in Adam Leitman Bailey, P.C.’s landlord-tenant and real estate litigation departments represented the commercial landlord.

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