ZV NY, Inc. v. Moskowitz, Index No. 650581/2014, 08/27/2014 (Bransten, J).

By Jennifer Branca | Staff Writer

Contracts: Breach; Notice to Cure; Motion For Summary Judgment: CPLR 3212(b); Recusal: 22 NYCRR 100.3 (B)(9)(b); Industry: Real Estate.

Plaintiff, tenant, commenced an action seeking a Yellowstone injunction and declaratory judgment that it had rectified the default previously entered in response to Defendant’s notice to cure. Defendant’s Notice to Cure arose from noise complaints emanating from Plaintiff’s store.  Defendant made the first documented complaint several months before Plaintiff initiated the suit, and other subsequent complaints were made thereafter. However, the parties agree that there have been no complaints in the past several months.

The Court issued an order to show cause regarding Plaintiff’s request for a Yellowstone injunction, which included a temporary restraining order pending the determination of that issue.  After, the Court granted Plaintiff’s request for a Yellowstone injunction.  Defendant then filed an answer and counterclaim for attorney’s fees.  Plaintiff moved for summary judgment and Defendant cross-moved for recusal.

Defendant argued that recusal is mandated by 22 NYCRR 100.3 (B)(9)(b), which states that a judge “shall not […] make commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.”  Defendant’s motion was based on purported bias by the court. Defendant alleged that the Court gave Plaintiff’s counsel legal advice.  Defendant contended that if Plaintiff’s counsel followed the court’s instruction to exercise their option to renew the lease, then the court would find for Plaintiff if Defendant did not renew their lease.  However, the Court held that its statements to a litigant regarding compliance with applicable legal requirements or the consequences of its failure to do so, with respect to the option to renew the lease, does not reveal the impartiality that Defendant suggested.  Accordingly, the Court denied Defendant’s cross-motion for recusal because the alleged bias was unsupported by the record.

Furthermore, Plaintiff moved for summary judgment and sought a declaratory judgment because it has cured the alleged default and that Defendant could not terminate the lease.  Defendant opposed Plaintiff’s motion on several grounds alleging the motion was procedurally deficient.  Defendant argued that Plaintiff failed to submit an affidavit by a person having knowledge of the facts, as required under CPLR 3212(b).  Instead, Plaintiff submitted an affirmation of its attorney along with accompanying exhibits.  Defendant asserted that attorney affidavits were not sufficient support for a motion for summary judgment.  However, the court held that the affidavit or affirmation of an attorney, even if he has no personal knowledge of the facts, served as the vehicle for the submission of acceptable attachments that are an admissible as evidentiary proof. As such, the Court found that Plaintiff’s use of an attorney affirmation, as the means of introducing exhibits in support of its motion is not dispositive. Finally, the Court granted summary judgment upon Defendant’s counsel’s statements that the Plaintiff rectified any breaches of the lease.

ZV NY, Inc. v. Moskowitz, Index No. 650581/2014, 08/27/2014 (Bransten, J).

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