Upon reviewing Petitioner's Motion for Summary Judgment ("Motion"), Respondent's Opposition ("Opposition"), and Petitioner's Reply ("Reply"), together with all supporting documents, Petitioner's Motion is decided as follows.

On or about May 21, 2024, Petitioner commenced the instant action against Respondent seeking a judgment of possession with the issuance of a warrant to evict, and money damages in the total amount of $48,042.09 for overdue monthly and additional rent, plus interest and incurred attorneys' fees.

Petitioner is the owner and landlord of a building located at 200 East 16th Street a/k/a 157-165 3rd Avenue, New York, New York 10003 ("Building") and Respondent is the tenant in possession of the Ground floor and a portion of the Basement located in the Building ("Subject Premises") pursuant to a commercial lease agreement between Petitioner and Respondent ("Lease"). Respondent interposed an Answer on June 13, 2024 ("Answer"), asserting eight affirmative defenses and one counterclaim. On July 18, 2024, Petitioner moved for summary judgment, seeking to (1) amend its Petition pursuant to CPLR 3025(c) to include rent that had accrued since the commencement of the instant action; (2) a money judgment in the amount of $79,857.12 with interest owed as of the date of the Motion, or if the Court declined to permit an amendment of the petition, a money judgment in the amount of $48,042.09 with interest, and reasonable attorneys' fees incurred pursuant to the Lease; (3) dismissing and/or striking Respondent's affirmative defenses pursuant to CPLR 3013, 3018(b), 3211(b) and 3212; and (4) dismissing Respondent's Counterclaim pursuant to CPLR 3212. Respondent opposed arguing that Petitioner was not entitled to amend its Petition and that Petitioner was not entitled to summary judgment as the amount of overdue rent alleged was in dispute. Petitioner responded to the Opposition and this matter was subsequently assigned to this Court for a determination.

Pursuant to CPLR 3025(c), "the court may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just including the granting of costs and continuances" (CPLR 3025[c]). Here, Petitioner sought to amend the Petition to reflect nonpayment of rent in the amount of $79,857.12 with interest owing as of the date of the Motion. Respondent objected the amendment, claiming that Petitioner was not entitled to such an amendment as it failed to include a copy of the amended petition with the Motion and because the amount of alleged overdue rent stated in the Petition was in dispute.

It is well established that leave to amend a petition shall be "freely given", and the Court finds that there was no evidence of any "prejudice or surprise" to Respondent resulting from the proposed amendment (see CPLR 3025[b]; see also McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757, 450 NE2d 240, 463 NYS2d 434 [1983]; JPMorgan Chase Bank, N.A. v Low Cost Bearings NY Inc., 107 AD3d 643, 644, 969 NYS2d 19 [1st Dept 2013]; Dupont Realty, LLC v Garcia, 73 Misc 3d 128[A], [App Term, 1st Dept 2021]). The record indicates that Respondent was aware of the summary nonpayment proceeding made against it, and that Petitioner did not raise any additional allegations against Respondent in its proposed amendment. The proposed amendment merely set forth to include all accrued rent since the commencement of the proceeding, and thus did not prejudice or surprise Respondent as to the proposed amendment (see A.N. Frieda Diamonds, Inc. v Kaminski, 122 AD3d 517, 998 N.Y.S.2d 6 [1st Dept 2014]).

In addition, "since the limited proposed amendment was clearly described in the moving papers, [Petitioner's] failure to submit a proposed amended petition with its moving papers (see CPLR 3025[b]) was a technical defect, which [should be] overlooked" (see Dupont Realty, LLC, 73 Misc 3d 128[A], [App Term, 1st Dept 2021]; see also CPLR 2001; Medina v City of New [*2]York, 134 AD3d 433, 19 N.Y.S.3d 732 [2015]).

Thus, the Court finds that Petitioner is permitted to amend the Petition to reflect the amount of monthly and additional rent owed as of the date of the Motion in the amount of $79,857.12.

To prevail on a motion for summary judgment, the movant must show that "there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law" (see Winegrad v New York Univ Med Center, 64 NY2d 851, 853, [1985]; Dallas-Stephenson v Waisman, 39 AD3d 303, 306 [1st Dept 2007]; Ostrov v Rozbruch, 91 AD3d 147, 152, 936 NE2d 31 [1st Dept 2012]). The movant has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit (CPLR 3212 [b]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; GTF Mktg. v Colonial Aluminum Sales, 66NY2d 965, 967 [1985]; see also Kershaw v Hospital for Special Surgery, 114 AD3d 75, 87-88, 978 N.Y.S. 2d 13 [1st Dept 2013]). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (see Zuckerman, 49 NY2d 557, 562 [1980]).

Only when the movant meets this burden, does the burden shift to the opposing party to submit proof in admissible form that establishes a triable issue of fact (CPLR 3212[b]); see Zuckerman, 49 NY2d 557 [1980]; Kosson v Algaze, 84 NY2d 1019, 646 NE2d 1101, 622 NE2d 674 [1995]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124 [2000]).

The Court notes that summary judgment is a drastic remedy and should not be granted where there are material and triable issues of fact present (see Stillman v Twentieth Century Fox F. Corp., 3 NY2d 395 [1957]; F. Garofalo Elec Co v NY Univ, 300 AD2d 186 [1st Dept 2002]). The evidence must be viewed in the light most favorable to the party opposing the motion, including resolving all reasonable inferences in that party's favor (see Jacobsen v New York City Health and Hosps. Corp., 22 NY3d 824, 833, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014]). Where different conclusions may reasonably be drawn from the evidence, the motion must be denied (see Sommer v Federal Signal Corp., 79 NY2d 540 [1992]; Jaffe v Davis, 214 AD2d 330 [1st Dept 1995]).

In support of its Motion, Petitioner offered a certified copy of the deed to the Subject Premises (Motion, Exhibit A); a certified copy of New York City Department of Housing Preservation and Development Multiple Dwelling Registration report for the Subject Premises ("MDR") (Motion, Exhibit B); the Lease (Motion, Exhibit C); a copy of the Real Estate Tax Escalations and Water Charges (Motion, Exhibit D); Petitioner's Fourteen Day Rent Demand with Affidavits of Service (Motion, Exhibit E); Notice of Petition and Petition with Affidavits of Service (Motion, Exhibit F); Respondent's Answer (Motion, Exhibit G); and the rent ledger reflecting the outstanding balance owed by Respondent (Motion, Exhibit H).

Petitioner also submitted an Affidavit of T.J. Russo ("Russo Aff."), an agent of Petitioner, a person with competent knowledge of the instant action, stating the total amount of overdue monthly rent and additional rent in the total amount of $79,857.12 as of the date of the Motion or at $48,042.09 through April 15, 2024. The Russo Aff. also stated that Respondent's rent ledger (Motion, Exhibit H) was made in the regular course of business, that it was the regular course of such business to make and maintain rent ledgers, and that Respondent's rent ledger was a true and accurate representation of Respondent's accrued rent. As Respondent's rent ledger was made pursuant to "an established procedure for the routine, habitual, systematic [*3]making of records that would qualify them as trustworthy accounts" and were "regularly relied on" by Petitioner, the Court finds Petitioner to have established a sufficient foundation for the rent ledger as business records (see People v Kennedy, 68 NY2d 569, 579-580, 503 N.E.2d 501, 510 N.Y.S.2d 853 [1986]; see also CPLR 4518[a]).

As such, Petitioner has established a prima facie case. The burden is then shifted to Respondent to submit proof in admissible form sufficient to raise a triable issue of fact.

Respondent alleged in its First Affirmative Defense that the instant action was procedurally defective as the service of the Fourteen Day Rent Demand was improper. Respondent asserted that the process server served a cashier employed by Respondent by the name of "Jason", an individual with no authority to accept service on behalf of Respondent, and that the United States Postal Service Certified Mail tracking information for a copy of the Rent Demand that was sent to an alternate address at 8553 66th Road, Rego Park, NY 11374 ("Alternate Address") showed that the papers were not delivered as of May 1, 2024.

Pursuant to RPAPL 711(2), in the event of a tenant's default in payment of rent, a summary proceeding may be maintained to remove the tenant from possession when a written demand for rent has been made with at least fourteen days' notice. The statute also dictates that the written demand for rent must be served upon the tenant in the same manner as a notice of petition and petition as prescribed in RPAPL 735.

RPAPL 735(1) states in pertinent part:

"Service of the notice of petition and petition shall be made by personally delivering them to the respondent; or by delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered, a copy of the notice of petition and petition, if upon reasonable application admittance can be obtained and such person found who will receive it; or if admittance cannot be obtained and such person found, by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises; and in addition, within one day after such delivering to such suitable person or such affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail[.]" [Emphasis added]

The first issue is whether the service of the Fourteen Day Rent Demand on a cashier employed by Respondent was improper. Here, the Affidavit of Service for the Fourteen Day Rent Demand stated that service was effectuated on April 25, 2024 at 2:05PM by gaining admittance to the Subject Premises, and delivering a copy with "Jason (Smith) (refused full name), front desk clerk, a person of suitable age and discretion, who was willing to receive same and who is employed at said property" (Motion, Exhibit E). The Affidavit of Zhang a/k/a "Jason" and the Affidavit of Xiong, an officer of Respondent, also confirmed that Jason was served with the Fourteen Day Rent Demand. As such, Respondent did not dispute the fact that Jason was employed at the premises, that he was served, or that he was a "person of suitable age and discretion".

The wording of RPAPL 735(1) is clear in stating that substituted service can be effectuated on an employee of the subject premises; the relevant case law establishes that Jason [*4]as the Respondent's employee could be served for purposes of the statute and need not be Respondent's agent (see generally 113 Downtown LLC v. B&G Enters. of Staten Island, 2002 NY Slip Op 50355[U][App Term, 1st Dept 2002] [Substituted service was properly effected upon an employee at the restaurant premises]; 116 John St. Owner, LLC v. Chea Kim, 59 Misc 3d 148[A], 108 N.Y.S.3d 646, 2018 NY Slip Op 50784[U][App Term, 1st Dept 2018] [Substituted service was properly effected upon an employee of the subject art gallery]; Milonis v. 3273-3285 Westchester Ave. Realty Corp., 70 Misc 3d 136[A], 138 N.Y.S.3d 787, 2021 NY Slip Op 50066[U][App Term, 1st Dept 2021] [Papers were served on an employee]; Merritt Avenue LLC v. Empire Scaffolding Systems, Inc., 77 Misc 3d 142[A] [App Term, 1st Dept 2023] [Substituted service was properly made by delivery of the papers to one of the tenant's employees at the subject premises]).

Respondent also contended in the Affidavit of Service of Zhang a/k/a Jason that the process server had failed to disclose his purpose for the delivery and that Jason would not have had accepted the said delivery had he been made aware of the fact that it was in relation to a nonpayment proceeding. As for Jason's contention that he would not have had accepted service of the Fourteen Day Rent Demand is immaterial as it did not invalidate that service as a matter of law. Contrary to Respondent's argument, it is not a requirement under RPAPL 735(1) that a process server must notify the purpose of the delivery for the service of process to be effectuated.

Moreover, the second issue raised by Respondent was that the Fourteen Day Rent Demand was not delivered by certified mail to its alternate address. It is well established that a properly executed affidavit of service raises a presumption that a proper mailing occurred, and that service will be deemed complete upon mailing (see Engel by Engel v. Lichterman, 62 NY2d 943, 479 N.Y.S.2d 188, 468 N.E.2d 26 (1984); Kihl v Pfeffer, 94 NY2d 118, 122, 722 N.E.2d 55, 700 N.Y.S.2d 87 [1999]; Matter of ATM One, LLC v Landaverde, 2 NY3d 472, 476-477, 812 N.E.2d 298, 779 N.Y.S. 2d 808 [2004]). The Affidavit of Service stated that on April 26, 2024, the Fourteen Day Rent Demand was mailed to both the Subject Premises and alternate address by certified mail and prepaid regular first-class mail, which was in accordance with the mailing requirements of RPAPL 735(1). Thus, service was complete and proper. As Petitioner contended, Respondent did not dispute whether (1) the Fourteen Day Rent Demand was properly mailed to the Subject Premises and the alternate address; (2) Respondent received the papers mailed by certified and regular first-class mail to the Subject Premises; (3) Respondent received the papers mailed by regular first-class mail to the alternate address. Here, Respondent's contention that the service was improper solely rested on Respondent's claim that it failed to receive the certified mail at the alternate address.

Thus, Respondent's assertion is insufficient to raise a triable issue of fact as it failed to rebut the presumption of proper service raised by the Affidavit of Service (see Wells Fargo Bank, NA v. Njoku, 148 AD3d 438 [1st Dept 2017]). The mere denial of receipt of service is "insufficient to rebut the presumption of proper service created by a properly-executed affidavit of service" (see Matter of de Sanchez, 57 AD3d 452, 454, 870 N.Y.S.2d 24 [1st Dept 2008]; De La Barrera v Handler, 290 AD2d 476, 477, 736 NYS2d 249 [2nd Dept 2002]).

As such, the Court finds that Petitioner established its prima facie case of proper service of the Fourteen Day Rent Demand.

For the same reasons as the foregoing, the Court is not persuaded by Respondent's Second Affirmative Defense that there was improper service of the Notice of Petition and Petition, as Jason, an employee of Respondent, has authority to accept service pursuant to RPAPL 735(1). Petitioner has established its prima facie case of proper service of the Notice of Petition and Petition.

Respondent contended that there were triable issues of fact as to whether Petitioner unreasonably withheld consent for the approval of Respondent's requested assignment for the Lease to a suitable assignee.

It is well established that "when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms" (see W.W.W. Assocs. v Giancontieri, 77 NY2d 157, 160, 566 N.E.2d 639, 565 N.Y.S.2d 440 [1990]; Reiss v Financial Performance Corp., 97 NY2d 195, 198, 764 NE2d 958, 738 NYS2d 658 [2001]). Article 11 of the Lease required Respondent to obtain Petitioner's written consent before any assignment of the Lease. In the Opposition, email communications between TJ Russo and Xiong from February 13, 2024 and April 22, 2024 (Opposition, Exhibit D) demonstrated Respondent's request for assignment in writing. However, Petitioner claimed that Respondent did not propose an assignment of the Lease. Petitioner's such allegation is not credible, as it is in direct conflict with the email communications between TJ Russo and Xiong from February 13, 2024 and April 22, 2024 (id.).

Here, triable issue of fact remains as to whether Petitioner unreasonably withheld its consent for Lease assignment.

Respondent contended that not all rent payments had been properly credited and that it had been current on its rent payments through February 2024. Respondent contended, via the Affidavit of Xiong, an officer of Respondent, that the outstanding monthly rent through April 17, 2024, the date of the Fourteen Day Rent Demand, should have been $24,586.36 not $43,001.43, as pursuant to the Lease the base monthly rent for 2024 (fourth year of the Lease) was fixed at $8,195.45. Respondent also contended that the rent ledger was "unclear", and that the additional rent was "arbitrary and inconsistent" (Opposition). New York courts have a strong public policy to resolve matters on the merits (see Bobet v Rockefeller Ctr., N., Inc., 78 AD3d 475, 475, 911 NYS2d 43 [1st Dept 2010]). Here, triable issue of fact remains.

The Court is not persuaded by Respondent's Fifth and Sixth Affirmative Defenses that Petitioner failed to state a cause of action and that Petitioner had lack of standing in the instant action.

Respondent contended that the Petition was jurisdictionally defective pursuant to RPAPL 741 as Petitioner failed to set forth a cause of action for which relief may properly be granted. Pursuant to RPAPL 741, the following five elements must be included in a petition: (1) the interest of the petitioner in the premises from which removal is sought; (2) the interest of the respondent in the premises and his relationship to the petitioner; (3) a description of the premises from which removal is sought; (4) the facts upon which the proceeding is based; and (5) the [*6]relief being sought. Since the Petition in the instant action demonstrated all five elements, RPAPL 741 is not implicated. Thus, Respondent's Seventh Affirmative Defense is dismissed.

Accordingly, it is

ORDERED that Petitioner's motion to amend the petition is partially GRANTED provided that Petitioner shall properly serve the Respondent with the amended Petition within 30 days of the entry of this order; and it is further

ORDERED that Petitioner's motion for summary judgment is partially GRANTED to the extent that Respondent's affirmative defenses #1, #2, #5, #6 and #7 are stricken; and it is further

ORDERED that Respondent's affirmative defenses #3 and #4 shall proceed to trial; and it is further

ORDERED that parties shall appear at Part 52 on February 13, 2025 at 9:30am for a pre trial conference.

This constitutes the DECISION and ORDER of this Court.