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Adam Leitman Bailey, P.C. Prevails on Motion for Summary Judgment Against Commercial Tenant in Supreme Court Ejectment Action Under RPAPL Article 6

Through creative lawyering, Adam Leitman Bailey, P.C. found yet another way to win for its client. In this matter, Adam Leitman Bailey, P.C. was faced with a difficult situation while in midst of Covid—Adam Leitman Bailey, P.C.’s client, the landlord of a commercial property in Nassau County (the “Premises”), was at the mercy of its tenant (the “Tenant”). The Tenant—the owner and operator of a retail home improvement business that operated out of the Premises—breached its lease with Adam Leitman Bailey, P.C.’s client by performing an illegal alteration in the Premises. To make matters worse, the Tenant also fell back on rent, just a few months before Adam Leitman Bailey, P.C.’s client discovered the illegal alteration.

When the client came to Adam Leitman Bailey, P.C. seeking help, Adam Leitman Bailey, P.C. was faced with a unique issue—given that the Housing Courts throughout New York implemented an eviction moratorium in response to Covid, how could the client preserve its rights against this contumacious Tenant? In answering this question, Adam Leitman Bailey, P.C. employed one its creative and new Covid-era solutions—seeking recourse through a less often utilized provision of the Real Property Actions and Proceedings Law (“RPAPL”). What many lawyers did not realize during this time was that Article 6 of the RPAPL provides landlords with an effective avenue of eviction-related recourse against defaulting tenants. Specifically, Article 6 of the RPAPL allows landlords to commence Supreme Court actions to evict tenants that have defaulted under the terms of a lease. In other words, these types of cases, otherwise known as “ejectment actions”, provide landlords with the ability to seek possession of a premises outside of the purview of more common, preferred, and generally quicker, Housing Court eviction proceedings. Accordingly, through innovative lawyering and careful attention to legal research, Adam Leitman Bailey, P.C. identified this Article of the RPAPL as a certain body of the law that provides the Supreme Court with jurisdiction to hear an ejectment case brought against a defaulting commercial tenant. This was true even during the existence of the eviction moratorium imposed by the New York legislature throughout the height of COVID. Therefore, since the Housing Courts throughout New York paused all eviction proceedings, Adam Leitman Bailey, P.C. creatively developed this new strategy to allow it to protect its client’s rights against its defaulting Tenant.

It was at this point that Adam Leitman Bailey, P.C. sprung into action. Adam Leitman Bailey, P.C. wasted no time in serving the requisite predicate termination notice on the Tenant in accordance with the parties’ lease agreement. After the Tenant failed to vacate the Premises by the date specified in Adam Leitman Bailey, P.C.’s predicate termination notice, Adam Leitman Bailey, P.C. commenced this unique Supreme Court “ejectment action”. While Adam Leitman Bailey, P.C. advised the client that these types of Supreme Court cases tend to move slowly, the client understood and agreed that this was the most efficient and effective way to enforce its rights against the defaulting Tenant while Housing Court eviction cases were on hold. Here, timing was critical, not just because the Tenant undertook an illegal alteration of the Premises which could have subjected Adam Leitman Bailey, P.C.’s client to liability for potential code violations from relevant city agencies, but also because the Tenant was occupying the Premises rent free. It was on this basis that Adam Leitman Bailey, P.C. brought its action which not only sought an Order ejecting the Tenant, but also awarding Adam Leitman Bailey, P.C.’s client with rent for each month that the Tenant failed to pay prior to, and after, the termination of its lease.

Shortly after Adam Leitman Bailey, P.C. commenced this lawsuit, it wasted no time in swiftly moving for summary judgment against the Tenant. In its summary judgment motion papers, Adam Leitman Bailey, P.C. crafted bulletproof arguments with irrefutable evidence to supplement its claims. However, a new development arose just a few months after Adam Leitman Bailey, P.C. filed its motion for summary judgment—the Tenant vacated the Premises. While the client was relieved that the Tenant was no longer in occupancy the Premises, the issue concerning the Tenant’s failure to pay any rent for almost two (2) years was unresolved. Seemingly, when it came time to oppose Adam Leitman Bailey, P.C.’s motion for summary judgment, the Tenant thought it could get away scot-free with its failure to pay rent.

Here, after vacating the Premises, the Tenant opposed Adam Leitman Bailey, P.C.’s motion based on the theory that the Supreme Court no longer had jurisdiction to hear this case because, among other reasons, the Tenant vacated the Premises and Adam Leitman Bailey, P.C.’s Tenant received the main form of relief that it sought in this case—eviction. Specifically, the Tenant attempted to convince the Court that the client is unable to continue with its “ejectment action” if the Tenant vacated the Premises while the litigation was still active. Adam Leitman Bailey, P.C. was unfazed by this argument. Critically, the Tenant failed to acknowledge that it was still on the hook for the rent that it failed to pay to Adam Leitman Bailey, P.C.’s client for almost two (2) year). In replying to the Tenant’s opposition to the summary judgment motion, Adam Leitman Bailey, P.C., as always, utilized irrefutable case law and innovative reasoning to disprove the Tenant’s position. Adam Leitman Bailey, P.C. made it clear that the Tenant’s decision to vacate the Premises during the pending litigation did not otherwise dispose of the client’s claim seeking to recover unpaid rent from the Tenant. As Adam Leitman Bailey, P.C. argued, the client’s claim for unpaid rent could serve as a standalone cause of action that otherwise survives the already resolved claim seeking ejectment. The Court ultimately agreed.

Specifically, after the motion was moot, and Adam Leitman Bailey, P.C. and the Tenant’s attorney were heard for oral argument on the motion, the Court issued an Order adopting its categorical agreement with Adam Leitman Bailey, P.C.’s position. In sum, Adam Leitman Bailey, P.C. successfully prevailed on the client’s motion for summary judgment, and the Court directed the entry of summary judgment against the Tenant with a future hearing scheduled to evaluate the exact amount of unpaid rent that the Tenant will have to pay to Adam Leitman Bailey, P.C.’s client. After being subjected to the Tenant’s wrongful conduct, Adam Leitman Bailey, P.C.’s client was able to finally not only achieve peace of mind, but also can now look forward to being made whole from the Tenant’s refusal to pay rent for almost two (2) years.

Carolyn Z. Rualo and William M. Pekarsky represent the client in all aspects of this litigation.

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