166 Delancey, LLC v Ovadia
2024 NY Slip Op 30465(U)
February 13, 2024
Supreme Court, New York County
Docket Number: Index No. 156475/2021
Judge: Mary V. Rosado
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 156475/2021
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/13/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. MARY V. ROSADO PART 33M
Justice
--------------------·-··-····--·---·-·--------------------------------X INDE X NO. 156475/2021
166 DELANCEY, LLC
MOTION DATE 03/03/2023
Plaintiff,
MOTION SEQ. NO. - - - ' -
00~1
• V .
MENACHEM OVADIA OPERATI NG AS BOOST MOBILE, DECISION + ORDER ON
MOTION
Defendant.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 14, 15, 16, 17, 18.
19, 24, 25, 26, 27 28,29, 30,31
were read on this motion to/for JUDGMENT · SUMMARY
Upon the foregoing documents, Plaintiff 166 Delancey, LLC 's ("Plainti ff") motion for an
Order granting summary judgment in favor of Plaintiff and against Defendant Menachcm O vad ia
("Defendant") is denied . Plaintiff's motion for an Order dismissing Defendant' s affirmative
defenses is granted in pa.it and denied in part. Defendant's cross-motion to di smiss Plaintiff' s
Complaint is denied.
I. Background anti Procedural Histon •
The case at bar. commenced by Plaintiff against Defendant on July 9, 2021 (I\YSCEF Doc.
I). concerns Ocfcndant-s alleged failure to pay rem and additional rent due and owed under a lease
dated August 8. 20 19 (the "Lease'") between Plaintiff as Landlord and De fondant as Tenant (the
·'Lease") for De fendant' s occupancy of the ground floor commercial space at 102 Clinton Street
a/k/a 166 Delancey Street, New York, l\cw York (the '·Premises") (N YS CLlF Doc. IS alp. 6).
Plaintiff's Complaint (NYSCEF Doc. I) asserts causes of action against Defendant for breach of
contract (''First Cause of Aclion"), a declaratory judgment asserlin~ that Defendant is liable to
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Motion No. 001
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Plaintiff for monetary obligations under the Lease ("Second Cause of Action··). and attorneys· fees
under the Lease ("Third Cause of Action") (NYSCEF Doc. I).
On August 29, 2021, Defendant fi led an Answer to Plaintiffs Complaint interposi ng 24
affim1ativc defenses (NYSCF.F Ooc. 4). On March 23, 2023. Plaintiff brought the instanL motion
for an Order dism issing Defendant "s affirmative defenses and granting summary j udgment in favor
of Plaintiff and against Delendant (NYSCEF Doc. 14). On July 24, 2023, Defendant filed a cross-
motion to dismiss Plaintiff's Complaint (NYSCEF Doc. 24).
II. Discussion
a . Plaintiffs Motion to Dismiss Defendant' s Affirmative Defenses is Granted in
Part and Denied in Part
Pursuant 10 CPLR 321 l (b) "(a] party may move for judgment dismissing one or more
defenses on the ground that a defense is not stated or has no meri t. " It is well established that "[ol n
a motion to dismiss affirmative defenses pursuant to Cl'Ll{ 32 1 l(b), the plaintiff hears the burden
of demonstrating that the defenses arc without merit as a matter of law'' (5./3 E. 11th S1. Huus.
Dev. Fund Corp. v / Jendrick, 90 AD3d 541 l 1st Dept 20111). Further, lhe Appellate Division has
held that "filn deciding a motion to dismiss a defense, the defendanl is entitled to the benefit of
every reasonable intendmcnt of the pleading, which is to be liberally construed" (Id.), While "the
court should not dismiss a defense where there remain questions of fact requiring a trial"' (Granite
State Ins. Co. v 'franJa1/antic Reins. Co. I 32 AD3d 479. 48 I fl sl Dept 2015 J), hare legal
conclusions that '"present no factua l or legal bases" are insufficient to raise an affirmative defen~e
and should he dismissed (Cluysler F.. Bldg., L.L.C. v Keenwawa. Inc., 2 17 A03d 494 [ 1st Depl
2023]).
Defendant"s Third ihrough Sixth, Eighth, Tenth. Eleventh. Fifteenth through Seventeenth
and lineteenth through Twenty-Third Affirmative Defenses, each a mere sentence long, are
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Motion No. 001
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conclusory, boilerplate, and fail to provide the Court with any factual or legal basis. As such,
Defendant"s Third through Sixth. Eighth, Tenth, Eleventh. Fifteenth through Seventeenth and
Nineteenth through Twenty-Third Affirmative Defenses arc d ismissed as conclusory.
Defendant's Second Affirmati ve Defense asserts that thi s action must be dismissed because
New York City Administrative Code § 22- 1005 renders '·tmcnforceable provisions in leases
providing for personal guaranties by individuals where the tenant's business was negatively
impacted by COVID-1 9" (:--JYSCEF Doc. 4 at~ 30). As Plaintiffs Complaint in this action does
not seek to enforce any guaranty, Defendants Second A mm,ative Defense is dismissed a~
mcritless.
Defendant' s Seventh Affim,ative Defense asserts that "Plaintiff has received payment in
foll by one or more wllatcrol sources" and therefore Plaintiff "would be unjustly enriched if
allowed to foreclose upon said property" (NYSCEF Doc. 4 at ii 35). As Plaintiff's claims herein
make no reference to any alleged "foreclosure," Defendant' s Seventh Afiirmative Defense is
dismissed as meritlcss.
Defendant's l\inth Affirmative Defense a~serts that "some of the documents annexed to
the complaint are not those signed by tl,e dcfendant(s)" (NYSCEF Doc. 4 at ,. 37). As no
documents are annexed to Plaintiffs Complaint (NYSCF.F Doc. I). Defendants 1inth Anirmative
Defonse is d ismissed as meritless.
Defendant's Twelfth Anirmati vc Defense asserts that " Dcl'cndants never entered into any
contract or agreement with plaintifT" and ''[flherc exists no privily of con tract with the plaintiff'
(J\ YSCEF Ooc. 4 at 1 40). Tn his Al'fidavit in Opposition to Pl aintii'f's Motion and in Support o f
De fendant's Cross-Motion, Defendant testifies, infer alia, that he is not responsible for any lease
or guaranty (NYSCEF Doc. 26 at 1), that he did not sign any lease or guaranty (l\YSCEF Doc.
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Motion No. 001
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26 at 1 2), an