1911 Richmond Ave. Assoc., LLC v. G.L.G. Capital, LLC

• Decision Date: 31 March 2009
• Docket Number: 2008-07965.
• Citation: 876 N.Y.S.2d 151,2009 NY Slip Op 02575,60 A.D.3d 1021
• Parties: 1911 RICHMOND AVENUE ASSOCIATES, LLC, Respondent, v. G.L.G. CAPITAL, LLC, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

60 A.D.3d 1021

876 N.Y.S.2d 151

2009 NY Slip Op 02575

1911 RICHMOND AVENUE ASSOCIATES, LLC, Respondent, v. G.L.G. CAPITAL, LLC, et al., Appellants.

2008-07965.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided March 31, 2009.

In an action to recover damages for breach of two leases, the defendants appeal from an order of the Supreme Court, Richmond County (McMahon, J.), dated July 17, 2008, which denied the motion of the defendant J.P. Turner & Co., LLC, pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint insofar as asserted against it.

Ordered that the appeal by the defendants G.L.G. Capital, LLC, Rocco Guidicipietro, and Robert Peters is dismissed, as those defendants are not aggrieved by the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is affirmed on the appeal by the defendant J.P. Turner & Co., LLC; and it is further,

Ordered that one bill of costs is awarded to the plaintiff payable by the defendant J.P. Turner & Co., LLC.

The plaintiff commenced this action to recover damages for breach of two leases for the rental of commercial office space. The defendant J.P. Turner & Co., LLC (hereinafter Turner), moved pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint insofar as asserted against it, contending that it was not a signatory to the leases; nor did it have any relationship with the signatory tenant, the defendant G.L.G. Capital LLC (hereinafter GLG). The plaintiff pleaded in the complaint that GLG was either a subsidiary, agent, representative, or licensee of Turner, and therefore, Turner could be held liable for GLG's breach.

In support of its motion, Turner submitted an attorney's affirmation and a licensing agreement allegedly entered into between Turner and the two individual defendants, who were also members of GLG. Turner alleged that it did not have any relationship with GLG since GLG was not a signatory to this licensing agreement.

In order to demonstrate entitlement to dismissal of a complaint pursuant to CPLR 3211 (a) (1), the documentary evidence submitted must conclusively establish a defense to the asserted claims as a matter of law (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Williams v Williams, 36 AD3d 693, 695 [2007]; New York Community Bank v Snug Harbor Sq. Venture, 299 AD2d 329,330 [2002]). Here, the existence of a licensing agreement between Turner and the individually-named defendants that was not executed by Turner fails to establish the absence of any relationship or agreement between...