2451 First Ave. v. Shalem
| Decision Date | 28 November 2022 |
| Docket Number | Index No. 654051/2019,Motion Seq. No. 001 |
| Citation | 2022 NY Slip Op 34045 (U) |
| Parties | 2451 FIRST AVENUE LLC, Plaintiff v. NOAH SHALEM, Defendant. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 26, 27, 28, 29, 30, 31 : were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)
Upon the foregoing documents, and after oral argument, which was held on November 15, 2022 where Martin I. Gold, Esq. appeared for Plaintiff 2451 First Avenue LLC ("Landlord") and Thomas J. Tyrrell Jr., Esq. appeared for Defendant Noah Shalem ("Guarantor"), Landlord's motion seeking dismissal of Guarantor's counterclaim and summary judgment pursuant to CPLR § 3212 is granted.
Landlord filed its Complaint on July 16, 2019 seeking to enforce a guaranty and to recover attorneys' fees (NYSCEF Doc. 1). Landlord alleges that a lease was executed between Landlord and non-party tenant NYC Auto Body, Inc. ("Tenant") on August 18, 2011 for the premises known as 2451 First Avenue, front garage and lot, New York, NY, with a term ending on August 31,2016 (the "Lease") (id. at ¶ 3). The Lease was extended for two years to August 31, 2018 (id. at ¶ 4). Guarantor executed a guaranty of the Lease dated August 11, 2011 wherein Guarantor guaranteed the full performance and observance of all obligations to be performed by Tenant until the date of Tenant's actual surrender of the demised premises (id. at ¶ 5).
After litigation between Landlord and Tenant in the Civil Court of the City of New York, a judgment was issued in favor of Landlord against Tenant in the amount of $172,530.68 for rent and attorneys' fees, as well as a warrant of eviction (the "Prior Judgment") (id. at ¶¶ 6-7). Tenant was evicted on July 2, 2019. However, it is alleged that Guarantor has not paid any of the sums owed by Tenant (id. at ¶¶ 8-12).
On September 9, 2019, Guarantor filed its Answer with counterclaims (NYSCEF Doc. 3). Guarantor asserted seven boilerplate affirmative defenses that are a mere sentence long, as well as a counterclaim for attorneys' fees alleging that that Guarantor did not guarantee the Lease (id.). Landlord filed its note of issue on June 28,2022 (NYSCEF Doc. 13). On August 8, 2022, Landlord filed the instant motion for summary judgment (NYSCEF Doc. 14).
Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v Restani Const. Corp., 18 N.Y.3d 499, 503 [2012]). The moving party's "burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party." (Jacobsen v New York City Health and Hosps. Corp., 22 N.Y.3d 824, 833 [2014]). Once this showing is made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial. See e.g., Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; Pemberton v New York City Tr. Auth, 304 A.D.2d 340, 342 [1st Dept 2003]). Mere conclusions of law or fact are insufficient to defeat a motion for summary judgment (see Banco Popular North Am. v Victory Taxi Mgt., Inc., 1 N.Y.3d 381 [2004]).
To show prima facie entitled to summary judgment on a breach of contract claim, Plaintiff must prove the existence of a contract, Plaintiff's performance, Defendant's breach, and damages (see Markov v Katt, 176 A.D.3d 401, 402 [1st Dept 2019]). "On a motion for summary judgment to enforce a written guaranty, all that the creditor need prove is an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty." (L Raphael NYC Cl Corp, v Solow Building Company, L.L.C., 206 A.D.3d 590, 592-593 [1st Dept 2022], quoting City of New York v Clarose Cinema Corp., 256 A.D.2d 69, 71 [1st Dept 1998]).
Landlord has satisfied its prima facie burden by showing the existence of an absolute and unconditional guaranty, an underlying debt, and the guarantor's failure to perform under the guaranty. First, the existence of the Lease is undisputed and, indeed, a judgment was obtained on that Lease in the Civil Court (NYSCEF Doc. 20). Second, the Landlord provided the Guaranty which was executed by Guarantor which unequivocally states:
"Guarantor guarantees to Landi ord....the full payment of all rent, whether base rent or additional rent including legal fees payable pursuant to the terms of the Lease and Riders thereto, up to and including the sooner of the date upon which Landlord obtains legal possession of the Premises through legal action or the Tenant surrenders possession to Landlord, without requiring any notice to Guarantor of nonpayment, or proof, or notice of demand or notice of default or nonperformance to hold the undersigned responsible under this Guaranty, all of which the undersigned hereby expressly waives." (id.)
The Guaranty further provides that: "the Guarantor further agrees this Guaranty shall remain and continue in full force and effect as to any renewal, change, amendment, modification, assignment or extension of the Lease." (id.). While the Lease was originally set to expire on August 31, 2016, by letter dated September 5, 2016, Guarantor exercised the option to extend the Lease until February 5, 2016 (NYSCEF Doc. 30). Therefore, by operation of the extension of the Lease and the language of the Guaranty, Guarantor's obligations were also extended. It is further incontrovertible that there exists an underlying debt Tenant owes to Landlord in the amount of $ 172,530.68 for rent and attorneys' fees in the form of a judgment issued by New York City Civil Court for amounts owed under the very Lease that Guarantor guaranteed (NYSCEF Doc. 20). Therefore, Landlord has met its prima facie burden, and summary judgment is appropriate unless Guarantor can establish the existence of a material issue of fact requiring trial.
Guarantor opposes the motion for summary judgment by arguing (via sworn affidavit) that the Lease was never extended (NYSCEF Doc 24). However, Guarantor's sworn testimony is contradicted by a letter executed by Guarantor wherein Guarantor requested a lease extension (NYSCEF Doc. 30). Indeed, at oral argument, Guarantor's own counsel admitted to not knowing about the existence of this letter and did not address its impact on Guarantor's opposition. Further, the Civil Court, in issuing its judgment, stated that the Lease term extended into August of 2018 (id.). Therefore, Guarantor has not...
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