29th St. Assocs. v. Khachatryan

• Decision Date: 22 November 2022
• Docket Number: INDEX No. 652248/2022,MOTION SEQ. NO. 001
• Citation: 2022 NY Slip Op 34042 (U)
• Parties: 29TH STREET ASSOCIATES LLC Plaintiff, v. IRINA KHACHATRYAN, Defendant.
• Court: New York Supreme Court

2022 NY Slip Op 34042(U)

29TH STREET ASSOCIATES LLC Plaintiff,
v.
IRINA KHACHATRYAN, Defendant.

INDEX No. 652248/2022, MOTION SEQ. NO. 001

Supreme Court, New York County

November 22, 2022

Unpublished Opinion

MOTION DATE 09/12/2022

DECISION + ORDER ON MOTION

HON. NANCY M. BANNON, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 12, 13 were read on this motion to/for JUDGMENT - SUMMARY IN LIEU OF COMPLAINT .

In this action to recover $110,743.90 in damages for breach of a guaranty agreement, the plaintiff, 29th Street Associates LLC, owner of commercial property at 217 East 29th Street in Manhattan, moves pursuant to CPLR 3213 for summary judgment in lieu of complaint against the defendant, Irina Khachatryan, personal guarantor and principal of the former tenant Elita Salonchic, Inc. The defendant filed untimely opposition. The motion is granted in part.

A plaintiff may seek relief under CPLR 3213 "[w]hen [the] action is based upon an instrument for the payment of money only." See HSBC Bank USA v Community Parking Inc., 108 A.D.3d 487 (1st Dept. 2013); Allied Irish Banks, P.L.C. v Young Men's Christian Assn. of Greenwich, 105 A.D.3d 516 (1st Dept. 2013); German Am. Capital Corp. v Oxley Dev. Co., LLC, 102 A.D.3d 408 (1st Dept. 2013). In order to establish a prima facie entitlement to summary judgment in lieu of a complaint, a plaintiff must produce an instrument containing an "unequivocal and unconditional obligation to repay" (Zyskind v FaceCake Mktg. Tech., Inc., 101 A.D.3d 550, 551 [1st Dept. 2012]), one which by its terms is for the payment of money only over a stated period of time (see Bloom v Lugli, 81 A.D.3d 579,580 [2nd Dept. 2011]), and establish that the defendant failed to pay in accordance with those terms. See Zyskind v FaceCake Mktg. Tech., Inc., supra; Rhee v Meyers, 162 A.D.2d 397 (1st Dept. 1990). It has been held that an unconditional guaranty under a lease may fall within the parameters of CPLR 3213. See Cooperative Centrale Raiffeisen-Boerenleenbank, B.A., 25 N.Y.3d 485 (2015);

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Springprince, LLC v Elie Tahari, Ltd., 173 A.D.3d 544 (1st Dept. 2019); Board of Mgrs. of the Saratoga Condominium v Shuminer, 148 A.D.3d 609 (1st Dept. 2017); cf. Times Square Assocs. v Grayson, 39 A.D.2d 845 (1st Dept. 1972). Further, it is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient proof in admissible form to eliminate any triable issues of fact. See Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985). In opposition, the nonmoving party must demonstrate by admissible evidence the...