35th St. Assocs. v. 7 & up Clothing Store, Inc.

• Decision Date: 14 July 2022
• Docket Number: Index No. 652839/2021,Motion Seq. No. 001
• Citation: 2022 NY Slip Op 32377 (U)
• Parties: 35TH STREET ASSOCIATES, Plaintiff, v. 7 & UP CLOTHING STORE, INC., ISAAC SASSON and RAMIN GIDANIAN Defendant.
• Court: New York Supreme Court

2022 NY Slip Op 32377(U)

35TH STREET ASSOCIATES, Plaintiff,
v.
7 & UP CLOTHING STORE, INC., ISAAC SASSON and RAMIN GIDANIAN Defendant.

Index No. 652839/2021, Motion Seq. No. 001

Supreme Court, New York County

July 14, 2022

Unpublished Opinion

Motion Date 2-1-22

PRESENT: HON. NANCY BANNON, JUSTICE

DECISION + ORDER ON MOTION

NANCY M. BANNON, JUDGE

The following e-filed documents, listed by NYSCEF document number (Motion 001) 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 were read on this motion to/for SUMMARY JUDGMENT.

In this action to recover, inter alia, unpaid rent and additional rent allegedly due under a commercial lease and guaranty agreements, the plaintiff landlord, owner of property at 237 West 35^th Street in Manhattan, moves pursuant to CPLR 3212 for summary as against defendant 7 & Up Clothing Store, Inc., the tenant of Store #4, and defendants Isaac Sasson and Ramin Gidanian, guarantors on the lease and pursuant to CPLR 3211(b) for dismissal of their affirmative defenses. The defendants oppose the motion. The motion is granted in part.

On a motion for summary judgment, the moving party must make a prima facie showing of its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form sufficient to establish the absence of any material, triable issues of fact. See CPLR 3212(b); Jacobsen v New York City Health & Hosps. Corp., 22 N.Y.3d 824 (2014); Alvarez v Prospect Hosp., 68 N.Y.2d 320 (1986); Zuckerman v City of New York, 49 N.Y.2d 557 (1980). Once the movant meets this burden, it becomes incumbent upon the party opposing the motion to come forward with proof in admissible form to raise a triable issue of fact. See Alvarez v Prospect Hospital, supra; Zuckerman v City of New York, supra.

In support of its motion, the plaintiff submits, inter alia, a complaint verified by David Eshaghian, managing partner of the plaintiff, an affidavit of Michael Kaufman of the Kaufman

1

Organization, managing agent for the building, the subject lease and lease extensions, which expired on October 31, 2019, the subject guaranty agreements, a default notice dated April 14, 2021, a rent ledger, an attorney's affirmation and attorney billing records. This proof establishes that the defendant tenant commenced possession of the premises in May of 2009 and remained in possession after October 2019 as a month-to-month holdover tenant on the same terms and paid rent and additional rent for November 2019. The defendants defaulted in their obligations beginning on December 1, 2019, paying only $11,000.00 of the $15,000.00 monthly rent, and paid nothing from January 1, 2020, through October 1, 2021, when the instant motion was filed, for a total outstanding balance as of that date of $334,000.00.

By this proof, the plaintiff has met its burden on the first and fourth causes of action of the complaint alleging breach of contract by establishing (1) the existence of a contract, (2) the plaintiffs' performance under the contract; (3) the defendant's breach of that contract, and (4) resulting damages. See Second Source Funding, LLC v Yellowstone Capital, LLC, 144 A.D.3d 445 (1^st Dept. 2016); Harris v Seward Park Housing Corp., 79 A.D.3d 425 (1^st Dept. 2010). It is well settled that a lease is a contract which is subject to the same rules of construction as any other agreement. See George Backer Mgt. Corp. v Acme Quilting Co., Inc., 46 N.Y.2d 211 (1978); New York Overnight Partners, L.P. v Gordon, 217 A.D.2d 20 (1^st Dept. 1995), aff'd 88 N.Y.2d 716 (1996). Furthermore, "where a guaranty is clear and unambiguous on its face and, by its language, absolute and unconditional, the signer is conclusively bound by its terms absent a showing of fraud, duress or other wrongful act in its inducement." Citibank, N.A. v Uri Schwartz & Sons Diamonds Ltd., 97...