958 Sixth Ave. Bake, LLC v. SCG Realty II, LLC

• Decision Date: 01 March 2012
• Docket Number: Index No. 602700/2009
• Parties: 958 SIXTH AVENUE BAKE, LLC, and ALEXANDER P. XENOPOULOS, Plaintiffs v. SCG REALTY II, LLC, and SALVATORE J. BULLARO, Defendants
• Court: New York Supreme Court

2012 NY Slip Op 30794

958 SIXTH AVENUE BAKE, LLC,
and ALEXANDER P. XENOPOULOS, Plaintiffs
v.
SCG REALTY II, LLC, and SALVATORE J. BULLARO, Defendants

Index No. 602700/2009

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

DATED: March 1, 2012

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

I. BACKGROUND

Plaintiff 95 8 Sixth Avenue Bake, LLC, and defendant SCG Realty II, LLC, executed a lease dated July 8, 2008. The lease provided for SCG Realty to deliver the leased premises at 1330 Broadway, New York County, to 958 Sixth Avenue Bake by January 31, 2009. In lieu of a security deposit, 958 Sixth Avenue Bake gave a letter of credit to SCG Realty. Although the parties disagree regarding the specific contents and timing of the parties' negotiations for the lease, during their dealings plaintiff Xenopoulos, a managing member of plaintiff limited liability company (LLC), paid $250,000.00 to defendant Bullaro, a member of defendant LLC. Bullaro then executed a handwritten promissory note to repay Xenopoulos, with interest from February 1, 2009. By the terms of another handwritten agreement dated July 8, 2008, plaintiffs' attorney was to hold the promissory note in escrow and release it to Xenopoulos only in the event SCG

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Realty did not deliver possession of the premises to 958 Sixth Avenue Bake. Defendants never delivered the premises.

Plaintiffs claim, first, that the letter of credit be returned; second, breach of the promissory note; and third, damages for lost good will from breach of the lease. Plaintiffs moved for summary judgment on the first and second claims, but not the third, and to dismiss defendants' five affirmative defenses. C.P.L.R. §§ 3211(b), 3212(b) and (e). At oral argument the parties stipulated that the court may consider both the lease and the deed to the premises as authenticated and admissible for purposes of plaintiffs' motion. Aff. of Alexander Xenopoulos (Nov. 30, 2010) Exs. E and J. In a written stipulation dated March 3, 2 011, defendants consented to summary judgment on plaintiffs' first claim.

II. SUMMARY JUDGMENT STANDARDS

To obtain summary judgment on plaintiffs' second claim, plaintiffs must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005); Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 (2003). If plaintiffs satisfy this standard, the burden shifts to defendants to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Morales v. D & A Food Serv., 10 N.Y.3d 911, 913

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(2008); Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004). In evaluating the evidence for plaintiffs' motion, the court must construe the evidence in the light most favorable to defendants and accept their version of the facts as true. Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 37 (2004).

The court may dismiss an affirmative defense if the defense is without merit. C.P.L.R. § 3211(b). Upon plaintiffs' motion to dismiss defendants' affirmative defenses, it is not defendants' burden to establish their defenses by admissible evidence, but plaintiffs' burden to establish that the defenses are legally inapplicable. Rosenzweig v. Givens, 62 A.D.3d 1, 7 (1st Dep't), aff'd, 13 N.Y.3d 774, 775-76 (2009); 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90 A.D.3d 541, 542 (1st Dep't 2011); Vita v. New York Waste Servs., LLC, 34 A.D.3d 559 (1st Dep't 2006); Santilli v. Allstate Ins. Co., 19 A.D.3d 1031, 1032 (1st Dep't 2005).

III. PLAINTIFFS' PRIMA FACIE CLAIM FOR BREACH OF THE PROMISSORY NOTE

Plaintiffs establish a prima facie claim by Xenopoulos for Bullaro's breach of...