Galpern v. Air Chefs, L.L.C.
| Decision Date | 13 February 2020 |
| Docket Number | 11023,Index 650347/15 |
| Parties | Robert GALPERN, Plaintiff–Respondent, v. AIR CHEFS, L.L.C., et al., Defendants–Appellants. |
| Court | New York Supreme Court — Appellate Division |
180 A.D.3d 501
118 N.Y.S.3d 603
Robert GALPERN, Plaintiff–Respondent,
v.
AIR CHEFS, L.L.C., et al., Defendants–Appellants.
11023
Index 650347/15
Supreme Court, Appellate Division, First Department, New York.
ENTERED: FEBRUARY 13, 2020
The Law Offices of Edward J. Troy, Greenlawn (Edward J. Troy of counsel), for appellants.
Ilganayev Law Firm, New York (Migir Ilganayev of counsel), for respondent.
Richter, J.P., Manzanet–Daniels, Gesmer, Singh, JJ.
Appeal from order, Supreme Court, New York County (Andrew S. Borrok, J.), entered on or about February 26, 2019, which granted plaintiff's motion for summary judgment, deemed appeal from judgment ( CPLR 5520[c] ), same court and Justice, entered April 23, 2019, awarding plaintiff the sum of $400,316.92 representing unpaid rent, and, as so considered, the judgment unanimously modified, on the law, to vacate the
judgment against defendant
Sheeli Aggarwal and deny summary judgment on both liability and damages on the second cause of action upon the guaranty, and otherwise affirmed, without costs.
The motion court providently exercised its discretion under CPLR 2001 to disregard plaintiff's failure to submit the pleadings because the record was "sufficiently complete" and otherwise available to the court and parties on the NYSCEF docket (see e.g. Studio A Showroom, LLC v. Yoon , 99 A.D.3d 632, 952 N.Y.S.2d 879 [1st Dept. 2012] ).
As for defendants' arguments under the dead man's statute ( CPLR 4519 ), plaintiff does not deny that he is a person "interested in the event," and that the communications described in his affidavit were with the decedent. Because the lease was entered into by defendant Air Chef, Inc., and defendants failed to present any evidence that the corporate defendant was entitled to raise the dead man's statute as a defense...
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In re Manufacturers & Traders Tr. Co.
...its motion with an accurate copy of the pleadings" (id., supra, at 1456, citing Galpern v. Air Chefs, LLC, 180 A.D.3d 501, 502 [2020]). In Galpern, the Appellate Division, Department, had before it a summary judgment motion where the moving party had not supplied the pleadings with its pape......
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...on the New York State Courts Electronic Filing docket from prior motion practice (see CPLR 2214[c] ; see Galpern v. Air Chefs, L.L.C., 180 A.D.3d 501, 502, 118 N.Y.S.3d 603 [1st Dept. 2020] ). The court also properly denied defendant's motion to amend its answer to assert the affirmative de......
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...the court providently exercised its discretion in refusing to disregard that oversight (cf. Galpern v. Air Chefs, L.L.C. , 180 A.D.3d 501, 502, 118 N.Y.S.3d 603 [1st Dept. 2020] ). In any event, as the court correctly determined in the alternative, Bathcanpul failed to meet its initial burd......