River Park Assocs. (1972) L.P. v. Richman Plaza Garage Corp., 10491

• Decision Date: 03 December 2019
• Docket Number: Index 305004/10,10491
• Parties: RIVER PARK ASSOCIATES (1972) L.P., Plaintiff–Appellant, v. RICHMAN PLAZA GARAGE CORP., Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 422
115 N.Y.S.3d 13

RIVER PARK ASSOCIATES (1972) L.P., Plaintiff–Appellant,
v.
RICHMAN PLAZA GARAGE CORP., Defendant–Respondent.

10491
Index 305004/10

Supreme Court, Appellate Division, First Department, New York.

ENTERED: DECEMBER 3, 2019

115 N.Y.S.3d 15

Westermann Sheehy Keenan Samaan & Aydelott, LLP, East Meadow (Michael J. Rosenthal of counsel), for appellant.

Joseph A. Altman, P.C., Bronx (Joseph A. Altman of counsel), for respondent.

Acosta, P.J., Renwick, Mazzarelli, Kapnick, JJ.

178 A.D.3d 422

Order, Supreme Court, Bronx County (Doris Gonzalez, J.),

178 A.D.3d 423

entered on or about January 23, 2018, which denied plaintiff's motion for summary judgment on liability on its rent arrears claim, for dismissal of defendant's counterclaims and affirmative defenses, and to preclude defendant from presenting evidence in support of its counterclaims and affirmative defenses based on the failure to comply with discovery, unanimously modified, on the law, to grant the summary judgment motion, dismiss the affirmative defenses and the fourth counterclaim, and otherwise affirmed, without costs.

Defendant failed to present any evidence disputing the rent arrears claimed by plaintiff. Although the correspondence submitted by plaintiff in support of its motion and the stipulation settling the prior rent arrears action indicated that plaintiff may have had some responsibility for repairs to the garage, paragraph 4 of the lease expressly provided that plaintiff's failure to make repairs could not be used as a set off for rent arrears. Moreover, defendant did not contend that plaintiff failed to provide requested discovery concerning the arrears or that the outstanding depositions would provide evidence refuting the existence of the arrears or of the amount claimed by plaintiff. Information as to the existence and amount of the arrears was not within plaintiff's exclusive knowledge and...