UD 31st St., LLC v. Cast Iron Korean BBQ 2 Inc.

• Decision Date: 28 November 2022
• Docket Number: Index Nos. 651219/2020,005
• Parties: UD 31ST STREET, LLC, Plaintiff, v. CAST IRON KOREAN BBQ 2 INC. FORMERLY KNOWN AS CAST IRON POT INC., and HYUN C PARK, Defendants.
• Court: New York Supreme Court

2022 NY Slip Op 34038(U)

UD 31ST STREET, LLC, Plaintiff, v. CAST IRON KOREAN BBQ 2 INC. FORMERLY KNOWN AS CAST IRON POT INC., and HYUN C PARK, Defendants.

Index Nos. 651219/2020, 005

Supreme Court, New York County

November 28, 2022

Unpublished Opinion

MOTION DATE 08/12/2022

DECISION + ORDER ON MOTION

HON NANCY M. BANNON JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 005) 125, 126, 127, 128, 129, 130, 131, 132, 133 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157 158, 159, 160, 161, 162 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER) .

In this breach of contract action, the plaintiff, UD 31^st Street, LLC, owner of commercial premises at 23 West 31^st Street in Manhattan (the premises), seeks to recover unpaid rent and additional rent from the defendants Cast Iron Korean BBQ 2, Inc. (the tenant), and Hyun C. Park (the guarantor) pursuant to a commercial lease (the lease) and a guaranty agreement (the guaranty) the defendants executed on October 24, 2017, and a stipulation of settlement (the settlement agreement) between the plaintiff and the tenant dated December 17, 2019. The tenant vacated the premises on December 24, 2019.

By decision and order dated March 8, 2021, the court granted the plaintiff's motion for summary judgment on the complaint and to dismiss the defendants' counterclaims to the extent it awarded the plaintiff judgment against the defendants, jointly and severally, in the sum of $391,928.00, plus statutory interest from December 24, 2019, and dismissed the defendants' counterclaims. The court otherwise denied the plaintiff's motion without prejudice. On June 13, 2022, the plaintiff filed the instant motion again pursuant to CPLR 3212 for summary judgment on the balance of its claims, those accruing after December 24, 2019, in the sum of $1,269,749.64, and an award of attorneys' fees. The defendants oppose the motion. The motion is granted to the extent provided herein.

While successive summary judgment motions are ordinarily prohibited, exceptions to the rule are permitted where sufficient cause for the subsequent motion exists. Sufficient cause may be shown where the subsequent motion corrects certain defects and its disposition enhances judicial efficiency. See Landmark Capital Investments, Inc. v Li-Shan Wang, 94 A.D.3d 418, 419 (1^st Dept. 2012); Varsity Transit, Inc. v Board of Educ. of City of New York, 300 A.D.2d 38, 39 (1^st Dept. 2002). Where, as here, the first motion for summary judgment was partly denied without prejudice and the court identified particular deficiencies in connection with the first motion that "were such that they could have been explained or corrected in a subsequent motion," the court can properly exercise its discretion to entertain the subsequent motion. U.S. Bank Nat'l Ass'n as Tr. for Residential Asset Mortg. Prod., Inc., Mortg. Asset-Backed Pass-Through Certificates, Series 2005-EFC5 v Shaughnessy, 178 A.D.3d 1324, 1326 (3^rd Dept. 2019). Further, since the defendants do not oppose the plaintiff's motion on the ground that it is an improper successive summary judgment motion, they do not claim any prejudice.

It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." See Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). The motion must be supported by evidence in admissible form (see Zuckerman v City of New York, 49 N.Y.2d 557 [1980]), and the pleadings and other proof such as affidavits, depositions, and written admissions. See CPLR 3212. The "facts must be viewed in the light most favorable to the non-moving party." Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012) (internal quotation marks and citation omitted). Once the movant meets its burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact. See id., citing Alvarez v Prospect Hosp., 68 N.Y.2d 320 (1986).

In support of the instant motion, the plaintiff submits, inter alia, the pleadings; an attorney's affirmation; the affidavit of Dennis Dart, the plaintiff's general corporate counsel; the subject ten-year term lease and guaranty agreement dated October 24, 2017, and signed by the defendants; the December 17, 2019, settlement agreement between the plaintiff and the tenant resolving a non-payment summary proceeding in the Civil Court of the City of New York, New York County, and an action brought by the tenant in this court in August 2019, captioned Cast Iron Pot v UD 31st Street, LLC, Index No. 654909/2019; a rent ledger showing base rental amounts and "violation fees" due from the tenant under the lease; three "OATH/ECB Violation Details" printouts from the New York City Department of Buildings (the DOB) attributable to violations and fines imposed against the subject premises during the tenant's occupancy; receipts showing that the plaintiff paid the fines imposed by the DOB; and the deposition transcript of the guarantor.

The plaintiff's submissions establish entitlement to relief on the remainder of the first cause of action of the complaint, seeking to recover rent arrears incurred under the lease after the tenant's surrender of the premises. 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). Article 18 of the lease at issue here expressly provides that, in the event of any "default, reentry, expiration, or dispossession by summary proceedings or otherwise," the tenant is required to pay both rent amounts due at the time of vacatur and, as liquidated damages, "any deficiency between the rent [covenanted to be paid in the lease] and the net amount, if any, of the rents collected on account of [a] subsequent lease or leases of the [premises] for each month of the period which would otherwise have constituted the balance of the Term of [the] [l]ease." Pursuant to the December 17, 2019, settlement agreement executed by the parties, the tenant would have been excused from paying rent in accordance with this provision "[u]pon…compliance with the terms of [the settlement] agreement." However, as the court previously determined in its decision and order dated March 8, 2021, the defendant failed to comply with the settlement agreement. Accordingly, as referenced in the settlement agreement, the plaintiff is...