Island Props., LLC v Calabretta

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Island Props., LLC v Calabretta 2011 NY Slip Op 33520(U) December 14, 2011 Supreme Court, Nassau County Docket Number: 14655/11 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Cour Justice TRI/IS PART 32 NASSAU COUNTY ISLAND PROPERTIES , LLC Index No. : 14655/11 Motion Seq. No. : 01 Motion Date: 11/18/11 Plaintiff - against - KATHLEEN CALABRETTA Defendat. The followine pa1Jers have been read on this motion: Papers Numbered Notice of Motion Affidavit and Exhibits Affrmation in Opposition and Exhibits Pro Se Upon the foregoing papers , it is ordered that the motion is decided as follows: Defendant pro se moves , pursuant to CPLR 3211(a)(7), 3211 (a)( 4), for an order dismissing the Verified Complaint. Plaitiff 3211(a)(10) and opposes the motion. This is a plenar action for monies due pursuat to personal guanty by defendat. Plaintiff commenced the action by filing a Summons and Verified Complaint on or about October 13 2011. See Defendant's Affdavit in Support Exhbit 1. In said Verified Complaint, it is alleged that , on December 17, 2009, plaintiff, as landlord, and The Cherubin Group Inc. Cherub in ), as tenant, entered into a commercial lease for the premises known as 169 South Street , Suite 100 , Oyster Bay, New York. On or about December 18, 2009, certin limited defendant executed a guanty (" Original Guaranty") wherein and whereby defendat unconditionally [* 2] and absolutely guaranteed Cherubin ' s full , prompt and complete payment of certn of its monetary obligations to plaintiff and/or that would become due to plaintiff in the event of a default by Cherubin , under the lease , for inter alia rent, added/additional rent and prior rent abatements (hereinafter collectively " lease payments ). The Original Guaanty was anexed to the lease and made a par thereof. On or about Febru 17 2010, defendant executed a cert limited guaanty which superceded and replaced the Original Guaanty (" Superseding Guaanty" wherein and whereby defendant unconditionally and absolutely guanteed Cherubin s ful, prompt and complete payment of the lease payments. Plaintiff submits that Cherubin defaulted and continues to be in default on the subject lease. Due to its default , Cherubin presently owes plaintiff lease payments totaing $250 221. 51. Accordingly, there is now due and owing the sum of$250 221. 51 to plaintiff from defendant under the Superseding Lease. Additionally, pursuat to the Superceding Guaanty, defendant agreed to reimburse plaintiff for all costs and expenses incured by plaintiff in enforcing and/or attempting to enforce the Superceding Guaranty, including, but not limited to, cour costs reasonable attorney s fees and disbursements. In her motion to dismiss , defendant and frivolous complaint, 01465/201 personally (sic), pro se, submits, " (p)laintiffhas also filed a baseless against Cherubin Group s president, Lenore Malvasio in the amount of$149 598. 00 for alterations made to the premises in question, presumably, although unstated , due to the alleged default by Cherubin Group... Ms. Malvasio is integral to this lease and should be a par to this suit. Plaintiff s (sic) have an active Holdover Petition before the District Cour, First District , fie number LT2049/2011. No default has been decided, in fact, the matter is scheduled for trial on November 28 , 2011.... Plaintiff, therefore , has no cause of action before this cour. The Plaintiff s complaint is wholly without merit as the matter of default is awaiting adjudication in a separate cour , LT20489/2011... Counel for .' [* 3] Plaintiff and Michael J. Menchise, Esq, in house counsel for Plaintiff are aware that frvolous and without merit as, to date , no default has been found. There is no this claim. This claim has been fied for the sole ths action is factu basis for purose of harassment and intimidation and should be dismissed. Plaintiff s Counsel should be sanctioned under FRCP Rule 11. In opposition to defendant' pro se motion , plaintiff first argues that defendant' argument that a prior pending action mandates dismissal of ths action is without merit. Plaintiff submits that " (a) par may move to dismiss on the ground ' that there is another action pending between the same parties for the same cause of action in a cour of any States... state or the United CPLR ~ 3211(a)(4) (emphasis added). " Plaintiff contends that the only paries to See s moving papers the Nassau County District Cour sumar proceeding referenced in defendant' , as petitioner , and Cherubin, as respondent. Defendant in ths case is not are plaintiff par same the District Cour sumar proceeding, so there is no action pending between the " paries so as to fall withn the puriew ofCPLR ~ 3211(a)(4). Plaintiff fuer contends that there are different causes of action in the instat matter and the District Cour matter. The District Cour matter is a holdover seeks to recover a judgment of possession of certn premises proceeding in which plaintiff leased to Cherubin. In the instat action , plaintiff is suing to enforce a personal guaanty. The actions, therefore, are not similar nor suffciently similar. Additionally, the relief sought in the District Cour matter - a possessory instat judgment in the statutory sumar proceeding- is different from the relief sought in the substatially the same so as to warant matter - a money judgment- and therefore not the same or a CPLR ~ 3211(a)(4) dismissal. Furhermore, plaintiff is unable, as a matter oflaw relief sought by its Verified Complaint in the instant matter in the Distrct Cour sumar proceeding because the Cour, in a special proceeding pursuat to Aricle 7 of Actions and Proceedings Law , has no jurisdiction to adjudicate a , to obtain the the Real Propert moneta claim other than rent [* 4] futue rent and allegedly owed. The Superseding Guaranty obligates defendant for past and additional rent , as well as other items beyond that which may be heard in the sumar proceeding. Plaintiff also argues that defendant' s allegation that the Verified cause of action is without merit. Plaintiff states that " Complait fails to state a (t)he general rues of pleadig in contract actions govern the pleadings of the paries in action to enforce a contract of guanty. A Verified Complaint to enforce a guaranty must contain an allegation showing default or the happening of such an event as under the terms of the contract of guaranty renders the defendant liable. instat action sufficiently states causes of Plaintiff submits that the Verified Complaint in the The first cause of action , seeking to enforce the action to enforce the Superseding Guaranty. " suffcient since it Superseding Guaanty for Cherubin s default under the lease, is legally 5), performance by plaintiff 5), the consideration (complaint specifies its terms (complaint 9). 6) and the default or event that rendered defendant liable (complaint (complaint Plaintiff s second cause of action simply seeks to recover its enforcement costs. The Superseding (i. e., Plaitiff for all costs and Guaranty expressly states that ' Guarantor shall reimburse Owner expenses incured by Owner in enforcing and/or attempting to enforce but not limited to cour costs , reasonable attorney s fees and disbursements. With respect to defendant's request for dismissal plaintiff argues pursuat to CPLR ~ 3211(a)(10), (0 )ther than the lone conclusory allegation that ' tease and should be a par to this suit' (see ths Guaanty, including Deft. Aff. Malvasio is integral to ths 2), Defendant offers no factual or legal basis for the relief she seeks. This is an action to enforce a guanty. Malvasio Superseding Guaranty. Plaintiff is not aware of a reason to join Malvasio as a did not sign the par to this case. She is neither an indispensable nor a necessar par. With respect to defendant' s request for sanctions under Rule 11 of the Federal Rules of Civil Procedure, plaintiff argues that there is no legal or statute. factu basis for sanctions under the [* 5] CPLR 3211(a)(4) provides that a par may move to dismiss an action on the basis that there is another action pending between the same paries for the same cause of action in a cour of any state or the United States. Having reviewed the Verified Complaint in the instant action with the Petition Holdover in the Nassau County District Cour action (see Defendant's Affdavit in Support Exhbit 3), this Court finds that said cases involve different causes of action , as well as different paries. Defendant in this case is not a pary to the District Cour sumar proceeding. The Distrct Cour matter is a holdover proceeding in which plaintiff seeks to recover a judgment of possession of certin premises leased to Cherubin. In the instant action, plaitiff is suing to enforce a personal guaranty. The relief sought in the District Cour matter is a possessory judgment in the statutory sumar proceeding while the relief sought in the instat matter is a money judgment. In determining a motion to dismiss pursuat to CPLR 3211(a)(7) for plaintiffs alleged failure to state a cause of action , the Cour will afford the Verified Complaint a liberal construction , accept the facts contained therein as tre, accord plaintiff every favorable inference and determine only whether the facts as alleged fit withn any cognzable legal theory. v. Martinez 84 N. Y.2d 83 614 N. Y.S.2d 972 (1994); A.D. 3d 712 803 N. 2d 135 (2d Dept. 2005); A.D.2d 128 , Fay Estates v. Toys u See Leon Us, Inc. Telcoa, International Corp. 283 2d 679 (2d Dept. 2001). 726 N. Collns v. When viewing plaintiff s Verified Complaint in light of the criteria set fort above, the Court finds that plaintiff has indeed has stated causes of action in both its first and second causes of action. CPLR 3211(a)(10) provides that the Cour should not proceed in the absence of a person who should be a par. Defendant offers no factual or legal basis for her Lenore Malvasio is an indispensable and necessar arguent that par to the instat action. With respect to defendant' s request for sanctions under Rule 11 of the Federal Rules of Civil Procedure , the Cour finds that there is no legal or factul basis for sanctions under the [* 6] statute. Accordingly, defendant's pro se motion , pursuant to CPLR ~ 3211(a)(7), ~ 3211(a)(10) and ~ 321 1 (a)(4) for an order dismissing the Verified Complaint and for an order of sanctions against plaintiff is hereby DENIED. It is fuer ordered that the paries shall appear for a Preliminar Conference on Janua 2012 , at 9:30 a. , at the Preliminar Conference Desk in the lower level of 100 Supreme Cour Drive , Mineola, New York, to schedule all discovery proceedings. A copy of ths Order shall be served on all paries and on the DCM Case Coordinator. There will be no adjourents, except by formal application pursuat to 22 NYCRR ~ 125. This constitutes the Decision and Order of ths Cour. ENTER: DENISE L. SHER, A. Dated: Mineola , New York December 14 , 2011 ENTER DEC 1 6 2011 NAISAU COUNTY COU CLIRK' . OFFICE

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