West 45 APF LLC v Take Time to Travel, Inc.

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West 45 APF LLC v Take Time to Travel, Inc. 2012 NY Slip Op 30657(U) March 11, 2012 Supreme Court, New York County Docket Number: 116926/09 Judge: Judith J. Gische 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. ANNED ON 311912012 [* 1] bp PART 1;O. I I -V. I I I I [* 2] 8UPREME COURT OF M E ST, TE OF N W YORl E Cu OF NmYofW: PARTI O ow ~ . _ ~ ~ - ~ D E C I S IORDER ~ Index No.: 116926/00 WEST 45 APF LLC, Plaintiff, 002 -.No.: PRESENT: tjpIJ. Judith J. Glschs J. s.c -against- TAKE TIME TO TRAVEL, INC. and ANIL PATEL, t &Lea F Recttation, as required by CPLR § 2219 [a] of e p this (th-) motion(s): Papera PltF nlm (RRS w/MlR afrirm, exhs MAR 192012 in the review of Numband . . , . .. . , . . . . . . . . . . . . . . , . . . . . . 1 This is an action, by Piainttff West 45 APF LLC ( plainW or West ),to recover damages accrued under a commercial lease agreement, that the Defendants Take lime To Travel, Inc. ( T I T ) entered Into, and that defendant and Ani1 Patel ( Patel ) personally guaranteed (collectively mfemd to as defendanb ). For reasons fully addressed in the Coufa prior order dated October 5,2011 ( prior order ) the Court granted partlal summary judament against defendants on the issue of liablltty,but denied summaryJudgmenton the issue o darnagm. Defendant Patel apposed the motion for summary judgment. f Plaintiff now moves to reargue the prior order on the bash that the Court erred in stating that no admissible evldence WEEI pmvided to establirrh the date that the lea8ed premises were re-let, concluding that thfs fact was set forth only in counsel s attorney Page 1 of 7 [* 3] affirmation. Plaintiffarguem that, contrary to the Courts conclusion, the underlying motion was supported by the reply affldavlt ofRegina Taylor ("Taylor reply amdavit"), the asset manager of the holding and management company of West. Although there is proof of service,defendants have failed to appear or otherwise mapond to this present motion to reargue. A motion for leave to reargue pursuant to CPLR Q 2221 Is addressed to the Court's dismtlon (Folav Y. Roche, 68 A.D.2d 558 ['?stDept. 1979J). It may be grantad on a showing that the Court overlooked or misapprehendedthe facts or the law m a P, Pahl W i D . Carp. v. Kas&, 182 A.D.2d 22 [lst Dspt. 1SBZI). At bar, the Court inwrrectly stated that plaintiff failed to support its underlyingmotion by a person wtth knowledge of the facts (ReginaTaylor). The Court, therefore, grants reargument.' Forthe masons set forth below, the Court adheres to Its decision on the issues of iiabilrty, but, otharwiae, has revised its conclusions on the iswe of damageis. The reader Is presumed to be famlliar with the prior order which is Incorporated by reference herein. PlalnW seeks rent and additional rent a m m from defendant 'T"TTT, pursuant to the terms of 8 lease, for the period of time of November 2009 through November 7, 2010. Piaintlff woks the same from defendant Patel, pursuant to a guarantee, for the perfad of time of November 2009 through February 2010. In his opposition Patel claimed that plaintiff may haw mitigated Its damages by re-latting the Premises, themby reducing any damagea owed, Patel also disputed certain of plaintiffs I methods ofmputatlon used to reach the amounts sought from defendants under the ' Plaintiff did not provide the Court wlth a copy of Patel's oppoailion papers, filed In the undertying motion. The Court however, obtained the underlying file from the Clerk's office and disregards this technical defidency In plalnmPs papem. Page2of 7 [* 4] lease and guarantee. In its prior order, the Court denled, without prajudlce to renew, plalntlffsmotion to amend the cornplalnt The Court al8o dtsmisaed defendant's first and second affirmative defenses, but denid the dismiwai of the third affirmative defense, that the complaint does not properlycompute the amount dues to the landlord. Finally, tha Court grantad summaryjudgment a8 to liability only against llll'and Patel, and directed further discovery on tfm issue ofdamages. In light of the Taylor affidavit, the prior order is rnodMed a8 follows: CPI R B 3212: Take Tlrne To Trrr,vel, ImL Here, the parties do not dlspute that l l l l breached the terms of the commercial lease by unilaterallyvacating the premiseson November30,2009,even though the orlglnal lease term betweenWest and llT waa to have expired May 31,2012. The Taylor Aflldavtt estabilahes that the premises w r e re-let In Jenuary 1, 201 I Plaintiff ddm8 that is n d . seeking any damages incurred after November 2010, which la befom the,premises wsre relet. Therefore, plaintiff daims that the issue of any rent or additional rent that it may have coIleded from the naw tenant are not relevant, because it is not seeking renta from pblntlff for ovsrlapplng periods. In PaWs original opposition papers, he does not dtsputs the calculation of outstanding rent in the amount of $117,333.10. He only proffers the theory that the premises may have been re-kt in time for mttigation of damages to apply. Ms. Taylor's affidavf provesthat Patel's argument is unevailing. Based on the foregoing, the Court now ala0 grants summary judgment to plaintiff, In the amount of $1 17,333.10. W L R 6 3212: P a It le undlsputed, that pursuant to the terms of the guarantee, Patel is penonally [* 5] liable for lllTs breach of the lease. Artlcle C. 1. of the Guarantee containsthe followlng language: 'Principal guaranteesto Landlordthe pymenta and prformence of Tenant's obl'iatlons under an in accordance with the Lease, including, without limitation, the payment of Wed and addMona1 rent (the 'Obligations"). This la a guarantee of payment and not only of collectfon. Guarantor'sllabliky pursuantto this guarantee shall be Itmltedto the sum of Obllgations which accrue up to the data that is the hat to occur of. (a) Tenant vacatlng the Demlsd Premises; (b) Tenant removing Its property from the Demised Premises; (c} Tenant delivering the keys to the Landlord and surrendering the Demised Premises; (d) the cxplratlon of three (3) full calendar months after the date that Tenant has given Landtord wrltten notlce that tt will surrender possession of the Demlsed Promlass. Landlordmay, at iboptlon, procad against Prlnclpal and Tenant, Jolntiy and sewrally, or Landlord may p m e d against Principal under this Agreement wtthout commencing any suit or proceeding of any kind against Tenant, orwithout havlng obtalnedany Judgmentagalnat Tenant. (Thylor A M . , Exhibit "H"). The parb'ea do not dispute that under the Guarantee Patel 1 liable for three months s of rent h m the date vacated the premlsea. Since T I T vacBted as of November 30,2009, Patel claims that he is only personally liable for rent and addltlonel mnt Incurred for tha period o December 1, 2009 through February28,201 0, which he calculatesto total f a $28,058.87. The terms of the guarantee state that Patel is liable for "the sum of t obligationswhich ame'within the relevant period. Pursuant to the calculatlona proffered in the Taylor Reply Affidavit, the Court flnda that Patel is personally liable for the following amounts: - Rent $6,6Se..i8 (x 4 November, December, January, February) Electrictty $1,138.76 (x 4 - November, December, January, February) Water $25 (x 4 - November, December, January, February) Improvements (Incurred sporadlcaliy over 2009) Elwater accesa (undisputed) 1.5% monthly late fee (November, December, January, February) Page 4 of 7 $28,744.72 $4,547.04 $1 00.00 $2,400.00 $840.00 $1,263.69 [* 6] $10 dally late fee (x 120 days) Legal fee8 (incurred from breach to filing of law suit) Total $1,200.00 $a.o? 1.07 $44,896.62 Baaed on the foregolng, the Court now grants summary Judgmentagalnst Patel, In the amount of $44,886.52. 1R !S 3025.ave to m n d the C m Although plaintiff &quests to conform t e pleadings to the evidence under CPLR h Q 3025 (b), the Court grants the motion pursuant to CPLR 5 3025 (c). 'Leave to conform a pleading to the proolf pursuant to CPLR 3025 (c) should be freely granted absent prejudice or surprise resulting from the delay." Rodrbu ez v. Panlo, 81 A.D.3d 805 (24 Dept. 2011). Hem, plaintiff requests leave to amend the complaint to conform the widen- presented on this m o t h to include all sums due and owing under T l l T s lease wlth defendantthrough the date of judgment, lnclusfve. As defendants have not submmed any opposition to thls portbn of the rnotlon, plaintiffs motion to conform the pleadings b the proof I8 granted. CPLR 6 321: AfFimntlva Defenws In lfght of the findings made on reargument, the Court now grants dlsmlaaal of the thlrd aftinnative defense, that the m p l a l n t doaa not properly compute the amount dues to the landlord. PlalntHT has provided both morn aftldavlts from 8 person with personal knowledgeand papers documsntlngthe amounts ouhtandlng and due, thus the Court finds Patel's argumenta unavailing. Attornev'a Fee* The plalntmhas requestedthat the Court set thla matter for a hearing on additional counsel fees incurred in this matter 00 or &er November 2010. Since this motion has Page5of 7 [* 7] been submitted on defauft, the Court, therefore, refers this issue to a Speclal Referee to hear and &terml~. Plalntlff fs hereby directed to serve a copy of thls decision and order u p the office of the Special Referas 86 that this reference may be placed on the calendar. CONCLUSlON For the fomgoing reasons, It I hemby s ORDERED that the motlon for reargument is granted , and It is further ORDERED that upon m-argument, plaintHT, WEST 45 APF LLC s, rnotlon for summary judgment against defendants, TAKE TIME TO TRAVEL, INC. I modifled to s grant the motion for summary judgment in the amount of ONE HUNDRED SEVENTEEN THOUSAND THREE HUNDRED THIRTY THREE DOLIARS AND TEN CENTS ($1 17,333.10)and that the derk shall enter R money JudgmentIn favor of plaintiff together with the mats and disbursements of this actiQn as taxed by the clerk of the Court and plainttff shall have e x W o n thereof; and It I further s ORDERED that upon margumant, plaintiff, WEST 45 APF LLC s, motion for summary judgment agalnst defendant, ANIL P A E L , i modfled to grant the motion for s summary judgment in the amount of FORTY FOUR THOUSAND EIGHT HUNDRED NINETY SIX DOLLARS AND F l W TWO CENTS ($44,898.52) and that the clerk shall enter a money Judgmentin favor of plaintlff together with the costs and dlsburaementa of this action as taxed by the clerk of the Court and plalntiff shall have execution theM and it I further s ORDEREDthatupon reargument, plaintW, WEST45APF LLC s, motion to conform the pleadlnga to the evldencs ia granted; and it is further Page 6 of 7 [* 8] ORDERED that upon m-argument, plaintiff,WEST46 APF LLC's, motiontodismiss defendants, TAKE TIME TO TRAVEL, INC. and ANlL PATEL's, affimtative defenses i s granted as to the third affirmative dehnsas; and it i further s ORDERED that upon re-argument, the bsue of plalntHY WEST 45 APF LLC, reasonable attorneys' fees I granted t the extent of referring the matter to a Speclal s p Rateme ta hear and determine. PlafnttfFshall serve a copy of this decision and order on the on the office of the Special Referee so that this matter may be placed on the calendar; and R I further s ORDERED that any relief not expressly addressed Is hereby denied;and it is further ORDERED that this constitutes the decision and order of the Court. Dated: New Yo , New York March l 2012 f SO Ordered: -+sFILED HON. JUD J. GISCHE, J.S.C. NEW YORK COUNTY CLERKS OFFICE Page 7 of 7

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