404 Park Partners, LP v Lerner

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404 Park Partners, LP v Lerner 2013 NY Slip Op 33160(U) December 9, 2013 Sup Ct, New York County Docket Number: 601145/10 Judge: Richard F. Braun Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 12/17/2013 [* 1] ,. SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: d--:, PART D F BRAUN Hon. R\CHAR · J.S.C. Justice Index Number: 601145/2010 404 PARTNERS LP INDEX NO. _ I t!}a_ . vs. LERNER, JACK,. SEQUENCE NUMBER : 004 MOTION DATE --.-_l'?_J,__ 7 _ 7 I JS' 0_17 11 MOTION SEQ. NO. - - - STRIKE JURY DEMAND TJ.1!~ papers, numbered~, we e rea N;rce~~,~~A Answering Affidavits - 1a1 on this moti: to/for -Ex >f!i/c.e,,JV/1- its df At tW,) d 'Z.. INo(s). Exhibits ?. I No(s). Replying Affidavits I No(s). Upon the foregoing papers, It is ordered that this motion _!:/__ . - - - is~,;&;;·~ ~ 1 ~~ID~~~~? ~ *,_.__~ DP-PE~ ~/? ~~~~ _ w (.J ~ en :::> .., ( -· ~ ~ ,N H Jon ./~~_/:ftv . ~ ' ' - .Jfl ~2;~~4l~ g Q w ~ ~ w w LI. ~ >..:.:.. Fl LED I- ~ z en <( w ~ DEC 11 2013 _J _J :::> 0 LI. (.J w ~ (!) z w ~ !Q w en <( (.J ~ _J ..J NEW YORK COUNTY CLERK'S OFFJCE 0 LI. - :::c: z w 0 I- 0 0 ~ ~ :E LI. ~,J.S.C. ~ 1. CHECKONE: ..................................................................... 0 CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 0 0 , DENIED 0 0 [L}GRANTED IN PART 0 SETTLE ORDER DO NOT POST /~INALDISPOSITION OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] ' . SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 23 -----------------------------------------X 404 PARK PARTNERS, LP, Index No. 601145110 Plaintiff, OPINION -againstJACK LERNER, BRUCE FEFFER as excutor of the estate of Steven Allen Miller and ANITA GROSSBERG, Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X RICHARD F. BRAUN, J.: FILED -, ! l DEC 11 201l GCUrrr";~~';V_YORK l ' 0 In two actions consolidated for joint trial to recover rent due ~d~r guarm{li'of a tenant's , · I L., !·~f('S obligation under a lease, 1 plaintiff moves to strike the jury demand and restore "the matter" to the nonjury trial calendar. Defendant Anita Grossberg (Grossberg) moves for summary judgment dismissing the claims against her. Defendant Grossberg and the other defendants signed guarantees in connection with the leasing of the subject premises. Plaintiffpreviously moved for summary judgment and a default judgment against the various defendant guarantors. The court granted that motion, but the First Department reversed as to Defendant Grossberg. The First Department held in 404 Park Partners, L. P. v Lerner (7 5 AD3d 481, 482 [Pt Dept 2010]) that: A guaranty of a tenant's obligations under a lease must be strictly interpreted in order to assure its consistency with the lease terms to which the guarantor actually consented. Since Grossberg did not sign the 2005 guaranty, and the increase in rent and additional financial terms changed the risk assumed in her 2003 guaranty, the IAS court erred in concluding, as a matter of law, that her obligation under the 2003 guaranty continued through the term of the 2005 lease (Lo-Ho LLC v Batista, 62 AD3d 558 [2009]). Whether that obligation 1 The first action (600605/2009) seeks rent and other amounts accruing between August 2008 and February 1 2009, while the second action (601145/2010) seeks rent and other amounts accruing between March 2009 and May 2010. [* 3] survives the most recent lease extension, under the terms of Grossberg's original guaranty, remains an issue of fact for trial (cf White Rose Food v Saleh, 99 NY2d 589 [2003]). The Appellate Division's holding that there is an issue of fact is the law of the case, and thus this court must follow that (see Preston Corp. v Fabrication Enters., 68 NY2d 397, 405 [1986]). Defendant Grossberg has not shown that, after the Appellate Division ruled, facts came to light in discovery that establish that there is no issue of fact (cf Fielding v Environmental Resources Mgt. Group, 253 AD2d 713 [J81Dept1998] [summary judgment motions were granted where discovery uncovered new information after the earlier round of motion practice]; Freeze Right Re.frig. & A. C. Servs. vCityofNew York, 101AD2d175, 181[I8tDept1984] ["thepolicyagainstmultiplesummary judgment motions has no application where, as here, the first motion, made before discovery, is denied on the ground of the existence of a factual issue which, through later uncovering of the facts, is resolved or eliminated"]). Thus, the summary judgment motion has to be denied. The jury demand must be stricken. The fact that plaintiff seeks to enforce her guaranty is sufficient to implicate the jury waiver in that guaranty (see A. J Armstrong Co. v Nechamkin, 55 AD2d 520 [l5t Dept 1976]; Bonnie-Lassie Sportswear, Inc. v Century Factors, Inc., 283 App Div 702, 703 [l5t Dept 1954] ["the sense and spirit of the jury waiver clause are that disputes of the parties as to the interpretation and application of the agreement and their rights thereunder are not to be submitted to a jury"]). This action cannot be restored to the nonjury trial calendar because the action was never on that calendar, but should be placed on that calendar now that the jury demand has been stricken. Accordingly, by separate decisions and orders, dated December 4, 2013, the motion for summary judgment was denied, and the motion to strike the jury demand was granted. Pursuant to 2 [* 4] , .... CPLR 8106 and 8202, motion costs were granted in favor of the plaintiff and against the defendant, to abide the event. Dated: New York, New York December 9, 2013 RICHARD F. BRAUN, J.S.C. FI L·E D DEC 11 2013 NEWVORK -··- COUNTY CLER~ .OFfl(& 3

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