274 Madison Co. LLC v Tru Legacy Partners, LLC

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274 Madison Co. LLC v Tru Legacy Partners, LLC 2017 NY Slip Op 31284(U) June 14, 2017 Supreme Court, New York County Docket Number: 156875/2016 Judge: Robert D. Kalish 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. [*FILED: NEW YORK COUNTY CLERK 06/16/2017 11:00 AM 1] NYSCEF DOC. NO. 73 INDEX NO. 156875/2016 RECEIVED NYSCEF: 06/16/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon.~~~--'-R~O~B~E_R_T~D_.K_A_L_l_S_H PART 29 Justice INDEX NO. 274 MADISON COMPANY LlC, Plaintiff, 156875/2016 MOTION DATE MOTION SEQ. NO. 5/02/17 001 -v- TRU LEGACY PARTNERS, LLC and SHAWN RODGERS, Defendants. The following papers, numbered 24-44, were read on this motion-to enter a default judgment. Notice of Motion-Affirmation-Diaz Affidavit-Meenaghan AffidavitExhibits A-0- Memorandum of Law-Affidavit of Service Stipulation Withdrawing Motion for Default Judgment as Against Defendant Shawn Rogers Only w u i= en ::::> .., 0 I- C w a:: a:: w LL w a:: .. >_, ~ _, z ::::> 0 LL en I- < Uw Wo::: 3; (!) wz o:::en 0 ~ w ..J en _, <o U LL -w Z::x: 01- I No(s). 24-44 I No(s). 51 Motion by Plaintiff 274 Madison Company LLC for a default judgment, pursuant to CPLR 3215, is granted as to Defendant Tru Legacy Partners ("Tru"), LLC only, and the branch of the motion for entry of a default-judgment as against Defendant Shawn Rogers is withdrawn per stipulation: BACKGROUND Plaintiff alleges-through the sworn affidavit of an employee of its management company Abramson Brothers Company-that Plaintiff (as landlord) and Defendant Tru (as tenant) entered into a commercial space lease commencing on March 1, 2015 and expiring on February 28, 2018, whereby Defendant Tru agreed to pay an annual base rent of $89,831 in equal monthly installments of $7,485.?2. (Diaz Aff. ~~ 5-6; ·see also Ex. C [Lease].) The demised premises were Room 1900 at 274 Madison Avenue. (Diaz Aff. ~~ 1, 5.) i= a:: Oo :i1! LL Plaintiff argues that it is entitled to a default judgment as to Defendant Tru for $41,033 in rent arrears pursuant to a lease between the parties for the time that Defendant Tru was occupying the premises but not paying rent. (Notte Affirm. ~ Page 1 of4 1 of 4 [*FILED: NEW YORK COUNTY CLERK 06/16/2017 11:00 AM 2] NYSCEF DOC. NO. 73 INDEX NO. 156875/2016 RECEIVED NYSCEF: 06/16/2017 14.) Plaintiff also argues that it is entitled to a default judgment against the Defendant Tru in the amount of $51,230 for additional rent through January 2017 for the period that Defendant Tru no longer occupied the premises but failed to tum over possession pursuant to the lease. (Id.) Plaintiff alleges that Defendant Tru failed to pay its rent starting in May 2016, and Plaintiff commenced a non-payment proceeding against Defendant Tru in Civil Court. (Diaz Aff. ~~ 14-17.) Plaintiff alleges that Defendant Tru did not appear in that Civil Court proceeding and was evicted by Civil Court order dated August 16, 2016. (Notte Affirm. i-J 4; Diaz Aff. i-J 14.) Plaintiff states ·that on the date of eviction, Defendant owed $41,033.16 in pre-vacatur base and additional rent. (Id. ii 14.) Plaintiff further alleges that, upon eviction, Defendant Tru failed to leave the premises in "broom clean condition" and failed to return the keys to Plaintiffs managing agent. (Diaz Aff. i-J 15.) Plaintiff further states that the subject premises have not been re-let as of the date of the instant motion. (Id. ii 16.) Plaintiff further alleges that Defendant Shawn Rogers "executed a limited personal guaranty whereby" he assumed "personal liability for [Defendant Tru]'s payments and perfonnance[.]" (Diaz Aff. i-J 12.) Plaintiff originally moved for entry of default judgments as against both .Defendant Tru and Defendant Rogers. Subsequently, Defendant Rogers served an answer on April 26, 2017 (NYSCEF Document No. 50), and pursuant to a stipulation of April 26, 2017 (NYSCEF Document No. 51) the motion for a default . judgment has been withdrawn as against Defendant Rogers. As such, the instant motion seeks entry of a default judgment against only Defendant Tru. (Stipulation of Wit~drawal of April 26, 2017.) Plaintiff alleges that it served Defendant Tru via the New York Secretary of State on August 26, 2016, pursuant to NY LLC Law§ 303. (Notte Affirm. i-J 7; Ex. J [Aff. of Service for Complaint].) Plaintiff further-alleges that it served Defendant Tru with notice! and an additional copy of the summons and complaint, pursuant to CPLR 3215 (g) on September 22, 2016. (Notte Affirm. i-J 8; Ex. K [Aff. of Service for CPLR 3215 Notice].) Plaintiff further alleges that it served Defendant Tru with copies of the instant motionpapers via regular mail pursuant to CPLR 2103. Page 2 of 4 2 of 4 [*FILED: NEW YORK COUNTY CLERK 06/16/2017 11:00 AM 3] NYSCEF DOC. NO. 73 INDEX NO. 156875/2016 RECEIVED NYSCEF: 06/16/2017 DISCUSSION CPLR 3215 (a) provides, in_ pertinerttpart, that "[w]hen a defendant has failed to appear, plead or proceed to trial ... , the plaintiff may seek a default judgment against him." On a motion for a default Judgment under CPLR 3215 based upon a failure to answer the complaint, the plaintiff demonstrates its entitlement to a default judgment against the defendant by submitting: ( 1) proof of service of the summons and complaint, (2) proof of the facts constituting its claim, and (3) proof of the defendant's default in answering or appearing. (See CPLR 3215 [t]; Matone v Sycamore Realty Corp.,50 AD3d 978 [2d Dept 2008]; Allstate Ins. CO. v Austin, 48 AD3d 720 [2d Dept 2008]; see also Liberty County Mut. v Avenue I Med., P.C., 129 AD3d 783 [2d Dept 2015].) On the instant motion, Plaintiff presents proof of adequate service of: ( 1) the summons and complaint on Defendant Tru pursuant to NY LLC Law§ 303; (2) notice and an additional copy of the summons and complaint pursuant to CPLR 3215 (g); and (3) the instant motion pursuant to CPLR 2103. Plaintiff further presents a prima facie case of breach of the terms of the lease by Defendant Tru sufficient to entitle Plaintiff to entry of a default judgment as against Defendant Tru. As of the date of this decision, Defendant Tru has not appeared. Page 3 of4 3 of 4 [*FILED: NEW YORK COUNTY CLERK 06/16/2017 11:00 AM 4] NYSCEF DOC. NO. 73 INDEX NO. 156875/2016 RECEIVED NYSCEF: 06/16/2017 CONCLUSION Accordingly, it is hereby ORDERED that Plaintiff 274 Madison Company LLC's motion for entry of a default judgment, pursuant to CPLR 3215, is granted as against Defendant Tru Legacy Partners, LLC only, without opposition submitted; and it is further ORDERED that the Clerk is directed to enter judgment in favor of Plaintiff 274 Madison Company LLC on the issue ofliability only as against Defendant Tru Legacy Partners, LLC only; and it is further ORDERED that counsel for all parties shall appear before this Court for a preliminary conference on Tuesday, September 19, 2017 at 9:30 a.m.; and it is further ORDERED that an assessment of damages as against Defendant Tru Legacy Pai1ners, LLC is held in abeyance and shall occur at the time of trial or other dispositive determination. This constitutes the Decision and Order of the Court. 'f , Dated: June f 2017 New York, New York 1. Check one: ................................ .. 2. Check if appropriate: .......,. MOTION IS: .s.c. ON. ROBERT D. KALISH ~---~~..,,,e;...-• DcASE DISPOSED D GRANTED D DENIED 3. Check if appropriate: ..................... . D SETILE ORDER D DO NOT.POST D Page 4 of 4 4 of 4 181 NON-F1NiL~1~os1T10N 181 GRANTED IN PART D OTHER D SUBMIT ORDER FIDUCIARY APPOINTMENT D REFERENCE

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