124 E36 St. NYC, LLC v Shan Ai Piao

124 E36 St. NYC, LLC v Shan Ai Piao 2022 NY Slip Op 05780 Decided on October 18, 2022 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 18, 2022
Before: Manzanet-Daniels, J.P., Mazzarelli, Oing, Kennedy, Mendez, JJ.
Index No. 655392/20 Appeal No. 16452 Case No. 2022-00225

[*1]124 E36 Street NYC, LLC, Plaintiff-Appellant,

v

Shan Ai Piao, Defendant, Sang Taek Lim, Defendant-Respondent.

O'Rourke & Degen, PLLC, New York (Ronald D. Degen of counsel), for appellant.

Law Office of Robert W. Napoles, Astoria (Robert W. Napoles of counsel), for respondent.

Order, Supreme Court, New York County (Ellen Gesmer, J.) entered on or about June 28, 2021, which granted the motion of defendant Sang Taek Lim to dismiss the complaint against him, unanimously modified, on the law, the motion is denied without prejudice with leave to renew after the conclusion of jurisdictional discovery, which is hereby ordered, and otherwise affirmed, without costs.

For the purposes of establishing personal jurisdiction in opposition to the motion to dismiss under CPLR 3211(a)(8), Lim's notarized signature on the lease guaranty was a "sufficient start" to plaintiff's showing that its position was not frivolous and that facts may exist to exercise personal jurisdiction over defendant (Lettieri v Cushing, 80 AD3d 574, 575 [2d Dept 2011]). The factual dispute as to whether Lim signed the lease guaranty implicates two questions: first, personal jurisdiction over Lim, and second, the underlying cause of action seeking to enforce the guaranty against him. Accordingly, jurisdictional discovery is appropriate (see Radium2 Capital, LLC v Xtreme Natl. Maintenance Corp., 202 AD3d 638, 639 [1st Dept 2022]; Seaboard Sur. Co. v Earthline Corp., 262 AD2d 253, 253 [1st Dept 1999]).

To the extent plaintiff relies on facts and documents outside the record, those facts are not properly before us and may not be raised for the first time on appeal, as they do not raise purely legal arguments (see 27 W. 72nd St. Note Buyer LLC v Terzi, 194 AD3d 630, 631 [1st Dept 2021] lv denied, 37 NY3d 913 [2021]).

As to plaintiff's constitutional challenge to Administrative Code of the City of New York § 22-1005, which bars the enforcement of certain lease guaranties for defaults that occurred during the height of the COVID-19 pandemic, the parties will have the opportunity to develop the record as to constitutionality following the motion court's determination of its jurisdiction over Lim (see Melendez v City of New York, 16 F4th 992, 1010, 1016 [2d Cir 2021]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 18, 2022