Shawkat v Malak

[*1] Shawkat v Malak 2015 NY Slip Op 51748(U) Decided on November 30, 2015 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 30, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-434 RI C

Mohamed Shawkat, Appellant,

against

Amiel R. Malak, Malak Malak, Mena Malak and Rezk Malak, Respondents, -and- New Delta, Inc., Defendant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered January 6, 2014. The order granted the motion by defendants Amiel R. Malak, Malak Malak, Mena Malak, and Rezk Malak for leave to reargue so much of a prior motion as sought summary judgment dismissing so much of the complaint as was asserted against them and, upon reargument, granted that portion of the prior motion.

ORDERED that the order is reversed, without costs, and the motion by defendants Amiel R. Malak, Malak Malak, Mena Malak, and Rezk Malak for leave to reargue and, upon reargument, for summary judgment dismissing so much of the complaint as was asserted against them is denied.

In this action against Amiel R. Malak, Malak Malak, Mena Malak, Rezk Malak and New Delta, Inc., to recover unpaid rent and damages based on an oral lease, the individual defendants ("the Malak defendants"), moved for summary judgment dismissing so much of the complaint as was asserted against them, on the ground that they were not parties to the oral agreement between plaintiff and defendant New Delta, Inc. By order dated December 2, 2013, the Civil Court, among other things, denied the motion, finding that triable issues of fact precluded summary judgment. The Malak defendants subsequently moved for leave to reargue their motion for summary judgment, arguing that the court had misapprehended or overlooked certain facts. By order entered January 6, 2014, the Civil Court granted reargument and, upon reargument, granted the Malak defendants' motion for summary judgment.

In granting leave to reargue, the Civil Court relied upon statements in the record that do not support its determination. For example, while plaintiff did assert in his supplemental bill of particulars that defendant Amiel R. Malak was "the primary spokesperson for the Defendants," one of the facts which the Malak defendants had alleged the court had misapprehended or overlooked, he first stated that "[t]he persons acting for the Defendants were all of the above named Defendants who represented themselves as a family, i.e. father and brothers." This was clearly not an admission on plaintiff's part that his agreement was solely with defendant New Delta, Inc. and not with the Malak defendants. Thus, the Malak defendants did not provide a [*2]sufficient basis upon which to grant leave to reargue so much of their prior motion seeking summary judgment dismissing so much of the complaint as was asserted against them.

In any event, summary judgment is not warranted in this case. "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The record includes allegations by defendant Amiel R. Malak that he had negotiated with plaintiff for the use of plaintiff's property, that it was clear that he was negotiating on behalf of defendant New Delta, Inc. and not in his individual capacity, and that none of the Malak defendants had entered into an agreement with plaintiff in their individual capacity. With respect to defendants Malak Malak, Mena Malak and Rezk Malak, this conclusory statement is insufficient to meet their burden of demonstrating that they are not parties to an oral lease agreement with plaintiff. Even assuming Amiel R. Malak's statement was sufficient to demonstrate, prima facie, that he did not enter into a lease with plaintiff on his own behalf, plaintiff raised a triable issue of fact precluding summary judgment. It is noted that the record includes allegations by plaintiff that he had spoken with each of the Malak defendants about the deal, and that all of the Malak defendants had paid rent and used the premises.

Accordingly, the order is reversed and the motion by the Malak defendants for leave to reargue and, upon reargument, for summary judgment dismissing so much of the complaint as was asserted against them is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 30, 2015