Juste v Niewdach
Annotate this CaseDecided on December 1, 2004
Supreme Court, Kings County
Jerry Juste, Plaintiff,
against
Anna Niewdach, Defendant.
20736/04
David Schmidt, J.
the motion by plaintiff Jerry Juste for summary judgment in lieu of complaint pursuant to CPLR 3213 is granted and the cross motion by defendant Anna Niewdach for an order dismissing the complaint herein pursuant to CPLR 3211 is denied.
On or about May 12, 2003, the parties executed a Guaranty Agreement pursuant to which defendant agreed, among other things, to guarantee to plaintiff "the full performance of the lease or rental agreement by the Tenant", defendant's daughter, Natalya Niewdach. On or about October 1, 2003, the tenant allegedly defaulted on her monthly rent payment. According to plaintiff, the tenant was, pursuant to the lease, responsible for the unpaid balance of the rent for the remainder of the lease term, a total of $10,290. In his motion, [*2]plaintiff argues that the Guaranty Agreement is an instrument for the payment of money only and that "there are no triable issues of fact and no defense to this action."
In her cross motion and in opposition to the motion, defendant asserts that the subject guaranty is not an instrument for the payment of money only because it requires defendant to be responsible for all covenants in the lease, not just the provision regarding the payment of rent. With respect to the rental payments claimed by plaintiff, defendant contends that her daughter's apartment was a basement apartment in an illegal Multiple Dwelling and, therefore, plaintiff is precluded by Multiple Dwelling Law § 302 from collecting rent. Defendant also maintains that there should be a rent abatement because of the "infestation problems" which continued throughout her daughter's tenancy.[FN1]
In reply and in opposition to the cross motion, plaintiff points out that is undisputed that defendant signed the subject guaranty and that her daughter stopped paying rent in October 2003. Plaintiff further asserts that the Guaranty Agreement constitutes an instrument for the payment of money only, notwithstanding that it includes a guarantee of all obligations under a lease. With respect to defendant's alleged defenses to the tenant's obligation to pay rent, plaintiff asserts that the tenant lived in a legal rental unit (even if the building as a whole was an illegal multiple dwelling) and further that such defense (and others) "do not address the real issue in this case, i.e., whether or not the guaranty agreement is an instrument for the payment of money only."
An instrument qualifies for CPLR 3213 treatment if a prima facie case would be made out by the instrument and the failure to make the payments called for by its terms (see Afco Credit Corp. v Boropark Twelfth Ave. Realty Corp., 187 AD2d 634 [1992]). In the case at bar, the Guaranty Agreement is an instrument for the payment of money only upon which a motion pursuant to CPLR 3213 may be brought (see First Interstate Credit Alliance, Inc. v Sokol, 179 AD2d 583 [1992]). The existence of various clauses contained in the agreement in addition to the unconditional promise to pay money does not necessarily disqualify the agreement as an instrument for the payment of money only (see Terminal Marketing Co., Inc. v Murphy, 296 AD2d 399 [2002]).
Plaintiff has established a prima facie case by proof of the existence and genuineness of the instrument and the failure to make payments thereunder (see Seaman-Andwall Corp. v Wright Mach. Corp., 31 AD2d 136, 137 [1968], affd. 29 NY2d 617 [1971]). Defendant has not met her burden of showing the existence of a triable issue of fact with respect to a bona fide defense to the agreement. It is settled that "invocation of defenses based on facts extrinsic to an instrument for the payment of money only do not preclude CPLR 3213 consideration" (Judarl LLC v Cycletech Inc., 246 AD2d 736, 737 [1998]); see also, Alard v Weiss, 1 AD3d 131 [2003]). Since the alleged defenses asserted by defendant do not relate to her obligations under the Guaranty Agreement, summary judgment in favor of plaintiff is [*3]warranted. Accordingly, the motion by plaintiff is granted and the cross motion by defendant is denied.
The foregoing constitutes the decision, order, and judgment of the court.
E N T E R,
J. S. C.
Footnotes
Footnote 1: Defendant submits an affidavit from her daughter regarding the alleged illegal occupancy and breach of warranty of habitability.
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