Zobe, LLC v Lance Brown Assoc., Inc.

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Zobe, LLC v Lance Brown Assoc., Inc. 2013 NY Slip Op 30055(U) January 9, 2013 Sup Ct, New York County Docket Number: 603865/09 Judge: Eileen A. Rakower Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] Justice Index Nurnber 60336512009 ZOBE, LLC INDEX NO. v5. MOTION DATE - LANCE BROWN ASSOCIATES, INC. SEQUENCE NUMBER 003 MOTION SEQ. NO. SUMMARY JUUGMEN'T , were read on this motion tolfor The following papers, numbered Ito Notice of MotionlOrder to Show Cause Answering Affidavits - - Affidavits - Exhibits IW s ) . IW s ) . I Wd. - Exhibits Replying Affidavits Upon the foregoing papers, if is ordered that this motion is t I FILED i JAN 15 2G13 ! I U 5 NEW YORK ~ U N l CLERKS Y Y. Dated: .... I 1. CHECK ONE: ..................................................................... F~NBN-FINAL DISPOSITION CASE DISPOSED . ........................... WT~ON is: [G~~~~ I ,=E II nCEN~ED 3. CHECK OF APPROPRIATE: ................................................ L. 1 SETTLE ORDER m 2. CHEGK AS APPKPF~~A~E: -- A I-rF I _1 DO NOT POST 0GRANTED IN PART L- nOTHER SiJBMiT ORDER ci FIDUC! 4XY APPOiN'TMvlEhi i? REFERENCE [* 2] ZORE, LJL , Inctcx No. 603865/09 Plaint i ff, - against - DECISION and ORIIEK Mot Seq. 3.\. FfTn 1,ANCE BROWN ASSOCIATES, TNC., I HOM and L,EE PKZUBSZEWSKI, - 1 1i t Zobe, 1,LC ( Plaintiff 7 commencccl this action for relit due and owing under a lease for premises known as Store 908, 908 Wheeler Road, I-lauppaugc, NY of the Atrium Shopping Plaza ( the Premises ), According to the complaint, Lance Brown Associates Tnc is 3 corporation which entered into a lease for the albremcntioiied premises commencing January 1,2005 and terminating December 3 1, 2009. Further, the complaint a1 leges that upon information and belief at some point in time irm 2009 Dcfendants Thomas [Laurita] and Lee [Przybszewski], without obtaining Zohc s written coiiscnt, siibstitutcd theimelves as Tenants in the place and stead of Lance. Thoinas Laurita brings this motion for summary jndgrncnt pursuant to CPLII $32 12 sceking to dismiss all clnims as against hiin. Plaintiff opposcs. TII support of his motion, Tmrita provides: his own affidavit; h i s 2008 and 2009 W-2 Wage and Tax Statements; a written ]case for the Premises a s bctween Zobc, LLC and Lance Brown Associates, Inc. signed by Mark Lewis Brecker, Managcr on behalf o f the landlord, and Marvin Solin, President 011 bclial t of the Tenant; the siiimions and coinplaint; Mr-. Laitrita s Veri Ikd Answer and Counter-claim; and plaintiff s veri ficct answer to the counter- [* 3] c I ai i n I 1,aurita claims he was iiiercly an einployec of Lancc Brown Associates, Tnc, and never. took on the obligations oftlie corporate tenant. The lease giving rise to thc rental obligations clearly binds the corporation a i d not Laurita, and Laurita was neither a signatory to the lease, nor an otlf-icer I) f the corporation. Plaintiff, in support of its opposition, providcs an attorney affidavit, the affidavit o f Tsaac Pollalc, sole member of %()be, LLC, and Laurita s Response to Sccoiid Set o f Interrogatories. Pollak states that lie visited the premises, and that: During the last third of 2009 on two or three occasions the original person we dealt with for years, Marvin Solin, was no longer present. From the inception of Zobe s ownership and operation of the shopping center, Defendant Thomas Laurita was present [ a i d laboring, and playing with thc dog]. However, prior to those two or three visits Defkndant Lee Przybsxcwski had iiot been sceii by either myself nor my manager. But on those two or three occasions thcy were both present, operating the business, and confessed to LIS that [words to the effect] the new guard has taken over . Plaintiff claims that as the individual defendants were conducting busiiiess at the premises, they substituted themselves as Tenants in the place and stead oi Lancc. Tlic proponent of a motion for sutniiiary judgnien t must ninke a priina facie showing of entitlement to Judgment as a matter of law. That party iiiiisl pi-oducc sufkiicient evidence in admissible form to eliminate m y material issue of fact li-om the case, Whcre the proponcnt makes such a showing, the burden shifts to thc party opposing the motion to dcnionstratc by admissible cvidencc 2 [* 4] that a factual issuc remains requiring the trier o f fact to determine tlie issue. See Zuckermrn v. City o, f N ~ ~ v 49 N.Y.2d 557 ( I9SO). * York, The provisions coiitaitiecl in contracts establish thc rights of the parties and pi-evaiI over conclusory a! Icgations of the complaint. (805 Third Ave. Co. v. M. M . l<cn/tv Associates, 58 N.Y. 2d 447, 45 1 [1983]). When interpreting contracts, the Courts have repeatedly appl icd the familiar. and etiiinently sensible proposition of law [I that, when parties set down their agreemcnt in a clear, coinplctc document, their writing should ....be cnforced according to its terms. (Vermont Teddy Benr- v. 538 Mudison Kcalfy Compmy, 1 N.Y. 3d 470, 475 [2004])(citations omitted). 14ie Courts have also emphasized this riilc s special import in thc context of real property transactions, where commercial certainty is a paramount concern, and where ... tlie instruincnt was negotiated bet ween soph i sti catcd, counseled business peopl c ncgotiat ing at arm s 1cngth. (M.1 (citation s om i tted) . Laurita provides the lease which demonstrates that the obligation to pay rent belonged to Lance Brow11Associates, Tnc. Indeed, the lease provides that a failure to pay the rent will result in dispossess proceedings. Further, the leasc providcs that Tenant shall have the right to assign the lease only with the I ,andlord s prior written consent. If the lease is assigned, it provides that the assigncc shall assume in writing all the terms, covenants and conditions ofthis lease; and (3) an executed and acknowledged copy of the assignment and assumption agreement shall be furnished to the Landlord within tcn ( I 0) date [sic] from the date thereof. Finally, the lease provides that Tenant may not SLIb I ct . Although the lancllord claims the individual dcfciidants took possession ol the preimiscs and ran the business tlierejl-om, therc is no evidence of an assignment c) Tthe obligation to pay rent pursuant to the leasc, nor any claimed ag rc e 111c n t w11 ere by t 1 e in d i v i d 1 a I defendants u n d crt o ok tlia t o b I igat i on . 1 0 1 the extent their possession of the prcmises, if there was n posscssioii of the prcinises by the individual defenclaiits (which they deny), constitutes a violation of thc tcrins ofthe lcasc, such breach is that ofthe party to the lease, namely, Lance Hr-own Associates, Ti~c. [* 5] While FlaintiJ'I'opposes thc iiwtion for suinmary judgment by claiming there exist issues of fact, h e issues plaintiff points to go to the question of w h ~ t h e Lance Brown Associates, Inc. assigtied or sublct or gavc possession r of' the premises to thc individual defendants. 'l'liere is 110 evidence demonstrating that thc individual dcfctidmts agreed to 01- accepted obligatiolis uncier the lease. Wherefore. thc inovatit has cstablishcd a p r i m f'acie showing of entitlement to swnmtlry judgmcnt, and plaintif'f'has fiiiled to present evidence in admissible Ibr-IN raise issues of fact rebutting that showing. to Wherefbre, it is hereby ORIIEXED that the defendant Thomas Laurita's motion for summary judgment is granted and the complaint is hereby severed and dismissed as against Thomas Laurita, and the clerk is directed to cnter judgment in hvor o f said deliidant; and it is further ORDERED that the rcmaindcr of the action will continue. This coiistitiites the decision and order of thc court. t DATED: Jan COUNTYCLERK'S OFFICE 4

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