Reade v El Mundo of Kickerbocker Inc.

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Reade v El Mundo of Kickerbocker Inc. 2013 NY Slip Op 32383(U) September 23, 2013 Sup Ct, New York County Docket Number: 652351/2011 Judge: Charles E. Ramos 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 10/04/2013 1] INDEX NO. 652351/2011 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 10/04/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART 53 PRESENT: Justice Index Number: 652351/2011 DUANE READE INDEX NO. ---'-_ _ __ MOTION DATE _ _ __ vs EL MUNDO OF KNICKERBOCKER INC. MOTION SEQ. NO. _ __ Sequence Number: 005 REARGUE/RECONSIDER The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s).,_ _ _ _ __ I No(s). _ _ _ __ I No(s). _ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Upon the foregoing papers, it is ordered that this motion is w (J ~ .., ~ r· 0·· l- e '" I 0:: _. '0:: ., i , I W· til .0::'- '.-. -I , ¢ ¢ >- ....sa. ...JZ ~o u.. U) I- c( (J W 5; w a:: (!) w z a:::: - (1)3= - 0 W ...J ...J c( 0 (I) (J - u.. o t::: o l0::: Z W :::i!E u.. ~ 0 Dated: W~/13 _ _ _ _+-_ _ _ _ _->J.S.C. CHARLESlE..~AMOS 2. CHECK AS APPROPRIATE: ........................... MOTION IS: o CASE DISPOSED o DENIED 0 GRANTED 3. CHECK IF APPROPRIATE: ................................................ D SETTLE ORDER 1~ CHECK ONE: ....... ,.... ", .. ,.. ,........ 11 ¢ ¢ ¢ ¢ ¢ '''.1 ............................. . OOONOTPOST B1[oN-FINAL DISPOSITION ,EtGRANTED IN PART· D OTHER o SUBMIT ORDER D FIDUCIARY APPOINTMENT o REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION ------------------------------------------x DUANE READE and DUANE READE REALTY, INC., Plaintiff, Index No. 652351/11 -againstEL MUNDO OF KNICKERBOCKER INC., AMERICAN PLACE AT NOSTRAND INC., AMERICAN PLACE AT FOURTH AVENUE INC., 158 ST DISCOUNT CENTER CO. INC d/b/a EL MUNDO STORES, and RAYMOND SROUR, Defendants. --------------------~-----------------------x Hon. Charles E. Ramos, J.S.C.: Plaintiffs Duane Reade and Duane Reade Realty, Inc. (together DR) move, pursuant to CPLR 2221 (d), for leave to reargue those portions of this Court's February 14, 2013 decision and order (Order) which denied their motion for partial summary judgment as to liability against: Knickerbocker, Inc. (a) defendants El Mundo of (El Mundo) and Raymond Srour (as guarantor); and (b) defendants American Place at Nostrand Inc. (Am Place) and Srour (as guarantor). With regard to El Mundo (and Srour), DR argues that this Court overlooked paragraphs 31 and 49 of the affidavit of Chris Darrow, plaintiffs' vice president and comptroller, and paragraph 25 of the reply affidavit of Michael M. Yi, Esq., DR's counsel in this action. Paragraph 49 of Darrow's affidavit states that "[a]s a result of [El Mundo's] default under [its lease assignment. DR] was required to pay to the landlord a total of $550,000." As an [* 3] exhibit to the affidavit, Darrow appended a calculation of rent due that DR's counsel had received from the landlord's attorney. Paragraph 25 of Yi's reply affidavit repeats Darrow's statement and adds that the sum paid to the landlord was in settlement of a civil action that Nathan Cheney, as trustee of the landlord, brought against DR and El Mundo. Paragraph 31 of Darrow's affidavit states that the landlord claimed that he was owed certain sums in rent and additional rent, and certain sums for the seven months after El Mundo vacated its space. DR also argues that this Court overlooked certain documents that were in the record, to wit, a copy of Cheney's complaint against DR and El Mundo, a copy of Cheney's calculation of the rent alleged to be due (referred to above), a copy of the settlement agreement between Cheney and DR, and a copy of the settlement check in the amount of $550,000. It is elementary that a motion for summary judgment must be supported by the submission of evidentiary proof in admissible form (Mirvish v Matt, 75 AD3d 269 [1st Dept 2010]; revd on other grounds 18 NY3d 510 [2012]). None of the documents that DR adduces in support of its motion is admissible evidence of how much rent, if any, was due and owing from El Mundo at the time that DR entered into its settlement with Cheney. A complaint is not probative of the facts alleged therein, a settlement agreement is not probative of such facts as may be stated therein, and an unsworn calculation of a debt allegedly due is not evidence of any such debt. 2 [* 4] As the Order notes, Darrow testified at his deposition that: (a) the $550,000 that DR paid to Cheney constituted payment for the then-remaining term of DR's lease; (b) he had not known that El Mundo had assigned its assignment of lease to an entity that is not a party to this action; and (c) he did not know how much (and, therefore, whether any) of the $550,000 settlement payment was for rent then due and owing. Nowhere in his deposition, or in his affidavit, does Darrow state, either on the basis of his own knowledge, or on the basis of any admissible evidence, that, at the time of the settlement, El Mundo owed the landlord a sum certain in rent. With regard to Am Place (and Srour), DR contends that the Order overlooked paragraph 50 of Darrow's affidavit, which states that Am Place entered into a sublease with DR, rather than an assignment of lease, and which references: an invoice that DR issued to Am Place; payments that DR made to its landlord under the prime lease; and unsworn letters from an attorney to Am Place and Srour stating that they had defaulted under the sublease, and demanding payment. The Order notes that Am Place had entered into a sublease. It does not follow from that fact that an invoice, attorney's letters, or certain payments made by DR under the prime lease entitle DR to judgment as a matter of law that Am Place defaulted under its sublease. In sum, DR appears to believe that it is entitled to partial summary judgment against El Mundo, Am Place, and Srour as a 3 [* 5] matter of law, because it submitted documents that, if introduced in evidence at trial, might persuade a jury that DR should prevail on its claims against those defendants. That is not the law. Accordingly, it is hereby ORDERED that the motion for leave to reargue is granted and that, upon reargument, this Court adheres to its prior decision. Dated: September 23, 2013 Enter: J.S.C. CHARLES E. RAMOS 4

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