IG Second Generation Partners, L.P. v LaMotta

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IG Second Generation Partners, L.P. v LaMotta 2013 NY Slip Op 33711(U) December 19, 2013 Sup Ct, New York County Docket Number: 114175/2011 Judge: Paul Wooten 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. [* 1] SCANNED ON 12/27/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PAUL WOOTEN J.S.C. PART_7,__ Justice IG SECOND GENERATION PARTNERS, LP., INDEX NO. 114175/2011 Plaintiff, - against - MOTION SEQ. NO. FRANCO LA MOTTA a/k/a FRANCESCO LJf MOTTA, a/k/a FRANK LA MOTA, 003 I LE D DEC 2 0 20·13 Defendant. ~~~~~~~~~~~~~~--nEWVORK r'1"\l IMTV r.1 s:~ OFFICE The following papers, numbered 1 to _ _ , were read on "rfl'l§'M~fion "Tor__ - _ _ _ _ _ _ _ __ .. .. Answering Affidavits- Exhibits - - - - - - - - - - - - - I No(s). - - - - - 1No(s). _ _ _ _ __ Replying Affidavits - I No(s). - - - - - - Notice of Motion/Order to Show Cause - Affidavits - Exhibits _ _ _ __ LLJ (.) j:: Exhibits Cl) :::> .., Cross-Motion: g c D Yes ¢ No w 0:: In this action, IG Second Generation Partners (plaintiff), fr landlord, is seeking to recover w w $641,705.98, plus statutory interest from the defendant Frank La Motta (La Motta), sole officer, director 0:: u. 0:: ¢ ¢ >-~ z ..J ..J and shareholder for a tenant, Cafe Amore of New York Restaurant Inc (Cate Amore) on the basis that =>O u. U) I- <( (.) w La Motta signed an individual guaranty for a commercial lease between plaintiff's predecessor in 3> C> wz interest and Cafe Amore, which Cafe Amore breached. The amount plaintiff is seeking includes, inter w 0:: ex: - U);:: -0 w ..J Cl) ..J 0 (.) u. a/ia, past due rent, property taxes, water and sewer charges and late fees. Plaintiff had earlier <( -w z :I: 0 i= received a judgement of eviction and monies for past due base rent, property taxes, water and sewer I- 0:: Oo :Eu. charges against Cafe Amore in the amount of$ 251,410.22 in a summary proceeding in the New York Civil Court (see IG Second Generation Partners v Cafe Amore of New York Restaurant Inc., L & T Index no. 81109/2009). However, plaintiff has yet to collect its debt from Cafe Amore, which was Page 1 of 4 [* 2] unsuccessful in discharging the debt before the United .states Bankruptcy Court (see plaintiff's exhibit 12, Cafe Amore of New York Restaurant Inc., USBC Order, Case no. 11-13705-SMB). Before the Court is a motion by plaintiff's for summary judgment on its complaint and to strike /- La Motta's affirmative defenses and counterclaims. Plaintiff asserts that its predecessor and La Motta's company entered into a commercial lease, and that La Motta personally guaranteed all the obligations due to the owner and the landlord pursuant to the terms of the lease. According to the plaintiff, La Motta's company breached the lease, and as such, he is personally liable for damages for such breach. La Motta files in opposition alleging, inter alia, triable issues of fact exist based upon false testimony in the summary Civil Court proceeding, and on the grounds that plaintiff is not a party to the lease signed by Cafe Amore, and so plaintiff cannot as a matter of law recover against him under the terms of the lease. Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Andre v Pomeroy, 35 NY2d 361, 364 [197 4]). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Santiago v Fi/stein, 35 AD3d 184, 185-186 [1st Dept 2006], quoting Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; CPLR 3212 [b]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v AJI Indus., Inc., 1O NY3d 733, 735 [2008]). Once a prima facie showing has been made, however, "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for .resolution" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006]; DeRosa v City of New York, 30 AD3d 323, 325 [1st Dept 2006]; Giuffrida v Citibank Corp., 100 NY2d /- 72, 81 [2003]). Page 2 of 4 [* 3] When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v Stop & Shop, Inc., 65 NY2d 625, 626 [1985)). If there is any aoubfas to the existence of a triable issue, summary judgment should be denied (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). In support of its motion, plaintiff submits, inter alia, certificate of incorporation records from the New York State Department of State, the lease agreement, the guarantor agreement, business records, New York City property tax and water meter records, records from the summary proceeding seeking eviction form the New York Civil Court and the United State Bankruptcy Court records. After /- reviewing the record and in viewing the documentary evidence submitted in the light most favorable to La Motta, and affording the defendant the benefit of all reasonable inferences that can be drawn from the evidence, the Court finds that plaintiff has met its prima facie burden to establish its entitlement to summary judgmP.nt in thA ~mo11nt nf $ 604,705 98, and for an order striking La Motta's affirmative defenses and counterclaims, which the Court finds have no merit. CONCLUSION For these reasons and upon the foregoing papers, it is, ORDERED that plaintiff's motion for summary judgment for an order striking La Motta's affirmative defenses and counterclaims is granted; and it is further, ORDERED that plaintiff's motion seeking summary judgment is granted and plaintiff is hereby granted judgment on its complaint against defendant FRANCO LA MOTTA a/k/a FRANCESCO LA MOTTA, a/k/a FRANK LA MOTA, in the amount of $604,705.98, with interest at the statutory rate from the date of December 16, 2011 until the entry of judgment, as calculated by the Clerk of the Court, together with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill Page 3 of 4 [* 4] of costs; and it is further, ORDERED that plaintiff shall serve a copy of this order, with Notice of Entry, upon defendant and upon the Clerk of the Court who is directed to enter judgment accordingly. This constitutes the Decision and Order of the Court . ./ Dated: ,ilfi!-::;; ---'-{_z_,.,f~(q /_,f_~3__ __ I I J.S.C . 1. Check one: ................................................................ ¢ ¢ GRANTED 3. Check if appropriate: ................................................ D SETTLE ORDER D NON-FINAL DISPOSITION CASE DISPOSED 2. Check if appropriate: ............................ MOTION IS: D D DO NOT POST DENIED D GRANTED IN PART D SUBMIT ORDER OTHER D FIDUCIARY APPOINTMENT D REFERENCE DEC 2 0 2013 cou~EW YORK CLERKS OFFJt;e Page 4 of 4 D I J

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