Royal Equities Operating, LLC v Rubin
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Royal Equities Operating, LLC v Rubin 2016 NY Slip Op 32438(U) December 12, 2016 Supreme Court, New York County Docket Number: 653201/2016 Judge: Debra A. James 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 12/13/2016 12:18 PM 1] INDEX NO. 653201/2016 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/13/2016 SUPREME COURT OF THE STATE OF NEW YORK- NEW YORK COUNTY PRESENT: PART 59 DEBRA A. JAMES Justice Index No.: ROYAL EQUITIES OPERATING, LLC, Plaintiff, 653201/2016 Motion Date: 11/15/2016 Motion Seq. No.: _ _.; 0:; . . ;1____ -vJOSHUA D. RUBIN and EVAN S. ORENSTEN, Defendants. The following papers, numbered 1 to 3 were read on this motion for summary judgment in lieu of complaint. PAPERS NUMBERED "' .. z 0 w "' ocC _w ~ 0:: z o;c "' ::> C) .., ~o c ..J w ..J 0:: 0:: 0 II. WW II.% w~ Notice of Motion/Order to Show Cause -Affidavits -Exhibits 1 Answering Affidavits - Exhibits 2 Replying Affidavits - Exhibits 3 Cross-Motion: D Yes II No Upon the foregoing papers, The court shall grant plaintiff's motion for summary judgment in lieu of complaint to the extent of liability. The defendants each signed an instrument whereby each 0:: 0:: ~o ::> ..J II. II. ~ "absolutely, irrevocably and unconditionally" guaranteed to plaintiff Landlord payment of "all rent and additional rent"· 0 w Q. w "' 0:: "' w "' 5:? under the seven year lease between Capitan Lucas Inc. and plaintiff dated as of May 15, 2014 (Lease), and plaintiff brings this action for breach of such guarantees by defendants. The c( z 0 t:= court determines that this action "is based upon an instrument 0 ~ Check One: D Check if appropriate: FINAL DISPOSITION D DONOTPOST 1 of 4 II NON-FINAL DISPOSITION D REFERENCE [* 2] for the payment of money only" pursuant to CPLR 3213 and that the other requirements of the statute have been met. Further, On a motion for summary judgment to enforce a written guarantee, all that the creditor need prove is an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty (BNF Financial Corp. V Clare, 172 A.D.2d 203, ... ;Chemical Bank v Geronimo Auto Parts Corp., 225 A.D.2d 461 ... ). City of New York v Clarose Cinema Corp., 256 A.D.2d 69 (1st Dept 1998). Defendants argue that the there is no underlying debt because non-party Capitan Lucas Inc. paid all rent and additional rent under the Lease through March 2016 to plaintiff, and as of May 15, 2016, without obtaining a judgment of possession and warrant of eviction, plaintiff re-let the premises to a third party known as Breya, which gave non-party Capitan Lucas Inc. permission to say in possession of the premises. Defendants contend that plaintiff, therefore, improperly accelerated the balance due under the Lease, and that their obligations are limited to payment of March and April 2016 rent and additional rent. Defendants' arguments lack merit. Defendants' contention that plaintiff improperly accelerated the rent under the Lease when plaintiff re-let the premises to a third party fails because defendants concede that non party Capitan Lucas, Inc. is still in possession and has neither -2- 2 of 4 [* 3] surrendered nor delivered possession of the premises to plaintiff. See Fifty States Management Corporation v Pioneer Auto Parks, Inc., 46 NY2d 573 (1979). In any event, plaintiff is correct that under each absolute, irrevocable, unconditional guarantee, which is an agreement separate and distinct from the Lease, the defendants waived their right to interpose any defenses. v Hong Mei Cheung, 137 AD3d 478 See 1 Bldg, Inc. (1st Dept 2016). Likewise, as argued by plaintiff, by its plain terms each guarantee states that the guarantor "shall not be entitled to an offset against the [guarantor's] obligations under this Guaranty for any security which was deposited with the Landlord." Accordingly, it is ORDERED that it appearing that plaintiff is entitled to judgment on liability and the only triable issues of fact arising on plaintiff's motion for summary judgment in lieu of complaint relate to the amount of damages, including rent, additional rent, late charges, interest and reasonable attorneys fees, to which plaintiff is entitled; and it is further ORDERED that an immediate trial of the aforesaid issues of fact shall be had before the court; and it is further ORDERED that plaintiff shall, within 20 days from entry of this order, serve a copy of this order with notice of entry upon counsel for all parties hereto and upon the Clerk of the Trial -3- 3 of 4 [* 4] Support Office (Room 158) and shall serve and file with such Clerk a note of issue and statement of readiness and shall pay the fee therefor, and such Clerk shall cause the matter to be place upon the calendar for such trial. This is the decision and order of the court. Dated: December 12, 2016 ENTER: ,.""' UcCJRA A. JAMES -4- -- ·-· . _,- .;. -- 4 of 4 J:.c.
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