Walber 419 Co., LLC v 419 KD Prod. Assoc., Inc.

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Walber 419 Co., LLC v 419 KD Prod. Assoc., Inc. 2019 NY Slip Op 32277(U) July 30, 2019 Supreme Court, New York County Docket Number: 159607/2018 Judge: Barbara Jaffe Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*[FILED: 1] NEW YORK COUNTY CLERK 07/30/2019 05:22 P~ NYSCEF DOC. NO. 19 INDEX NO. 159607/2018 RECEIVED NYSCEF: 07/30/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. BARBARA JAFFE IAS MOTION 12EFM Justice ----------------------------------------------------------------- ----------------X WALBER419 COMPANY, LLC AND 419 PARK A VENUE SOUTH ASSOCIATES, LLC AS TENANTS-IN-COMMON, INDEX NO. 159607/2018 MOTION DATE MOTION SEQ. NO. 001 Plaintiff, -v419 KD PRODUCTION ASSOCIATES, INC., et al., DECISION + ORDER ON MOTION Defendants. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 5-18 summary judgment were read on this motion for By notice of motion, submitted on default, plaintiffs move for orders: (1) dismissing defendants' affirmative defenses and granting plaintiffs summary judgment; (2) entering a money judgment against defendants for rent and additional rent from February 1, 2018 to August 31, 2018; (3) entering a money judgment against defendant Kettle; and (3) awarding plaintiff attorney fees. In October 2018, plaintiffs sued defendants for rent and additional rent from February 1, 2018 to the date of their eviction from the subject premises on August 31, 2018, and sought that amount as a judgment against the guarantor of the parties' lease, Kettle, and against defendant tenant 419 KD Production Associates, Inc. (NYSCEF 1). By answer dated November 16, 2018, defendants denied plaintiffs' allegations and asserted as affirmative defenses that plaintiffs' claims are barred due to (1) their breach of the duty of good faith and fair dealing, (2) their unclean hands, (3) the fact that the guaranty was neither witnessed nor notarized and did not Page 1 of4 159607/2018 Motion No. 001 1 of 4 [*[FILED: 2] NEW YORK COUNTY CLERK 07/30/2019 05:22 NYSCEF DOC. NO. 19 INDEX NO. 159607/2018 P~ RECEIVED NYSCEF: 07/30/2019 create a binding contract, (4) their breach of the agreement, causing it to be rescinded; (5) their having been paid as agreed, ( 6) their failure to mitigate damages, and ( 6) the absence of documentation supporting the claimed amount. (NYSCEF 4). In support of their motion, plaintiffs submit the affidavit of their managing agent who confirms the allegations set forth in the complaint and submits relevant documents, including the lease and modification/extension agreements and Kettle's notarized guaranty. He explains that after defendants defaulted in paying rent in 2017, plaintiffs commenced a non-payment proceeding against them, which was resolved by a stipulation dated January 23, 2018, in which defendants agreed to pay $86,079.99 as rent and additional rent due through January 2018 in monthly payments beginning in February 2018. (NYSCEF 12). Defendants never made the payments, nor did they pay accruing rent, and thus the warrant of eviction was executed on April 11, 2018, although the lease was due to end on August 31, 2018. (NYSCEF 6). Plaintiffs thereby establish, prima facie, that defendants owe them rent and additional rent through August 31, 2018, and that Kettle as guarantor is personally liable for those amounts. Pursuant to the parties' lease, defendants are also liable for plaintiffs' attorney fees and costs. Defendants' conclusory and unsupported affirmative defenses are insufficient to raise a triable issue. (See e.g., US. Bank Ntl. Assn. v Ahmed, AD3d , 2019 NY Slip Op 05577 [2d Dept 2019] [affirmative defenses, which were conclusory and bereft of factual allegations, should have been dismissed on plaintiffs motion for summary judgment]). Moreover, the guaranty signed by Kettle is notarized. Accordingly, it is hereby ORDERED, that plaintiffs' motion for summary judgment is granted as follows: A money judgment is granted to plaintiffs as against defendants, jointly and severally, in 159607/2018 Motion No. 001 Page 2 of 4 2 of 4 [*[FILED: 3] NEW YORK COUNTY CLERK 07/30/2019 05:22 PMI NYSCEF DOC. NO. 19 INDEX NO. 159607/2018 RECEIVED NYSCEF: 07/30/2019 the sums of: (a) $86,079.99 as rent and additional rent due through January 2018; (b) $57,658 in rent due from February 1, 2018 to April I I, 2018; and (c) $125,066 in rent and additional rent from April 12, 2018 to August 31, 2018; and plaintiffs are directed to submit a proposed judgment and order within 30 days of the date of this order; it is further ORDERED, that plaintiffs are granted their reasonable attorney fees as against defendants, jointly and severally, and the issue of their reasonable fees is referred to a Special Referee to hear and report; it is further ORDERED, that counsel for plaintiffs shall, within 30 days from the date of this order, serve a copy of this order with notice of entry, together with a completed Information Sheet, 1 upon the Special Referee Clerk in the General Clerk's Office (Room 119), who is directed to place this matter on the calendar of the Special Referee's Part for the earliest convenient date; it is further ORDERED, that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures For Electronically Filed Cases (accessible at the "EFiling" page on the court's website at the address www.nycourts.gov/supctmanh). 7/30/2019 DATE CHECK ONE: N CASE DISPOSED GRANTED APPLICATION: 1 Available D n NON-FINAL DISPOSITION DENIED GRANTED IN PART D OTHER SUBMIT ORDER SETTLE ORDER on the Court's website at www.nycourts.gov/supctmanh under the "References" link on the navigation bar. 159607/2018 Motion No. 001 Page 3 of 4 3 of 4 [*[FILED: 4] NEW YORK COUNTY CLERK 07/30/2019 05:22 NYSCEF DOC. NO. 19 CHECK IF APPROPRIATE: INDEX NO. 159607/2018 P~ RECEIVED NYSCEF: 07/30/2019 D INCLUDES TRANSFER/REASSIGN 159607/2018 Motion No. 001 D FIDUCIARY APPOINTMENT D REFERENCE Page 4 of 4 4 of 4

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