100-106 LLC v Cafe Water Inc.

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100-106 LLC v Cafe Water Inc. 2020 NY Slip Op 33041(U) September 15, 2020 Supreme Court, New York County Docket Number: 154944/2019 Judge: Debra A. James 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 09/16/2020 11:57 AM NYSCEF DOC. NO. 34 INDEX NO. 154944/2019 RECEIVED NYSCEF: 09/16/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DEBRA A. JAMES lAS MOTION 59EFM Justice ------------------------------------------------------------------------- X 154944/2019 INDEX NO. 100-106 LLC, 03/11/2020 MOTION DATE Plaintiff, MOTION SEQ. NO. 002 - vDECISION + ORDER ON MOTION CAFE WATER INC. and HYON YI, Defendants. ------------------- __________ ~ X The following e-filed documents, listed by NYSCEF document number (Motion 002) 16, 17, 18, 19,20, 23,24,25,26,27,30,31 JUDGMENT-SUMMARY were read on this motion to/for ORDER Upon the foregoing ORDERED denied; documents, that defendants' it is hereby cross motion for discovery is .and It appearing judgment arising amount on to the court liability and that on plaintiff's of damages ORDERED motion that the only for summary to which plaintiff that the motion plaintiff triable entitled issues judgment is entitled, is granted is of relate to fact to the it is with regard to liability; and it is further ORDERED had before the court; ORDERED this order, that a trial of the issues regarding that damages shall be and it is further plaintiff shall, within 20 days serve a copy of this order with notice from entry of entry upon Page 1 of 13 154944/2019 100-106 LLC vs: CAFE WATER INC. Motion No. 002 1 of 13 of [*FILED: 2] NEW YORK COUNTY CLERK 09/16/2020 11:57 AM INDEX NO. 154944/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 09/16/2020 counsel for all parties Clerk's Office (60 Centre file with such Clerk and pay shall matter the 119) and of the General shall and statement and such the calendar Clerk serve and of readiness shall for such trial cause the before the and it is further shall be made such service in accordance on Electronically the court's upon Room of issue fee therefor, ORDEREI:2,that Protocol and upon the Clerk Street, a note to be placed undersigned; hereto upon the with the procedures County Courthouse and Filed (accessible website Cases General Clerk's Office set forth in the for Procedures Clerk at the "E-Filing" page on at the address www.nycourts.gov/supctmanh). DECISION In this motion plaintiff 100-106 first through defendants Yi belated cross motion Nn Doc. No. 16), from the answer (Tenant) and its president (b), and granting to CPLR 3212. Defendants the of Hyon S. plaintiff filed a (NYSCEF Doc. No. 23) for an order directing stated below, motion discovery defendants' in this action. cross motion For the shall be denied, shall be granted. 100-106 LLC vs. CAFE WATER INC. nn, defenses to CPLR 3211 pursuant to conduct and plaintiff's Mntlnn Inc. pursuant judgment 154944/2019 affirmative Cafe Water, summary reasons 002; NYSCEF LLC seeks an order of the court striking eleventh (Guarantor) the parties (sequence number 2 of 13 Page 2 of 13 [*FILED: 3] NEW YORK COUNTY CLERK 09/16/2020 11:57 AM INDEX NO. 154944/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 09/16/2020 Background and Procedural The following derived primarily Doc. NO.1) support allegations, 519-521 unless from plaintiff's and the affirmation of the instant motion Plaintiff Sixth Avenue, June 10, 2016 predecessor "Modification of Lease,u the so-called "Original Additional Guarantor Landlord for the unamortized any other liabilityU By petition nonpayment the Civil Court, 154944/2019 100-106 LLC Motion No. 002 VS. (id., ~ 5) to (id., ~~ 6-8). by the the obligations of under the Lease, fails to pay "Fixed Rent, set forth in the Lease,u and "shall be liable cost of the Lease to the in addition to (id., ~~ 9-11). dated January proceeding at (the among other things, assumed that in the event Tenant shall pay such amounts, located as assignee, to the Lease, as amended Rent, or other charges in of lease dated from plaintiff Guarantorsu NYSCEF ~ 4). rent to plaintiff Guarantor are Doc. No. 17). Fine Food Corp. and Tenant, Tenant was obligated, pay fixed rent and additional guaranteeing (Complaint, Jackies as assignor, to the "RiderU counsel of the building and assumption leased the subject premises Pursuant (Complaint; of plaintiff's New York City (Lease) between Under the Lease, indicated, (Plf. Aff.; NYSCEF to an assignment tenant), otherwise complaint is the owner and landlord Pursuant Tenant History against 15, 2019, Plaintiff Tenant New York County, commenced in the non-housing and the amount a part of sued for was Page 3 of 13 CAFE WATER INC. 3 of 13 [*FILED: 4] NEW YORK COUNTY CLERK 09/16/2020 11:57 AM NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 09/16/2020 $62,570.31 31, 2019 of unpaid rent and additional (id., ~ 12). possession 13). "Various the amount Plaintiff along with a warrant 2019, the warrant was executed defendants against Tenant amount of $181,281.13; Tenant and Guarantor, determined Lease" rent" have accrued 19, (id., ~ since, and (id., ~ 12) commenced the instant in this court, and the Complaint first and second (breach of and Guarantor, respectively) third and fourth (attorneys' in an amount by the court; and fifth ("unamortized Guarantor) of and Tenant was evicted respectively) against January and on March due as of May 31, 2019 was $181,281.13 five ca~uses of action: contract a judgment of eviction, rent and additional against asserts rent through obtained On or about May 15, 2019, plaintiff action INDEX NO. 154944/2019 in the amount in the fees against to be cost of the of $131,277.79 (id., ~~ 17-40). Defendants Complaint (sequence number affirmation decision denied dated October the motion answer" 8, 2019 to dismiss, Pursuant 154944/2019 100-106 LLC VS. CAFE WATER INC. Doc. No.4) the along with an (NYSCEF Doc. No.5). and defendants within 7, 2019, defendants (id., ~ 12). to dismiss By (NYSCEF Doc. No. 12), this court to the Complaint On November motion 1; NYSCEF of .counsel in support serve an answer 11). filed a pre-answer were ordered 20 days to (Plf. Aff., served a "late, to the instant motion, ~ unverified plaintiff 4 of 13 P"n •• 4. nf 1 'l [*FILED: 5] NEW YORK COUNTY CLERK 09/16/2020 11:57 AM INDEX NO. 154944/2019 NYSCEF DOC. NO. 34 moves RECEIVED NYSCEF: 09/16/2020 to strike the affirmative summary judgment defenses in the answer, for in its favor and for other relief. Discussion Defendants' Cross Motion Plaintiff's instant motion and any opposition papers was filed on January were to be served the return date of the motion, 4, 2020 defendants, this court adjourned to February 25, 2020 2020, defendants' cross motion motion, NYSCEF have provided represented and in opposition to plaintiff's of even date Doc. No. 24) and asserted, [the eviction those immediately papers to in March also asserted 2019" of formal 2019] and I would (Guarantor that, "in addition requesting that the Court direct discovery, 154944/2019 that [Michael Kimm, Esq.] who has ~ 3). plaintiff among other things, Court in New York City;" Affidavit, the Court direct (Guarantor of eviction since before March Guarantor of instant of this action;" with any notice in [the] Tenancy my business 24, (NYSCEF Doc. No. 23), and in support filed his affidavit that "had I received On February (Michael Kimm, Esq.) filed a notice "was never provided legal proceedings of the return date of the motion that "I do not uriderstand the nature Tenant returnable At the request (NYSCEF Doc. No. 27, ~ 3) for discovery Guarantor Affidavit; (NYSCEF Doc. No. 16). counsel of the cross motion seven days before which was originally on February 17, 2020, I also request to provide me with access to that to the Page 5 of 13 100-106 LLC VS. CAFE WATER INC. Motion No. 002 5 of 13 [*FILED: 6] NEW YORK COUNTY CLERK 09/16/2020 11:57 AM INDEX NO. 154944/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 09/16/2020 [leased premises] various articles to defendants' February to retrieve of personal effects" cross motion, pursuant Separately, to CPLR 2214 (Brian Haberly, dated March 9, 2020 Guarantor's assertion am the attorney personally in support exhibits) "is baseless Doc. No. 30), that and false," proceedings (Plf. Opp. Reply, of such statement, errerr plaintiff eviction were because against Plaintiff also stated, err (as petition, of filing and service 11; referencing among other things, of same request for of the exhibits). that "on March 2019, more than a year ago, the warrant of eviction and Tenant was evicted Building," and since then, the leased premises from the commercial the As by the Civil Court of a final order and a warrant (exhibit I) (id., "I and I am attached (exhibits G and H), along with copies of plaintiff's issuance papers 10-11). copies of the verified and the affidavits by in an affirmation and signed these papers to the affirmation, the rent demand plaintiff, for eviction with" the nonpayment in the Civil Court evidence stated that no petition and in reply Affidavit, (Plf. Opp. Reply; NYSCEF who prepared familiar of the cross motion to the cross motion Esq.), filed or served upon Tenant dated (b) (NYSCEF Doc. No. 26). made in the Guarantor its counsel In response 6). err . and . filed a notice, its rejection in opposition to the assertions properties (id., plaintiff 25, 2019, indicating as untimely Tenant third-party 19, was executed space at the "has already Page 6 of 13 154944/2019 100-106 LLC VS. CAFE WATER INC. Motion No. 002 6 of 13 [*FILED: 7] NEW YORK COUNTY CLERK 09/16/2020 11:57 AM INDEX NO. 154944/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 09/16/2020 [been] relet to a new tenant as of August Plaintiff 15) . further property frivolous," claims nor have defendants somehow provide for a money an offset against judgment against In light of the foregoing exhibits consisting documents, judgment was no proceeding required discovery" facts motion, submit argument motion" argues eviction and the attached filed court to be developed to defendants' "failed to be and in are unavailing. ~ 4) belated counsel cross "failed to that to make even one legal claims;" to delay the hearing by filing the cross motion; any specific there could be completed;" that defendants' for its non-existent to identify (id., ~ 16). in [support of] the cross motion;" cross motion trying the Plaintiff's -- that "we were not shown any [must] be permitted an affirmation the untimely merely before in opposition plaintiff "third party with what I had understood (Guarantor Affidavit, Moreover, any that "there was no city marshal, that complied procedures that "these statements, assertions of possession;" (a leased ATM) provided Defendants" of copies of plaintiff's defendants' that no third party has sought proof of any type" that an alleged claim would (id., ~~ 12, assertion in the premises because from the premises "documentary 2019" stated that, Guarantor's there was "third party property" is "totally 1, that defendants on this summary judgment and that defendants item to be produced "are "failed in discovery" other Page 7 of 13 154944/2019 100-106 LLC Motion No. 002 VS. CAFE WATER INC. 7 of 13 [*FILED: 8] NEW YORK COUNTY CLERK 09/16/2020 11:57 AM INDEX NO. 154944/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 09/16/2020 than "facts to be developed and 24-27) . motion in discovery" These arguments are persuasive " 17 and, thus, the cross is denied. Defendants' Affirmative As noted above, was denied Defenses after their motion by the court, defendants (NYSCEF Doc. No. 14) asserting which (Pf. Opp. Reply, is comprised plaintiffs pursuant may move £01' ground of a short sentence. judgment that a defense As a preliminary (lack of jurisdiction) affirmative defenses made a pre-answer raising 11 affirmative to CPLR 3211 therein jurisdiction plaintiff's By the instant motion, each of the affirmative that "a party one or more defenses, plaintiff and fourth argues (defective must be stricken to dismiss any objection on the because service service of process of process) since defendants the Complaint to this court's such defenses. that the third without alleged lack of (Plf. Aff., This court concurs " 13- with argument. Next, plaintiff affirmative matter, motion waived each of is not stated or has no merit." or defective 14), defendant answer defenses, (b), which states dismissing the Complaint filed an unverified seeks an order striking defenses to dismiss defenses \vithout any specifics these affirmative argues that each of the remaining is "no more than a very short sentence, or detdils defenses of dny kind," and as such, should be stricken because they are Page 8 of 13 154944/2019 100-106 LLC VS. CAFE WATER INC. Motion No. 002 8 of 13 [*FILED: 9] NEW YORK COUNTY CLERK 09/16/2020 11:57 AM INDEX NO. 154944/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 09/16/2020 "not plead with particulariLy as required t hus sub j ec t to dis rnissalp ursua n t tu by CPLR 3013,u and are C PLR 3211 (b ) (i c..~~, en en E~- 18) . On a motion CPLR 3211 (b), the moving demonstrating law to dismiss consist that the defenses are without Servs., On such a motion, affirmative (Carlyle, LLC v Beekman [1st Dept 2015]; Robbins v without pursuant as a matter 559, 559 of [2d defenses, that supporting facts are Garage LLC, 133 AD3d Growney, to of merit LLC, 34 AD3d of "bare legal conclusions" stricken defenses party bears the burden (Vita v New York Waste Dept 2006]). affirmative 229 AD2d 510, 511 356, 358 [1st Dept 1996]). Here, all of defendants' are mere legal conclusions example, the second relief"), sixth precludes relief precludes cate~ory ninth ), breach relief") motion 154944/2019 relief"), relief"), defenses of "bare legal conclusions." defendants' instant motion counsel so as to provide defenses For breaches precludes seventh ("estoppel to satisfy and eleventh in the lease all fit within the More importantly, in the to strike these affirmative failed to file any response supporting 100-106 LLC VS. CAFE WATER INC. facts. failure of one or more covenants affirmative face of plaintiff's defenses, antecedent ("plaintiff's precludes affirmative supporting ("waiver precludes precedent ("plaintiff's without ("plaintiff's U conditions one-sentenced 9 of 13 facts for such defenses to the that Page 9 of 13 [*FILED: 10] NEW YORK COUNTY CLERK 09/16/2020 11:57 AM INDEX NO. 154944/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 09/16/2020 Such failure are any more than bare legal conclusions. and, accordingly, matter these affirmative defenses is fatal are stricken as a of law. Summary Judgment Relief As noted above, action seeking except to recover attorneys' an amount to be determined remaining causes recover of action itemized contract requests such causes law, tendering (~si J . judgment motion, of entitlement sufficient However, evidence on breach judgment of in its favor on should party opposing to judgment ria 1 in weighing be analyzed the motion" as a matter of any material the motion is made, should be the burden to produce the existence 0f must make a to eliminate the motion proof to establish Furthermore, the movant if this showing off act whi ch req uire sat "evidence seek to In this motion, fails this showing, shifts to the party opposing evidentiary from defendants causes of action. If the movant den ied in of action. facie showing [1986]) of defendants (first, second and fifth) an award of summary In a summary prima fees against causes by the court, the Complaint's sums of money and guaranty plaintiff for the third and fourth then sufficient of a material issue the act ion U::_cl_.:..l. a summary judgment in the light most (Martin v __ BFLg_g.?, motion, favorable 235 AD2d to the 192, 196 Page 10 of 13 154944/2019 100-106 LLC VS. CAFE WATER INC. Motion No. 002 10 of 13 [*FILED: 11] NEW YORK COUNTY CLERK 09/16/2020 11:57 AM NYSCEF DOC. NO. 34 [}S~ INDEX NO. 154944/2019 RECEIVED NYSCEF: 09/16/2020 Dept 1997]), and the motion should be denied if there doubt about the existence of a material issue of fact Resta~li NY3d [2012]). C01_1st:r. .. Corp., 18 By the instant motion, entitled to "a money additional Aff., judgment" asserts against sum certain representing 503 plaintiff rent in the sum certain with the additional Guarantor 499, the unamortized the amount sought, owed defendants, (id., ~ 29). plaintiff submitted president of Morgan signatory for plaintiff with various Rider, exhibits and damage In connection Duell explained Lease/Rider reserving in the petition for to determine In further support of the relief of Andrew Corporation, (Duell Aff.; NYSCEF NYSCEF Duell, the agent and the Lease, of defendants (Duell Aff., Duell then explained and the rent amount plaintiff the and Assumption Doc. No. 19). with the causes of action filed in the non-payment the Doc. No. 18), along of Lease, the Assignment calculations]; exhibits). (Plf. a hearing Capital other documents just the pending an affidavit the liability along the claims in the Complaint, under the (exhibits D and E), and the relationship foregoing ~ith referencing against (exhibits A to F [including the Modification of Lease, Tenant, Holding "for cost of the Lease" ~ 28), and that it is "currently legal fees" against (V~9.9~ of $251,395.92, of $131,277.78 any that it is defendants amount is of the ~ ~ 7-14; the amount proceedings sued for against was able to relet the Page 11 of 13 154944/2019 100-106 LLC VS. CAFE WATER INC. Motion No. 002 11 of 13 [*FILED: 12] NEW YORK COUNTY CLERK 09/16/2020 11:57 AM INDEX NO. 154944/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 09/16/2020 premises to a new tenant at a significantly Tenant's eviction "various rent and additional January (id., ~ ~ 15-16). Duell also explained rent" that have accrued 31, 2020, and the calculation defendants to plaintiff of various which are reflected (id., ~ 17; referencing exhibit Duell further the computation explained under the long-term "unamortized cost of the Lease" Based on the foregoing, facie case for the instant thereof. In opposing affidavit of Guarantor, through amounts owed by ledger of damages]). of Guarantor's Lease in connection liability with the (id., ~~ 19-22). plaintiff summary only, by tendering the in an annexed F [calculation to plaintiff to liability lower rate after has presented judgment sufficient the motion, motion with respect evidence in support defendants who stated, a prima only submitted in relevant part, that "I do not understand the nature of my attorney [Michael Kimm, Esq.] who is fluent bilingual Affidavit, guaranty. AD2d for money" I (Guarantor ~ 3). It is hornbook English, of this action but with the assistance . this lawsuit came to understand the without law that the inability more, See Maines 760, 761 Defense (Yd is no defense to understand to the enforceability Paper and Food Service Inc. v Adel, of a 256 Dept. 1998). counsel's defense of this action lacks rigor, yet this court must strive to render justice with fairness and under Page 12 of 13 154944/2019 100-106 LLC VS. CAFE WATER INC. Motion No. 002 12 of 13 [*FILED: 13] NEW YORK COUNTY CLERK 09/16/2020 11:57 AM INDEX NO. 154944/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 09/16/2020 these circumstances 1240 [A], County (see generally, 2010 NY Slip Op 52404[U], 2010] of the adjudication adversary system depends zealous advocacyU "objective assessment omitted)]; 22 NYCRR requires damages, [Obligations amounts, attorneys' Collision, Inc., 120 AD2d 354 does not prima including, facie establish but not limited the premises, fees. (lst if any, and Auto j/ ~ DEBA. DATE CHECK ONE: CASE DISPOSED APPLICATION: SETTLE ORDER GRANTED ~ VS. INCLUDES D to, Dept 1986). 9/15/2020 154944/2019 100-106 LLC Motion No. 002 of the Judge]). See Lloyd v Imperial reasonable and the there must be a trial assessing rent, costs of reletting CHECK IF APPROPRIATE: of justice the rights of the parties evidence damages lawyers (internal citations [a] [the administration to CPLR 3212(c), the liquidated ongoing cause with an ] the of the of their client's 700.5 as plaintiff's and fairness that "trial U Pursuant to protect on the assumption of its meritsU of the public 31 Misc3d [Sup Ct, Monroe authority process, a judge to "safeguard interests Exhibit A [court has the inherent integrity temper Doody v Gottshall, NON-FINAL X DENIED GRANTED Ak ••~ d JAMES, J.S~C. DISPOSITION IN PART SUBMIT ORDER TRANSFERIREASSIGN ~ FIDUCIARY APPOINTMENT D OTHER D REFERENCE Page 13 of 13 CAFE WATER INC. 13 of 13

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