Genius Media Group, Inc. v Bond Collective

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Genius Media Group, Inc. v Bond Collective 2021 NY Slip Op 32444(U) November 17, 2021 Supreme Court, Kings County Docket Number: Index No. 504082/2021 Judge: Leon Ruchelsman 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] KINGS COUNTY CLERK 11/24/2021 04:19 PM INDEX NO. 504082/2021 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 11/24/2021 SUPREME COURT o"r ·THE "STATE ·oF NEW- Y-dRK COUNTY OF K_INGS : CIVIL TERM: COMMERCIAL PART .8 --------- .-------------- GENIUS MEDIA GROQ.P, ----. - -----~--- X INC ... , Dec.is ion and order Plaihtiffr - ;Index Nq. 50.4-.082/2"0-21 - ag~-in,st- BOND COLLEC'I'iVE, ET AL, Defendants, Novemper 17 ~ 2.0"21 --------------. --·. ----------. --. - .. -. ------ .· -.x. PRESEN.T : HON. LEON RUCHELSMAN The plaint1.f·f move,s purs-uc:rnt to CJ;>LR §3212 ::,e.1;:-}<ing sµmma-ry judgement regarding money owed based upon a guaranty. The defendants oppose the motion ·arguing that the· _.rlaintiff has failed to satisfy .its burde.n that there _are .no questions of fact. Papers· wer.e submitted by all ·parties antj after revi·ewing· the argwn~nts ·of all partie.s this court now -makes the .f_o-llow_-ing determination . Backgrou:hd Ort September 1, 20.18 tbe plaintiff licens.or and defendant licens.ee entered into ari agreement concern:in9._ space owned by .the plaintiff located at Third Street in Kings County. The defenciant Shlornp Siiber executed a gua:i:a.nty concerning any unpaid license f·ee~ ~ The liqertse ·fees were paid thr..ough F~bru~_ry 2.020. ·The lic.ense was revoked in November 2020 and the defendant vac~ted the pre.mises a.t the end of· Decembe'r 2020. The :pla:intiff a,sserts_ the.re are outstanding license f:ees owed and. has sued t})e defendants for such unpaid fees. The plaintiff now moves seeking 1 of 5 [*FILED: 2] KINGS COUNTY CLERK 11/24/2021 04:19 PM NYSCEF DOC. NO. 37 INDEX NO. 504082/2021 RECEIVED NYSCEF: 11/24/2021 summary judgement arguinq the defendant Silber unconditionally guaranteed the fees and there are no questions of fact such fees are outstanding. As noted, the motion is opposed on tl1e grounds there are questions of fact which foreclose a summary determination. Conclusions of Law Summary judgernent may i::)e granted where the movant establishes sufficient evidence which would compel the court to grant judgement in his -or her favor as a matter of law (Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]) . Summary judgement would thus be appropriate where no right of action exists foreclosing the continuation of the lawsuit. Generally, i t is for the jury, the trier of fact to determine the legal cause of any injury (Aronson v. Horace Mann'Barnard School, -224, AD2d 249, 637 NYS2d 410 [1 st Dept., 1996]). However, where only one conclusion may be drawn from the facts then the question of legal. cause may be decided by the trial ,court as a matter of law (Derdiarian v.Felix Contracting Inc., 51 NY2d 308, 434 NYS2d 166 [1980] ) . Thus, to succeed on a motion for. summary judgement it is necessary for the movant to make a prima facie showing of an entitlement as a matter of law by offering evidence demonstrating the a:6se11ce o.f any materic1l issue of fa.ct (.Winegrad v. New York Uhiv~r~ity Medic~l Center, 64 NY2d ~5i~ 4Bi NYS2d ~16 [1985]). 2 2 of 5 [*FILED: 3] KINGS COUNTY CLERK 11/24/2021 04:19 PM NYSCEF DOC. NO. 37 INDEX NO. 504082/2021 RECEIVED NYSCEF: 11/24/2021 Moreover, a rnovant cannot succeed upon a motion for summary judgement by pointing to gaps in the opponents case because the moving party must affirmatively present evidence demonstrating the lack of any questions of fact (Velasquez v. Gorfrez, 44 AD3d 64 9, BAJ NYS2d 368 [2d Dept.; 2007]}. Tt is well settled that summary judgement is appropriate where an unconditional guaranty to make certain payments has been presented (Barnaba Realty Group LLC v. Solomon, 121 AD3d 730, 994 NYS2d 356 [2d Dept., 2014]) . In this case the guaranty states that the guarantor, defendant Silber, "absolutely, unconditionally and irrevocably guarantee,$ to Licensor the full and prompt payment and performance and observance of all of the liabilities, responsibilities and obligations bf Licensee under the License ("Licensee Obligations"), all irrespective of the validity, bind.ing effect, legality or enforceability which might how or hereafter or otherwise constitute a legal or equitable discharge or defense of a guarantor" (see, Good Guy Guaranty, September 1, 201a, ! llIn opposition, the defendant r,aises two arguments seeking to oppose summary judgement. The first argument raised is that the defendant Bond is not licensed to conduct business in the State of New York.. However, even if tha.t is true it does not raise .~my issue .of .material fact necessitating .a denial of judgement. .summary Pursuant to BCL §1312 and Limited Liability Law. §80.8 3 3 of 5 [*FILED: 4] KINGS COUNTY CLERK 11/24/2021 04:19 PM INDEX NO. 504082/2021 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 11/24/2021 a foreign corporation not authorized to do business in the state of New York may not maintain any actions within the state (Pergament Home Centers, Inc. v. Net Realty Holding Trust, 171 AD2d 7 36, 567 NYS2d 292 [2d Dept., 1'991]) . However, in this case the defendant Bond that is allegedly not authorized to do business in New York was sued by the plaintiff and is not pursuing any action. Indeed, pursuant to LLC Law §808 (a) ''a foreign limited liability company doing business in this state without having received a certificate of authority todo business in this state may not :maintain arty action, suit or special proceeding in any court of this state unless and until such limited liability company shall have received a certificate of authority in this state" (id); There is no cause of action asserting the lack of such authorization, rather, such corporation may not maintain any such action in New York. Therefore, the corporate status of defendant Bond, or codef eridant Coworkrs, who is not· 'even the subj E!ct of this motion fails· to raise any question of fact. Next, the defendant argues the lease underlying the obligation has not been presented. However, the motion is not based upon the lease, rather it is based upon the guaranty. Therefore, the actual information contained in the leasEl is not ·relevant and fails to raise any question of fact. Thus, this action differs from a mortgage forecl.osure action as argued by 4 4 of 5 [*FILED: 5] KINGS COUNTY CLERK 11/24/2021 04:19 PM INDEX NO. 504082/2021 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 11/24/2021 the defendant, because in a mortgage foreclosure action the suit pertains directly to the mortgage document itself, without which a lawsuit cannot proceed. In any event, the lease has been produced. Lastly, no questions of fact are raised by the date contained on the notarization of the guaranty. That date does not raise any question whether the guaranty is somehow rendered invalid. Therefore., based on the foregoing, the motion seeking summary judgement is granted. The parties will be notified of a hearing date before a judicial hearing officer to decide t:he precise amount due including attorney's fees and whether the imposition of 150% interest for December 2020 use and occupancy was proper and all amounts asserted by the plaintiff. The hearing will only involve the amount due. So ordered. ENTER: DATED: November 1 7, Brooklyn N.Y. 2021 Hon. Leon Ruchelsman JSC 5 5 of 5

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