201 E. 61 LLC v In Soo Park

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201 E. 61 LLC v In Soo Park 2022 NY Slip Op 32564(U) July 27, 2022 Supreme Court, New York County Docket Number: Index No. 160567-2021 Judge: Lynn R. Kotler 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. INDEX NO. 160567/2021 FILED: NEW YORK COUNTY CLERK 07/28/2022 12:06 PM NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 07/28/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.LYNN R. KOTLER, J.S.C. PART~ 201 East 61 LLC, et. al. INDEX NO. 160567-2021 MOT.DATE • V. MOT. SEQ. NO. 001 In Soo Park, et. al. The following papers were read on this motion to/for --=de=fa=u=lt.....,ju=d=gm=e=n:.:...t_ _ _ _ _ _ _ __ NYSCEF DOC No(s) . _ _ __ Notice ofMotion/Petition/O.S.C. -Affidavits- Exhibits NYSCEF DOC No(s). _ _ __ Notice of Cross-Motion/Answering Affidavits - Exhibits NYSCEF DOC No(s) . _ _ __ Replying Affidavits This is an action for a breach of a commercial lease. Plaintiffs now move for an order pursuant to CPLR § 3215 granting them a default judgement against the commercial tenant, defendant, Soc Family Corp. d/b/a Captain Cleaners a/k/a Captain Dry Cleaners ("Soc Family") and against the guarantor, defendant In Soo Park ("Soc Park"). Plaintiffs seeks a money judgement of $811,459.51 against the defendants for rent plus interest as well as recoupment of their reasonable legal fees, costs and expenses. The motion has been submitted without opposition despite proof of service of notice of the motion on the defendants via first class mail. Therefore, the motion is considered on default. Plaintiffs have failed to provide proof of service of the summons and complaint on defendant Soc Park in his/her individual capacity. Therefore, the motion must be denied as to this defendant. Plaintiffs have provided proof of service of the summons and complaint upon defendant Seo Family via personal service to Ms. Nancy Dougherty, an authorized agent of the Office of the Secretary of State of the State of New York, in accordance with BCL § 306. Despite such service, Soc Family has not answered the complaint and it's time to do so has not been extended by the court. Therefore, plaintiff has established that the defendant, Seo Family, has defaulted in appearing in this action. While a default in ~nswering the complaint constitutes an admission of the factual allegations therein, and the reasonable inferences which may be made therefrom (Rokina Optical Co., Inc. v. Camera King, Inc., 63 NY2d 728 [1984]), plaintiffs are entitled to default judgment in their favor, provided they otherwise demonstrates that they has a prima facie cause of action (Gagen v. Kipany Productions Ltd., 289 AD2d 844 [3d Dept 2001 ]). An application for a default judgment must be supported by either an affidavit of facts made by one with personal knowledge of the facts surrounding the claim (Zelnick v. Biderman Industries U.S.A., Inc., 242AD2d 227 [1st Dept 1997); and CPLR § 3215[f]) or a complaint verified by a person with actual knowledge of the facts surrounding the claim (Hazim v. Winter, 234AD2d 422 [2d Dept 1996); and CPLR § 105 (u]). Dated: :1 \ 'J.,,--'\ \ 1..-"'\.\ \ 1. Check one: 2. Check as appropriate: Motion is 3. Check if appropriate: HON. LYNN R. KOTLER, J.S.C. 0 CASE DISPOSED • GRANTED • DENIED • GRANTED IN PART'OTHER • SETTLE ORDER • SUBMIT ORDER • DO NOT POST • FIDUCIARY APPOINTMENT • REFERENCE Page 1 of 4 · [* 1] ~ NON-FINAL DISPOSITION 1 of 4 FILED: NEW YORK COUNTY CLERK 07/28/2022 12:06 PM NYSCEF DOC. NO. 51 INDEX NO. 160567/2021 RECEIVED NYSCEF: 07/28/2022 Plaintiffs are among the current legal owners of the premises located at 201 East 61st Street, Store E, New York, New York 10065 (the "premises"). In September 1988, the prior owner of the premises, non-party the Rakoff-Marolda Corporation ("Rakoff'), leased the premises to non-party Captain Dry Cleaners, Inc. ("Captain") pursuant to a written lease with a term of ten years expiring on September 1998. The lease was assigned by Captain to non-party Ha Family, Inc. by Assignment and Assumption of Lease dated March 1990. In June 2005, Rakoff and Ha Family, Inc. signed an amendment to the lease in which some terms of the lease were changed. The lease was then assigned by Ha Family Inc. to non-party Water Mill Cleaners Corp. by Assignment and Assumption of Lease dated September 2005. Water Mill Cleaners Corp. assigned the lease to the defendant, Soo Family, by Assignment and Assumption of the Lease dated May 2013. Concurrent with Soo Family's execution of the assignment, Soo Park executed a personal guaranty agreement wherein s/he unconditionally guaranteed Soo Family's obligations under the lease. Finally, Soo Family extended the lease agreement by Amendment and Extension of the Lease Agreement dated May 2013 (the "extension"). The extension is signed by Soo Park, in his/her capacity as the president of Soo Family. Pursuant to the extension, Soo Family became the commercial tenant of the premises and the lease term was extended through June 30, 2023. Plaintiff has provided copies of the original September 1988 lease, the March 1990 assignment, the June 2005 amendment, the May 2013 extension and the May 2013 guaranty. Plaintiff has not provided a copy of the May 2013 assignment. However, the defendant signed the extension which acknowledged the May 2013 assignment therein. In its complaint, the plaintiffs assert two causes of action. The first cause of action is for breach of contract against the tenant, Soc Family. The second cause of action seeks to enforce the guaranty against Soc Park, and a declaration that Soc Park is personally liable for Soc Family's obligations under the lease. The motion is further supported by the sworn affidavit of Ms. Isabel Negron, the property manager of the premises, who states based upon personal knowledge that the plaintiff 201 East 61 LLC owns the premises and that plaintiff I.R. 201 E 61st LLC has an ownership interest in the premises. She states that 201 East 61 LLC obtained title to the premises in 2013. She further asserts that on or about May 2013, Water Mill Cleaners Corp. assigned its lease to Soo Family, and that Soo Family occupied the premises following the May 2013 assignment. She states that in the same month, Soo Family executed an Amendment and Extension of the Lease which extended the Lease to June 30, 2023 and required the tenant to pay rent and additional rent under the terms of the original 1988 lease. Negron claims that Soo Family breached the lease by failing to pay rent due in November 2016. Negron asserts that Soo Family did not make any further rent payments thereafter. She claims that on or about April 14, 2017, the plaintiffs commenced a non-payment action against Soo Family in the Civil Court of the City of New York, County of New York (index no. 060328/2017) which ended in the issuance of a warrant of eviction and a money judgment of $64,259.61 in favor of the plaintiffs. Negron asserts that Soc Family was evicted from the premises on July 25, 2017. Negron states that at the time of eviction, the tenant owed back rent and additional rent totaling $140,504.73. Of that sum, $64,259.61 was included in the Civil ~~urt judgement, for a remainder of $76,245.12 lost rent from the day of default through to the day of ev1ct1on. Negron then states that the plaintiffs lost $423,345.29 in rent from the date of the eviction through the end of the Lease term as a result of the default. Negron also asserts that Soo Family owes $245,491.02 in additional rent for property taxes. The June 2005 amendment to the lease, which was incorporated into the subsequent assignments, included a clause that states that: Tenant agrees to pay Landlord as additional rent for each tax year an amount equal to Tenant's proportionate share of the amount by which the taxes due for such tax year are greater than the Base tax ... "Base Tax" shall mean the fiscal tax year 2004/2005 ... "Tenants Proportionate Share" shall be 20%. ~egron states that the base tax for the 2004/2005 fiscal tax year was $208,824.85. Negron also provides the property tax amounts for the six years between Soo Family's default and the expiration of Page 2 of 4 [* 2] 2 of 4 FILED: NEW YORK COUNTY CLERK 07/28/2022 12:06 PM NYSCEF DOC. NO. 51 INDEX NO. 160567/2021 RECEIVED NYSCEF: 07/28/2022 the lease. 20% of the differences between those property taxes and the Base tax gives a total of $245,491.02 in additional rent. Therefore, the plaintiffs are entitled to $245,491.02 in additional rent Next, in her affidavit Negron states that, in accordance with the lease, Soo Family owes $53,932.74 in re-letting expenses for repairs and broker fees. The original 1988 lease whose terms were adopted in every subsequent assignment provides, in part, that: in case of any such default, re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a) the rent and additional rent shall become due thereupon ... (c) tenant. .. shall also pay Owner liquidated damages for the failure ... to observe and perform said Tenant's covenants ... In computing such liquidated damages there shall be added to the said deficiency such expenses as owner may incur in connection with re-letting, such as legal expenses, attorneys' fees, brokerage, advertising, and for keeping the demised premises in good order or for preparing the same for re-letting." The plaintiffs' application is supported by an invoice from the broker demonstrating costs of $50,432.74. Negron states that the plaintiffs incurred $3,500 in expenses to repair the premises. Therefore, plaintiffs are entitled to $53,932.74 in re-letting fees. Finally, Negron states that the Soo Family owes $12,445.34 in legal fees and expenses. The original 1988 lease states that: in the event Tenant herein fails to make any of the installments of rent or additional rents as herein stated, or otherwise defaults under the terms of the lease ... and Landlord is required to employ counsel for the collection, enforcement, review or preparation of any documents thereof, then, Tenant shall be liable for reasonable attorney's fees. Plaintiffs have provided the court with their legal fee invoices and the affirmation of Ryan P. Kaupelis, Esq., attesting to the legal services performed by plaintiff's counsel. The invoices demonstrate that the law firm has billed plaintiff $12,445.34 for legal services provided in connection with the nonpayment proceeding and the instant action. Attorney Kaupelis details the services he provided in connection with this matter, as well as his background and experience. Therefore, plaintiff has demonstrated that the hours worked were reasonable and that the charges were commensurate with the work performed (see i.e. Gamache v. Steinhaus, 776 NYS2d 310 [2d Dept 2004)). Accordingly, plaintiffs are entitled to the reimbursement for legal fees in the sum of $12,445.34. Based upon the foregoing, plaintiffs have demonstrated a prima facie cause of action for breach of the lease against Soo Family and plaintiffs are entitled to a money judgment for $811,459.51 for unpaid rent, additional rent, and reasonable attorneys' fees together with interest from the date of default, November 1, 2016 (CPLR § 5001; see Solowv. Bradley, 273A.D.2d 75 [1st Dept 20001). Finally, pla_intiff seeks !o enforce the _guaranties against Soo Park. As discussed supra, plaintiffs ~a~e. not subm1~ed any evidence of service of the summons and complaint upon Soo Park in his/her 1nd1v1dual_ capacity. So_o Park i:nay have been served in his/her representative capacity as F>resident of Soo Family, but there_1s ~o ev,d_en~ thats/he ~as served in his/her individual capacity as guarantor. S/he m_ust_ be served in h1~/h~r ind1v1dual capacity. Therefore, this branch of the motion is denied without preJ~d1ce to renewal within 90 days u~o~ ~roo: of proper service of the summons and complaint and motion papers ~pon In Soo Park. Plaintiffs failure to renew within the time provided will be deemed an unreasonable failure to prosecute and the court will sua sponte dismiss this action pursuant to CPLR § 3216. - Page 3 of 4 [* 3] 3 of 4 INDEX NO. 160567/2021 FILED: NEW YORK COUNTY CLERK 07/28/2022 12:06 PM NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 07/28/2022 CONCLUSION In accordance herewith, it is hereby ORDERED that plaintiffs' motion for a default judgment is granted to as to the defendant Soo Family Corp. d/b/a Captain Cleaners a/k/a Captain Dry Cleaners; and it is further ORDERED that plaintiffs' motion for a default judgment is denied as to defendant In Sao Park without prejudice to renewal within 90 days upon proof of proper service of the summons and complaint and motion papers upon In Sao Park. Plaintiff's failure to renew within the time provided will be deemed an unreasonable failure to prosecute and the court will sua sponte dismiss this action pursuant to CPLR § 3216; and it is further ORDERED that the Clerk is directed to enter a money judgment in favor of plaintiffs 201 East 61 LLC and I.R. 201 E 61st LLC and against defendant Soo Family Corp. d/b/a Captain Cleaners a/k/a Captain Dry Cleaners for $811,459.51 together with interest from November 1, 2016. Any requested relief not expressly addressed herein has nonetheless been considered and is hereby expressly rejected and this constitutes the decision and order of the court. Dated: '1 \'~L,3\c1...,-~ So Ordered: 1 j ,i / ~ New York, New York Hon. Lynn R. Kotler, J.S.C. Page 4 of 4 [* 4] 4 of 4

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