770 Fifth Ave. Co. v 770 Frame LLC

Annotate this Case

Download PDF

770 Fifth Ave. Co. v 770 Frame LLC 2022 NY Slip Op 32926(U) August 25, 2022 Supreme Court, Kings County Docket Number: Index No. 508376/2022 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. INDEX NO. 508376/2022 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/30/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KING$ : CIVIL TERM: COMMERCIAL PART 8 -,-,---·---· ._ .... -·-------- ---------· ---.. --· --.x.· 770 FIFTH AVENUE COMPANY, Decision and order Plaintiff , Index No. 5DS376/ZQ 22 - against - 770 FRAME LLC and SCHNEUR MINSKY, De fen:dant s, --~--- --~------- -,- - ~---- PRESENT:·. HON. Augvst 25, 2022 ---------- x LEON RUCHELSMAN The defendant s have pursuant to CPLR §3211. seeking to dismiss the complaint . amend the complaint . The plaintiff has cross-mov ed seeking to The motions have been opposed respectiv ely. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now tn-:3.kes the following determina tion. According to the complaint on July 10, 2013the defendant executed a promissor y note in favor of the plaintiff in the amount of $330,000. The note. required monthly payments of $3,000 for five years and a final payment of $150,000 due July 2018. Further, on July 3, 2013 the defendant Schneur Minsky executed a per:sonal guarantee which guarantee d the payments pursuant to the note. The complaint alleges the defendant s failed to make the final payment and that as of the filing of the complaint the defendant s owe $211,402.9 9 comprising principal and interest. The plaintiff c:ortunenced this action seeking recovery of the Sums owed based upon the note and the guarantee ; Indeed, the complaint contains two .causes of action, the- first based upon the [* 1] 1 of 5 INDEX NO. 508376/2022 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/30/2022 note and the seccfrid bas.ed upon the· g1..1arai1ty.. The defenda nts have: now moved see.king to dismiss tJie lawsuit 6n the grounds the plaintif f 770 .Fifth Avenue. Company has n0. standin g·to pursue the claims, Further, the def eni:lants assert the guarante e ·pre-dat es the prcimis~ ory riote -and thus could not possibly have be.en intended to guarante e a loan that had not yet taken place. The plaintif f argues the. complain t. alleges prima fa.cie claims and seeks to ~,mend the cpmplai nt to address the issues raised. Conclus ions of Law j;t is well settled that a request to arnend a pl~,;l.ding ~hali be .freely given: unless the propos~:d amendme nt would llhfairly .Prejudi ce pr surprise th.e opp6sin.g party, or is palpably insuffic i~nt o.r p?tently devoid of merit (Adduci. v .. 1829 Park Place LLC,. 176 AD3d 658., 107 t,JYS3d. 690 [2·d D.ept .. ; 2Q19] ) . The decision wb:eth~r to gran.t such leave is within the. ·court's. soµnd. ctiscre.ti on. and such deteTmin ati·on ·will no.t ligllt.ly be se:t• Bsiqe {Ravnika r v. Skyline Credit-R ide Inc.·.,. 79 Ab3d 1118~ 9·13 NYS2d :;339 [2d l).ept., Z0.10 l) . 'rherefor e·,. when exercisi ng. ttia.t dis·creti on the court ·should co.nside r whether the p·arty seekin9 the, amendme nt .wa:s aw:ar~ .of. the facts Upon which the request .:ts b.ased and. whether a reasonab le excuse f .Qr any •¢elay .has beeti.. presente d and whet}ler any prejudic e will re·sult (Cohen v .. Ho:, :li3 An3d 705, 8.33 NYS2d 542 [2d Dept., 2007J}. :2 [* 2] 2 of 5 INDEX NO. 508376/2022 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/30/2022 First, it must be noted that there is really is no dispute the defendant has hot repaid the money owed. The only grounds for dismissal are technical , namely an incorrect ly dated guaranty and the wrong descriptio n of the entity plaintiff . It is true the guaranty cqntains the date of July 3, 2013 while the note itself contains the date of July 10, 2013. However, the guaranty can only be referr·ing to the note of July 10, 2013. for two distinct reasons. This is true First, there is no other transactio n . . between the parties to which the guaranty could possibly refer (see, Cohen v, Sandy Springs Crossing Associate s L.P., 238 Ga App 711, 520 SE2d 17 [1999]). S;econd, the guaranty is verified by a nqtary which lists the date as July 10; 2013 the same date as the note. The defendant s point out that the guaranty is four pages while the notary acknowled gment page is listed as pag_e 3 raising questions as to its veracity. That is a curious observatio n, however, without any evidence impugning the integrity of the notary there is no basis to question its authentic ity. Further, a review of the signature of the notary annex~d to the note and the signature of the same notary annexed to the guaranty clearly demonstra tes they are different , confirming the notary signed sepa:rately for each document. Thus, this is a simple mistake A wherein the wrong date had been included within the guaranty. mere clerical mistake cannot affect the validity of the entire guaranty at this stage of the proceedin gs. 3 [* 3] 3 of 5 The case of U.S. v. INDEX NO. 508376/2022 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 21 Lowy, RECEIVED NYSCEF: 08/30/2022 of Ne.w. York 1989] is 1040 [Eastern District 703 F. Supp . . instructiv e. In tlJ.at case the defendant borrowed money and signed a note and a guaranty, The note was dated June 29, 1976 while the guaranty was dated May 6, 1976. The court rejected the argument, also presented here, that the guaranty did not refer to the note since the date of the guaranty pre"""dated the note. court stated that The 'defendan ts '· sole basis for asserting that they 1 never guarantee d the 1976 Note is the fact that the 1976 Guaranty signed by them mistakenl y ref.ers to the Note as having been made on May 6, 1976 (the date the Guaranty was made), rather than on June.29, 1976, the true date of the making of the Note. Defendant s have no explanatio n as to what it was they were guarantee ing when they si,gned the Guaranty on May 6; 1976, nor can th.ey explain why the lender, ainount and interest of the Note referred to in that Guaranty are exactly equal to the lender, amount and interest of the June 29 Note. Defendant s do ncit dispute that a $270,000 loan was made to Adria on June 26, 1976. They simply want this court to hold that they need not honor their guaranty of that loan because the guaranty mistakenl y refers to the loan a.Shaving been made on May 6. The court will not permit ciefendant s to escape their obligation s on the basis o:f Further, in a footnote the court a trivia.! clerical er,ror" (id). rejected the assertion that "importan t contractu al tights ca:n turn on tiny mistakes in drafting an agreement " Cid) . 4 [* 4] 4 of 5 INDEX NO. 508376/2022 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/30/2022 Likewise, in this case, it i s clear the guaranty specifical ly refers to the note a n d a mere clerical mistake was the cause of inserting the wrong date. Thus, the arguments presented about reformation of contracts is inapp li cable in this specific scenario. The refor e, the motion seeking to dismiss the complaint on the grounds t he guaranty pre - dates the note is denied. The plaintiff seeks to amend the complaint to reflect that the correct composition of the plaintiff is one of a partnership and not a corporation and that an executor has been appo in ted on behalf of one of t he partners. While i t is true that perhaps careless drafting of the complaint led to its incorrect designation, there really is no basis to deny the amendment. Moreover, the fact counsel cou l d have been aware of true nature of plaintiff's partnership stat us does not unde rmine th e request to ame nd th e complaint. Therefore, based on the foregoing the motion seeking to amend the complaint is grante d . The moti on seeking to dismiss the complaint is consequently denied. Last ly, the motion seeking atto rney's fees is denied. So ordered. ENTER: DATED: August 25, 2022 Brooklyn N.Y. Hon. Leon Ruchelsman JSC 5 [* 5] 5 of 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.