26 Ct. Assoc. LLC v Tenenbaum

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26 Ct. Assoc. LLC v Tenenbaum 2023 NY Slip Op 33121(U) September 11, 2023 Supreme Court, Kings County Docket Number: Index No. 513029/2023 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. 513029/2023 FILED: KINGS COUNTY CLERK 09/07/2023 01:14 PM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/07/2023 SUPREME COURT OF tHE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM~ COMMERCIAL 8 -. - . ----------.---.---. ------·--.-------·.--- ·--x 2 6 COURT ASSOCIATES LLC., Plaintiff, Decision and order Index No. 513029/2023 - against - MARTIN TENENBAUM ESQ . , September 6; 2023 Defendant, -.-- .-·-- . ------. - .. -. -·-·----·---. ---·---------.z: PRESENT: HON. LEON RUCHELSMAN Motion Seq. #2 & #3 The plaintiff has moved seeking summary judgement and to strike the affirmative de.fens es of the def.endant. The defendant has cross-moved seeking to add another affirmative defense. motions have been opposed respectively. the parties and arguments held. The Papers were submitted by After reviewing all the arguments this court now makes the following determination. On April 23., 2009 the plaintiff and an entity called Wishful Thinking Inc., entered into a lease extension concerning rental space located at 26 Court Street in Kings county. The defendant Martin Tenenbaum and David Berger both guaranteed to lease rental payments. The lease expired on September 30, 2020. Ori September 3, 2020 Mr. Berger sent an email to the defendant which indicated that rental checks for half of July and half of August were mailed an:d that ''tnis co.nclµcies my rental obligations for the penthouse, .and the leas,e (and my guarantee) Realty is terminated. for Wishful Thinking Reht. for Septe:tilb.er, and going forward, is to be a !lat $4,000 and billed 011.iy to Tenenbaum & Shivers L.LP" (see, Email dated September 3, 2020 sent 4: 32 PM [NYSCEF D.o..c. N.o. [* 1] 1 of 5 INDEX NO. 513029/2023 FILED: KINGS COUNTY CLERK 09/07/2023 01:14 PM NYSCEF DOC. NO. 50 12]) .. RECEIVED NYSCEF: 09/07/2023 A few days later a representative of the defendant sent a return e:tnail to Mr. Berger which stated "correct,,. (see, Email dated September 8, 2020 sent 10:40 AM [NYSCE°F Doc. No. 13]), A few weeks later the defendant sent the plaintiff an email which included a lease amendment for the rental space. The amendment was never executed between the parties and while the defendant paid the rent through the end of 2020 he did not pay any rent thereafter until his departure in February 2022. The plaintiff argues that the original lease remained in effect and that consequently the defendant as guarantor remains liable for the rent owed. The defendant asserts that the lease terminated upon the departure of Wishful Thinking and thus a new lease was entered into between the parties. The defendant concedes that while it may be true no rental payments were made during the time the defendant remained a tenant, such non-payment can be the subject of a lawsuit against him but should not implicate• his status as a guarantor which terminated when the le·ase terminated. Conclusions of Law Summary judgement may be gr.anted w;here the movant establishes sufficient evidence which would compel the court to grant judgement in his or her.favpr as a matter of law (Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). summary judgement would thus b.e cJ.ppropriate wh.ere no x:-ight of action exists foreclosing the coritinuati6n of tha lawsuit. 2 [* 2] 2 of 5 FILED: KINGS COUNTY CLERK 09/07/2023 01:14 PM NYSCEF DOC. NO. 50 INDEX NO. 513029/2023 RECEIVED NYSCEF: 09/07/2023 Generally, i t is for the jury, the trier of fact to determine the legal cause of any injury (Aronson v. Horace MannBarnard School, 224 AD2d 249, £37 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 them.avant to make a prima facieshowing of an entitlement as a matter of law by offering evidence demonstrating the absence of any material issue of fact (Wineqrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]). Moreover, a tnovant cannot succeed upon a motion f·or summary judgement by pointing to gaps in the. opponents case because the moving party must affirmatively present evidence detnonstratingthe lack of any questions of fact (Velasquez v. Gomez, 4 4 AD3d 649, 8 4 3 NYS2d 368 [2d Dept.; 2007]). The ehtire case hing.es on whether the the departure of Wishful Thinking. lease continued upon The plaintiff concedes the email dated September 3, ·2020 terminated Mr, Berger's obligations und!':r the lease but that "of course, at no time did this absolve Def.endartt of his dwn rental obligi:l.tions, and his own personal .li:ability for the Wishful. Thinking Lease" (see, Aff.irmation of Joseph Schachter,. il2 [NYSCEF Doc. N.0. 29] ) . 3 [* 3] 3 of 5 Howev,er, there are INDEX NO. 513029/2023 FILED: KINGS COUNTY CLERK 09/07/2023 01:14 PM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/07/2023 surely questions of fact whether the acknowledgment the lease was terminated rendered it terminated as to the defendant as well. Indeed, it is difficult to imagine a lease that is terminated as to one party but remainsviaple to other parties. Further, the request the rental payments should be billed to a new entity not part of the original lease raises additional questions whether an entirely new lease was contemplated. There mere fact Mr. Tenenbaum was a guarantor of the original lease and also a member of the concern that assumed a new lease does not mean the original lease and its accompanying guaranty still bound the defendant. regard. In arty event, there are questions of fact in this In addition, the existence of an amendment to the lease w.h,ich was never executed. does not mean the parties reverted back to the original lease ahd the guaranty of the defendant. Rather; the amendment was intended to concretize a new lease entered between a new tenant. an These questions axe further supported by email sent by the defendant on October 3, 2020. During the negotiations regarding the new l.ease the defendant wrote ''can you please tell me what is [siCJ the Clause- "all other terms of the lease remain in full force" means. The lease expired and it was not personal to me" (see, Email dated October 3, 2020 sent 8:59 AM [NYSCEF b.oc. No. 37]). these facts demonsttate there ar~ s~griificant question~ regarding the status .of the new tenant and. any l.ease contemplated 4 [* 4] 4 of 5 INDEX NO. 513029/2023 FILED: KINGS COUNTY CLERK 09/07/2023 01:14 PM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/07/2023 by the parties. At this junctt1cre it cannot be said there are no questions of fact the defe.ndant must guaranty the lease payments in question. Theteforer the motion seeking summary judgement is denied. Turning to the motion seeking to amend the answer to assert a further .affirmative defense that the complaint must be dismissed based upon documentary evidence, it is well settled that a request to amend a pleading shall be freely given unless the proposed amendment would unfairly prejudice or surprise the opposing party, or is palpably insufficient or patently devoid of merit (Adduci v. 1829 Park Place LLC, 176 AD3d 658, 1Q7 NYS3d 690 [2d Dept.; 2019]). The affirmative defense is duplicative of the second affirmative defense which states that ''the Plaintiffi s acceptance of the primary lessee vacature [sic] along with that of its co-guarantor and acceptance of a new tenancy absolved the Defendant from liability rendering the guarantee void'' ( ~ , Proposed Amended Answer, 'JI20 [NY$.CEF Doc. No. 45]), Surely, in support of that defen:Se the de£endant will be abl.e to produce any documents thereby. Thus, the proposed affirmative defense is duplicative of an already existing defense. Therefore, thE:: motion seeking to amend the answer is denied . .So ordered. ENTER; DATED: September 11, 2023 Brqoklyn N.Y. ~bn. Leon Ruthelsmah .JSC 5 [* 5] 5 of 5

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