1998 Alexander Karten Annuity Trust v Chalaf

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1998 Alexander Karten Annuity Trust v Chalaf 2023 NY Slip Op 33870(U) October 30, 2023 Supreme Court, New York County Docket Number: Index No. 159481/2020 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. INDEX NO. 159481/2020 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/30/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DEBRA A. JAMES 59 Justice ----------------------------------------------------------------- ----------------X INDEX NO. THE 1998 ALEXANDER KARTEN ANNUITY TRUST, 159481/2020 MOTION DATE Plaintiff, 05/03/2023 MOTION SEQ. NO. 001 002 - V - DECISION + ORDER ON MOTION YANNIV CHALAF, Defendant. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,26 were read on this motion to/for STRIKE PLEADINGS The following e-filed documents, listed by NYSCEF document number (Motion 002) 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39,40,41 were read on this motion to/for JUDGMENT-SUMMARY ORDER Upon the foregoing documents it is, ORDERED and ADJUDGED that the motion of plaintiff THE 1998 ALEXANDER KARTEN complaint (motion sequence number 002) Clerk of plaintiff the and ANNUITY Court is against TRUST for directed to defendant in summary judgment on the herein is granted and the enter the judgment amount of in favor of $993,225.85, together with interest at the rate of 9% per annum from the date of this April 1, 2020, until the date of the decision and order on this motion, in the amount of$ -------- , for a total of$ and thereafter at the statutory rate, as calculated by the Clerk, together with costs and disbursements to be taxed by 159481/2020 1998 ALEXANDER KARTEN vs. CHALAF, YANNIV Motion No. 001 002 [* 1] 1 of 4 Page 1 of4 INDEX NO. 159481/2020 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/30/2023 the Clerk upon submission of an appropriate bill of costs; and it is further ORDERED that the second cause of action of the complaint seeking a declaratory judgment in plaintiff's favor is denied; and it is further ADJUDGED and DECLARED that Executive Order Section 8.202.28 (9 NYCRR 8.202.28), which concerns written rental agreements with respect to security deposits related to residential properties, is inapplicable to the action at bar; and it is further ADJUIDGED and DECLARED that, to the extent that the terms of the underlying lease or any other written agreement between the parties do not provide for the forfeiture of defendant's $40,000.00 security deposit and the application thereof to unpaid and outstanding rent, defendant does not forfeit such security deposit and such security deposit may not be applied to the unpaid and outstanding rent, after application of such amount that would cover any damages that defendant caused at the Subject Premises; and it is further ORDERED that the motion of the plaintiff THE 1998 ALEXANDER KARTEN ANNUITY TRUST to strike the defendant's failure to respond to discovery demands 001) for 2 of 4 his (motion sequence number is dismissed as moot. 159481/2020 1998 ALEXANDER KARTEN vs. CHALAF, YANNIV Motion No. 001 002 [* 2] answer Page 2 of 4 INDEX NO. 159481/2020 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/30/2023 DECISION The plaintiff THE 1998 ALEXANDER KARTEN ANNUITY TRUST "Trust") damages is granted summary for breach of a judgment on its complaint guaranty stemming from a (the seeking default on a commercial lease. The defendant YANNIV CHALAF ("Chalaf"), the guarantor, fails to raise a triable issue of fact to defeat the motion for summary judgment. personal Chalaf' s affidavit guarantor of (NYSCEF Doc. No. 34; ~ the 5). does not underlying contest lease that that is he is the in default Chalaf's argument that the enforcement of personal guarantees was suspended through March 31, 2021, is of no merit, as Chalaf fails to raise an issue of fact that under New York City Administrative Code § 22-1005, between March 7, 2020, and June 30, 2021, the underlying tenant, either: (a) ceased serving patrons food or beverage for onpremises consumption or to cease operation under executive order number 202.3 issued by the governor on March 16, 2020; or (b) was a non-essential retail establishment subject to in-person limitations under guidance issued by the New York state department of economic development pursuant to executive order number 202.6 issued by the governor on March 18, 2020; or (c) was required to close to members of the public under executive order number 202.7 issued by the governor on March 19, 2020. Defendant's summary judgment" "mere is hope of insufficient 159481/2020 1998 ALEXANDER KARTEN vs. CHALAF, YANNIV Motion No. 001 002 [* 3] 3 of 4 evidence to sufficient to avoid defeat plaintiff's motion Page 3 of 4 INDEX NO. 159481/2020 NYSCEF DOC. NO. 43 herein. RECEIVED NYSCEF: 10/30/2023 See State of New York ex rel Perkins v Cooke Center for Learning & Development, Inc, 164 AD3d 445, 446 (1 st Dept 2018) In light of the above, the Trust's motion to strike the answer for defendant's discovery violations (motion sequence number 001) is dismissed as moot. The court agrees with plaintiff that this court may take judicial notice of its own judgment in 1998 Alexander Karten Annuity Trust v NYC Auto, Inc., Index No 151514/2021, which was entered subsequent to the return date of the herein motion. Matter of Linda UU v Dana VV, 212 AD3d 906, 907 See (3d Dept 2023). On such basis, this court fixes the damages against Chalaf, the personal guarantor herein, in the amount of $993,225.85, based on the judgment issued after the inquest held in such related action commenced by the Trust against the underlying tenant (NYSCEF Doc. No. 40). JJ- ~ ,A - } ~ 20231030155430DJAMESE06205023EFC460080El794D609C86DF 10/30/2023 DATE CHECK ONE: DEBRA A. JAMES, J.S.C. CASE DISPOSED GRANTED NON-FINAL DISPOSITION DENIED SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 159481/2020 1998 ALEXANDER KARTEN vs. CHALAF, YANNIV Motion No. 001 002 [* 4] GRANTED IN PART APPLICATION: 4 of 4 OTHER REFERENCE Page4 of 4

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