Chelsea Leasehold Owner LLC v Made by Franchetti LLC
Annotate this CaseDecided on May 26, 2023
Supreme Court, New York County
Chelsea Leasehold Owner LLC, Plaintiff,
against
Made by Franchetti LLC and LORENZO FRANCHETTI, Defendants.
Index No. 653370/2022
Golino Law Group PLLC, New York, NY (Brian W. Shaw of counsel), for plaintiff.
Barry J. Yellen Esq., New York, NY, for defendants.
Gerald Lebovits, J.
In this breach-of-contract action, plaintiff-landlord Chelsea Leasehold Owner LLC moves for default judgment under CPLR 3025 (c) and CPLR 3215 against defendant-tenant Made By Franchetti LLC and defendant-guarantor Lorenzo Franchetti. In opposition, guarantor argues that the lease agreement is null and void, and he seeks permission to file an answer within 20 days from the date of this court's order. Landlord's motion for default judgment is granted, and guarantor's request for an extension in time to answer is denied.
Landlord served defendants on September 27, 2022, under CPLR 311-a and CPLR 308 (1). (See NYSCEF Nos. 2, 3 [affidavits of service].) Defendants did not appear or respond within 20 days following service (October 17, 2022), as required by CPLR 320 (a). And landlord has satisfied its burden of proof under CPLR 3215 (f). It has submitted an affidavit from its agent (NYSCEF No. 6), copies of the lease and guaranty (NYSCEF No. 18), and a copy of tenant's rent ledger (NYSCEF No. 20).
On February 6, 2023, guarantor submitted an affidavit in opposition to landlord's motion. Guarantor's affidavit is filed twice under different docket numbers. This court assumes that [*2]guarantor did so with the intention of opposing the motion on tenant's behalf as well. Guarantor's affidavit, however, is signed only by him, without any reference to his attorney. This court must therefore construe the document as being submitted by guarantor pro se. But a corporation may not litigate pro se. Guarantor's affidavit is insufficient to constitute tenant's appearance in this action. Because tenant has not appeared, this court grants landlord's default-judgment motion as to tenant.
Guarantor's affidavit asserts that "[t]he lease herein does not exist and is not a legal contract as alterations were made to the lease." (NYSCEF No. 23 at ¶ 2.) Guarantor's allegations on this point, however, are unclear. To the extent that guarantor alleges that landlord copied guarantor's signature from the guaranty and pasted it into the lease, this court is unpersuaded. Guarantor's signatures on the guaranty and on the lease closely resemble one another; but they are not literally identical images, as would be the case were one merely a photocopy of the other.
Guarantor next asserts that Chelsea Leasehold Owner LLC was not the lessor who originally executed the lease "and the signature page was photocopied and pasted on the lease after the change in parties occurred." (Id. at ¶¶ 3-4.) But Chelsea Leasehold's name is included in multiple pages of the lease, not only on the signature page. (See NYSCEF No. 18 at 1, 2, 4.) Further, Chelsea Leasehold received assignment of the lease to the premises in January 2017—more than four years before the parties executed the lease agreement. (See NYSCEF No. 7 [assignment of net lease].) Guarantor does not submit any documentary evidence to refute landlord's proof that it assumed the lease.
Guarantor also alleges that landlord executed a new lease, before the lease at issue was terminated, with a third party who is currently occupying the premises. (NYSCEF No. 23 at ¶¶ 6-7.) But guarantor does not substantiate his claims with any documentary evidence. He does not submit proof of this purported "new lease," does not explain how he learned of its existence, and does not explain how he discovered that a third party was occupying the premises "as early as November 2022." (NYSCEF No. 23 at ¶ 6 [guarantor affidavit].)
Guarantor further claims that this court must deny landlord's motion because the premises was not fit for the purpose intended due to its insufficient electrical capacity. (Id. at ¶¶ 9-10, 11.) Again, guarantor does not substantiate his claim with any explanation or evidentiary support, such as by citing a provision in the lease providing for such a guarantee. And based on this court's review of the lease, no such provision exists.
This court concludes that guarantor's conclusory allegations—without more—are insufficient to challenge the lease's legitimacy.
Finally, guarantor requests that this court permit him to serve a late answer. (Id. at 14.) Under CPLR 3012 (d), "a trial court has the discretionary power to extend the time to plead, . . . provided that there is a showing of a reasonable excuse for the delay." (Emigrant Bank v Rosabianca, 156 AD3d 468, 472 [1st Dept 2017].) The section of guarantor's affidavit in which he makes his request does not include any arguments supporting his entitlement to an extension. In another section of his affidavit, however, guarantor asserts that landlord's service was improper because landlord did not also serve process on an address included in the lease. (See NYSCEF No. 18 at §§ 2.01, 21.05 [requiring that "any notice, demand, request or other instrument" to tenant also be sent to the office of Rosenberg & Estis, P.C.].) This court will assume for purposes of its CPLR 3012 (d) analysis that guarantor's excuse for failing to appear timely is landlord's purported improper service.
Guarantor may proffer his affidavit in opposition only on behalf of himself. Landlord, [*3]however, is required to send notices to the office of Rosenberg & Estis, P.C., only under the lease, not the guaranty. The guaranty, in contrast, directs that service of a summons and complaint be "made by certified mail directed to the undersigned at the address below set forth"—that address being guarantor's address (1 River Place, Apt 3811). (NYSCEF No. 18 at 36, 38.) Because landlord was under no obligation under the guaranty to send notice to Rosenberg & Estis, the fact that it did not do so does not excuse guarantor's failure to appear timely. This court denies guarantor's request to serve a late answer.
Landlord also seeks attorney fees in the amount of $5,614.28. (NYSCEF No. 4 [notice of motion].) Because this court grants landlord's default-judgment motion against defendants, this court also concludes that landlord is entitled to reasonable attorney fees. (See NYSCEF No. 18 at § 16.03 [lease agreement] [providing that, if either party commences litigation in connection with the lease, "the non-prevailing party in such litigation shall pay to the other party all expenses incurred therefor, including reasonable attorneys' fees upon presentation to the other party of detailed invoices and statements evidencing such costs"].) Landlord has submitted a detailed invoice of its attorney's legal fees (NYSCEF No. 15), based on which this court finds that the sum landlord requests is reasonable.
Accordingly, it is
ORDERED that plaintiff's motion for default judgment under CPLR 3025 (c) and CPLR 3215 is granted, and plaintiff is awarded a judgment for (i) $28,625.00, with interest running from October 1, 2022; plus (ii) $5,614.28 in attorney fees; plus (iii) costs and disbursements to be taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that defendant-guarantor's request to serve an answer is denied; and it is further
ORDERED that plaintiff shall serve a copy of this order with notice of its entry on defendants and on the office of the County Clerk, which shall enter judgment accordingly.
DATE 5/26/2023
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