A.N. Figliolia LLC v Kletsman
Annotate this CaseDecided on July 3, 2023
Supreme Court, New York County
A.N. Figliolia LLC, Plaintiff,
against
Igor Kletsman and YELENA LYUTERSHTEYN, Defendants.
Index No. 654473/2022
Moss & Kalish, PLLC, New York, NY (David B. Gelfarb of counsel), for plaintiff.
Moses Law Office of New York, PLLC, New York, NY (Manuel Moses of counsel), for defendant Yelena Lyutershteyn.
No appearance for defendant Igor Kletsman. Gerald Lebovits, J.
This is an action to collect amounts allegedly owed in holdover use & occupancy (U&O) following the expiration of a residential lease, brought by plaintiff-landlord, A.N. Figliolia LLC, against defendant-tenant, Igor Kletsman, and his (ex)-wife, defendant-occupant Yelena Lyutershteyn.
On motion sequence 001, landlord moves for summary judgment against Kletsman. That motion is deemed withdrawn in light of the settlement of landlord's claims against Kletsman. On motion sequence 002, landlord moves for default judgment against Lyutershteyn; she cross-moves to compel landlord to accept her untimely answer. Landlord's motion is denied; Lyutershteyn's cross-motion is granted.
BACKGROUND
The lease at issue ran from June 1, 2021, through May 31, 2022, at a monthly rent of $10,500. The lease was entered into between landlord and Kletsman. (See NYSCEF No. 9 at 10, 14.) Lyutershteyn, although not a signatory to the lease, is a permitted occupant of the premises under the lease. (See id. at 13.) Kletsman vacated the premises when the lease expired on May 31, 2022. (NYSCEF No. 15 at ¶ 10.) Lyutershteyn held over in the premises, without paying rent or U&O, until November 25, 2022. (Id. at ¶ 2.)
Landlord brought this action against Kletsman and Lyutershteyn in November 2022. (NYSCEF No. 1.) Landlord served Kletsman in December 2022 (NYSCEF No. 3); he timely answered. (NYSCEF No. 4.) Landlord did not serve Lyutershteyn until February 2023. (NYSCEF No. 13.) She did not timely appear or answer.
In January 2023, landlord moved for summary judgment under CPLR 3212 against Kletsman (mot seq 001), seeking $75,500 in U&O for the period of Lyutershteyn's holdover, plus attorney fees. (See NYSCEF No. 5 [notice of motion] NYSCEF No. 6 [affirmation of counsel].) Kletsman did not oppose the motion. Landlord later represented that it had settled its claims against Kletsman for $60,500, with the final payment due on July 1, 2023. (NYSCEF No. 15 at ¶ 22.) The record does not reflect whether that final payment was made on schedule.
In April 2023, landlord moved for default judgment under CPLR 3215 against Lyutershteyn (mot seq 002). On this motion, landlord is seeking the difference between the $75,500 allegedly owed in U&O and the settlement payments met by Kletsman, plus attorney fees. (NYSCEF No. 15 at 5.)
This motion was initially made returnable on May 11, 2023. (NYSCEF No. 14 at 1.) The day before the return date, Lyutershteyn, acting pro se, sought and obtained an adjournment until June 12 to enable her to retain counsel. (See NYSCEF No. 25.) Counsel appeared for Lyutershteyn on June 6, 2023; and on June 9, 2023, she cross-moved to compel landlord to accept her late answer under CPLR 3012 (d).
DISCUSSION
This court addresses Lyutershteyn's CPLR 3012 (d) cross-motion first. The cross-motion is granted for the reasons set forth below. Given that disposition, landlord's default-judgment motion is denied.
Lyutershteyn's period of default—running at most from April 3 to June 6—is not long. Landlord does not contend that it was prejudiced by that delay; nor does this court perceive any potential prejudice. And shehas identified potentially meritorious defenses.
First, Lyutershteyn points out that the final settlement payment by Kletsman and the apartment's $12,000 security deposit (plus any interest on that deposit), will largely, or completely, cover her outstanding U&O obligations. (See NYSCEF No. 30 at ¶ 4 [party affidavit]; NYSCEF No. 9 at 5 ¶ 52, 10 [lease provisions about security deposit].) Landlord does not contend that it returned the security deposit to Kletsman upon the expiration of the lease; nor that landlord applied the deposit to any amounts owed in rent or U&O. Lyutershteyn's defense, essentially one of payment, is strengthened by the fact that landlord cannot, as it suggests, collect U&O for the portion of November 2022 that followed Lyutershteyn's vacating the apartment on November 25, 2022. (Compare NYSCEF No. 15 at 3-4 ¶ 19, 5 [seeking U&O running through [*2]November 30, 2022], with id. at 2 ¶ 12 [stating that Lyutershteyn vacated the apartment on November 25].)
Second, Lyutershteyn correctly contends (NYSCEF No. 28 at ¶ 4) that because she was not a signatory to the lease, she is not responsible for landlord's claim for attorney fees based on the lease. (See Oakdale Manor Owners, Inc. v Raimondi, 2015 NY Slip Op 51754[U], at *2 [App Term, 2d Dept Nov. 30, 2015]; 67-15 102nd St., L.L.C. v Whitman-Gross, 2014 NY Slip Op 50659[U], at *2 [App Term, 2d Dept Apr. 14, 2014].) Nor does landlord contend otherwise.
Given Lyutershteyn's brief, unprejudicial delay, and her potentially meritorious defenses, her CPLR 3012 motion is granted. (See Emigrant Bank v Rosabianca, 156 AD3d 468, 472-473 [1st Dept 2017] [describing factors to be considered by the court on a CPLR 3012 motion].)
Accordingly, it is
ORDERED that landlord's motion for summary judgment against defendant Kletsman (mot seq 001) is deemed withdrawn given the settlement between landlord and Kletsman; and it is further
ORDERED that landlord's motion for default judgment against defendant Lyutershteyn (mot seq 002) is denied; and it is further
ORDERED that Lyutershteyn's cross-motion under CPLR 3012 (d) to compel landlord to accept her untimely answer (mot seq 002) is granted, and Lyutershteyn's answer is deemed served and filed in the form appearing at NYSCEF No. 29; and it is further
ORDERED that the parties shall appear before this court for a telephonic conference on July 28, 2023.
DATE 7/3/2023Some 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.
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