234 W. 39th St., Inc. v Ayazmoon Fabric, Inc. 2024 NY Slip Op 31402(U) April 22, 2024 Supreme Court, New York County Docket Number: Index No. 153488/2022 Judge: Paul A. Goetz 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. 153488/2022 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 04/22/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ---------------------------------------------------------------------------------X INDEX NO. 153488/2022 234 WEST 39TH STREET, INC., MOTION DATE 12/19/2023 Plaintiff, MOTION SEQ. NO. 002 -v- AYAZMOON FABRIC, INC., UDDIN TAHER DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 56 were read on this motion to/for JUDGMENT - SUMMARY .
In this commercial landlord-tenant action, plaintiff-landlord moves for summary
judgment on its claims for breach of the lease, breach of the guaranty agreement, and for
attorneys’ fees, and moves to dismiss defendants’ affirmative defenses. Defendant Ayazmoon
Fabric Inc. is the tenant (the tenant, or Ayazmoon) and defendant Uddin Taher is the guarantor
(the guarantor, or Taher).
BACKGROUND
Plaintiff is the owner of the building located at 234 West 39th Street, New York, NY
10018. By lease dated November 1, 2018, plaintiff leased store 101 and the basement of the
building (the premises) to the tenant, with a lease term of December 1, 2018 through January 31,
2024 (NYSCEF Doc No 5). The lease was secured by a guaranty, executed by the guarantor on
November 14, 2018 (id.).
Plaintiff alleges that, in or around June of 2019, the tenant began defaulting on its
monthly rent payments and additional rent, making only sporadic payments until February 2020,
153488/2022 234 WEST 39TH STREET, INC. vs. AYAZMOON FABRIC, INC. ET AL Page 1 of 6 Motion No. 002
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when it stopped paying altogether (NYSCEF Doc Nos 1, 47). In November 2021, when the
tenant’s arrears reached $326,370.59, plaintiff drew from the tenant’s security deposit and served
the tenant with a notice to replenish the deposit. Because the tenant failed to replenish its security
deposit plaintiff served it with a notice to cure. The tenant failed to pay once again, and the
guarantor did not cure the default (NYSCEF Doc No 1). Defendants assert the following
affirmative defenses: (1) conditions exist in the building which entitle the tenant to a rent
abatement; (2) no lease controls the duties and obligations of defendants because the space that
the tenant currently occupies is smaller than that agreed to in the lease; (3) the rent demanded is
inaccurate for the same reason; (4) plaintiff agreed to waive rent during the pandemic; and (5)
plaintiff’s claims are barred by doctrines of waiver, estoppel, unclean hands, and ratification
(NYSCEF Doc No 5).
Plaintiff now moves for summary judgment as against Ayazmoon for breach of the lease
and for attorneys’ fees, and as against Taher for breach of the guaranty agreement and for
attorneys’ fees (NYSCEF Doc No 47). It also moves to dismiss defendants’ affirmative defenses
on the grounds that they are conclusory, devoid of factual support, mere conclusions of law, and
contradicted by the guarantor’s own admissions (id.). Defendants oppose the motion on the
grounds that genuine material issues of fact remain (NYSCEF Doc No 48). Specifically, they
allege that the tenant never actually took possession of store 101 and the basement because the
space was occupied at the start of the lease term. Instead, plaintiff moved into store 102, which is
in the same building but markedly smaller than store 101,1 with the understanding that plaintiff
1 In the guarantor’s deposition, which was not submitted on this motion, Taher does not discuss store 101 and 102 as such. Rather, he asserts that he never moved into the storefront at 234 W 39 th Street at all, and instead moved in at 240 W 39th Street. While there, he states that he operated a store called “Fabrics A&N,” reserving the name “Ayazmoon” for when he settled in at the correct address (NYSCEF Doc No 43, 31:25-32:12). It is unclear from the record whether store 102 and 240 W 39 th Street are one in the same, as the two addresses—240 and 234 W 39th Street—appear to be assigned to one building. 153488/2022 234 WEST 39TH STREET, INC. vs. AYAZMOON FABRIC, INC. ET AL Page 2 of 6 Motion No. 002
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would pay to relocate the business to the premises once it was available, but that never occurred.
Thus, while defendants concede that rent is due for store 102, a trial is needed to determine the
amount owed. Defendants do not address that part of plaintiff’s motion seeking to dismiss their
affirmative defenses. In reply, plaintiff argues that its motion to dismiss should be granted as
unopposed (NYSCEF Doc No 56). Plaintiff also asserts that its motion for summary judgment
should be granted because defendants’ factual assertions that they occupied store 102 as opposed
to store 101 are false and unsupported, and therefore do not raise an issue of fact.
DISCUSSION
Summary Judgment
“It is well settled that ‘the proponent of a summary judgment motion must make a prima
facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to
demonstrate the absence of any material issues of fact.’” (Pullman v Silverman, 28 NY3d 1060,
1062 [2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). “Once such a prima
facie showing has been made, the burden shifts to the party opposing the motion to produce
evidentiary proof in admissible form sufficient to raise material issues of fact which require a
trial of the action.” (Cabrera v Rodriguez, 72 AD3d 553, 553-554 [1st Dept 2010], citing Alvarez,
68 NY2d at 342). The evidence presented in a summary judgment motion must be examined “in
the light most favorable to the non-moving party” (Schmidt v One New York Plaza Co., 153
AD3d 427, 428 [2017], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]) and
bare allegations or conclusory assertions are insufficient to create genuine issues of fact (Rotuba
Extruders v Ceppos, 46 NY2d 223, 231 [1978]). If there is any doubt as to the existence of a
triable fact, the motion for summary judgment must be denied (id.).
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i. Causes of Action Against the Tenant
Plaintiff has established its entitlement to judgment as a matter of law on its breach of
lease claim as against the tenant. The lease obligates the tenant to pay monthly rent payments
and additional rent (NYSCEF Doc No 45), yet the tenant failed to do so for many months
(NYSCEF Doc No 46). Defendants do not deny this. Instead, they allege that the tenant was
never in possession of the leased premises, occupying store 102 instead.2 However, even if true,
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234 W. 39th St., Inc. v Ayazmoon Fabric, Inc. 2024 NY Slip Op 31402(U) April 22, 2024 Supreme Court, New York County Docket Number: Index No. 153488/2022 Judge: Paul A. Goetz 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. 153488/2022 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 04/22/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ---------------------------------------------------------------------------------X INDEX NO. 153488/2022 234 WEST 39TH STREET, INC., MOTION DATE 12/19/2023 Plaintiff, MOTION SEQ. NO. 002 -v- AYAZMOON FABRIC, INC., UDDIN TAHER DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 56 were read on this motion to/for JUDGMENT - SUMMARY .
In this commercial landlord-tenant action, plaintiff-landlord moves for summary
judgment on its claims for breach of the lease, breach of the guaranty agreement, and for
attorneys’ fees, and moves to dismiss defendants’ affirmative defenses. Defendant Ayazmoon
Fabric Inc. is the tenant (the tenant, or Ayazmoon) and defendant Uddin Taher is the guarantor
(the guarantor, or Taher).
BACKGROUND
Plaintiff is the owner of the building located at 234 West 39th Street, New York, NY
10018. By lease dated November 1, 2018, plaintiff leased store 101 and the basement of the
building (the premises) to the tenant, with a lease term of December 1, 2018 through January 31,
2024 (NYSCEF Doc No 5). The lease was secured by a guaranty, executed by the guarantor on
November 14, 2018 (id.).
Plaintiff alleges that, in or around June of 2019, the tenant began defaulting on its
monthly rent payments and additional rent, making only sporadic payments until February 2020,
153488/2022 234 WEST 39TH STREET, INC. vs. AYAZMOON FABRIC, INC. ET AL Page 1 of 6 Motion No. 002
1 of 6 [* 1] INDEX NO. 153488/2022 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 04/22/2024
when it stopped paying altogether (NYSCEF Doc Nos 1, 47). In November 2021, when the
tenant’s arrears reached $326,370.59, plaintiff drew from the tenant’s security deposit and served
the tenant with a notice to replenish the deposit. Because the tenant failed to replenish its security
deposit plaintiff served it with a notice to cure. The tenant failed to pay once again, and the
guarantor did not cure the default (NYSCEF Doc No 1). Defendants assert the following
affirmative defenses: (1) conditions exist in the building which entitle the tenant to a rent
abatement; (2) no lease controls the duties and obligations of defendants because the space that
the tenant currently occupies is smaller than that agreed to in the lease; (3) the rent demanded is
inaccurate for the same reason; (4) plaintiff agreed to waive rent during the pandemic; and (5)
plaintiff’s claims are barred by doctrines of waiver, estoppel, unclean hands, and ratification
(NYSCEF Doc No 5).
Plaintiff now moves for summary judgment as against Ayazmoon for breach of the lease
and for attorneys’ fees, and as against Taher for breach of the guaranty agreement and for
attorneys’ fees (NYSCEF Doc No 47). It also moves to dismiss defendants’ affirmative defenses
on the grounds that they are conclusory, devoid of factual support, mere conclusions of law, and
contradicted by the guarantor’s own admissions (id.). Defendants oppose the motion on the
grounds that genuine material issues of fact remain (NYSCEF Doc No 48). Specifically, they
allege that the tenant never actually took possession of store 101 and the basement because the
space was occupied at the start of the lease term. Instead, plaintiff moved into store 102, which is
in the same building but markedly smaller than store 101,1 with the understanding that plaintiff
1 In the guarantor’s deposition, which was not submitted on this motion, Taher does not discuss store 101 and 102 as such. Rather, he asserts that he never moved into the storefront at 234 W 39 th Street at all, and instead moved in at 240 W 39th Street. While there, he states that he operated a store called “Fabrics A&N,” reserving the name “Ayazmoon” for when he settled in at the correct address (NYSCEF Doc No 43, 31:25-32:12). It is unclear from the record whether store 102 and 240 W 39 th Street are one in the same, as the two addresses—240 and 234 W 39th Street—appear to be assigned to one building. 153488/2022 234 WEST 39TH STREET, INC. vs. AYAZMOON FABRIC, INC. ET AL Page 2 of 6 Motion No. 002
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would pay to relocate the business to the premises once it was available, but that never occurred.
Thus, while defendants concede that rent is due for store 102, a trial is needed to determine the
amount owed. Defendants do not address that part of plaintiff’s motion seeking to dismiss their
affirmative defenses. In reply, plaintiff argues that its motion to dismiss should be granted as
unopposed (NYSCEF Doc No 56). Plaintiff also asserts that its motion for summary judgment
should be granted because defendants’ factual assertions that they occupied store 102 as opposed
to store 101 are false and unsupported, and therefore do not raise an issue of fact.
DISCUSSION
Summary Judgment
“It is well settled that ‘the proponent of a summary judgment motion must make a prima
facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to
demonstrate the absence of any material issues of fact.’” (Pullman v Silverman, 28 NY3d 1060,
1062 [2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). “Once such a prima
facie showing has been made, the burden shifts to the party opposing the motion to produce
evidentiary proof in admissible form sufficient to raise material issues of fact which require a
trial of the action.” (Cabrera v Rodriguez, 72 AD3d 553, 553-554 [1st Dept 2010], citing Alvarez,
68 NY2d at 342). The evidence presented in a summary judgment motion must be examined “in
the light most favorable to the non-moving party” (Schmidt v One New York Plaza Co., 153
AD3d 427, 428 [2017], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]) and
bare allegations or conclusory assertions are insufficient to create genuine issues of fact (Rotuba
Extruders v Ceppos, 46 NY2d 223, 231 [1978]). If there is any doubt as to the existence of a
triable fact, the motion for summary judgment must be denied (id.).
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i. Causes of Action Against the Tenant
Plaintiff has established its entitlement to judgment as a matter of law on its breach of
lease claim as against the tenant. The lease obligates the tenant to pay monthly rent payments
and additional rent (NYSCEF Doc No 45), yet the tenant failed to do so for many months
(NYSCEF Doc No 46). Defendants do not deny this. Instead, they allege that the tenant was
never in possession of the leased premises, occupying store 102 instead.2 However, even if true,
this does not raise a material issue of fact because the lease gives plaintiff the right to substitute
store 102 for store 101 and, “[n]otwithstanding such substitution of space, [] all the terms,
provisions, covenants and conditions contained in this Lease shall remain and continue in full
force and effect” (NYSCEF Doc No 45, § 63). Nevertheless, while the tenant’s liability for
breach of the lease has been established, plaintiff has failed to establish the sum certain it seeks
because the ledger submitted does not trace back to a zero-sum balance (NYSCEF Doc No 46).
Accordingly, the part of plaintiff’s motion seeking summary judgment as to the tenant’s breach
of the lease will be granted, and a trial will be held to determine the amount owed.
Under the terms of the lease, the tenant is now also liable to plaintiff for attorneys’ fees it
incurred in bringing this action. The lease provides that “if Owner, in connection [] with any
default by Tenant . . ., makes any expenditures or incurs any obligations for the payment of
money, including but not limited to reasonable attorney’s fees . . . such sums so paid [] shall be
deemed to be additional rent hereunder” (NYSCEF Doc No 45, § 17). Accordingly, the part of
plaintiff’s motion seeking an award of attorneys’ fees as against the tenant will be granted, and
the amount owed will also be determined at trial.
2 Notably, the only document submitted in support of this claim is an affidavit executed by the guarantor (NYSCEF Doc No 49). Defendants do not provide, for instance, written communications regarding the substitution, photos or other evidence indicating that the tenant occupied store 102, or details as to which business was purportedly occupying store 101 as of the start of the lease term. 153488/2022 234 WEST 39TH STREET, INC. vs. AYAZMOON FABRIC, INC. ET AL Page 4 of 6 Motion No. 002
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ii. Causes of Action Against the Guarantor
The viability of plaintiff’s causes of action against the guarantor depends on the
enforceability of NYC Admin Code § 22-1005 (the guaranty law), which renders guarantees for
commercial leases for non-essential retail establishments impacted by the pandemic
unenforceable where the default wholly or partially occurred between March 7, 2020 and June
30, 2021. The constitutionality of the guaranty law is currently being litigated in 513 W. 26th
Realty LLC v George Billis Galleries, Inc., Index No 160266/2020. Accordingly, the part of
plaintiff’s motion seeking summary judgment on its claims of breach of the guaranty and for
attorneys’ fees will be denied as against the guarantor, with leave to renew upon the First
Department’s final determination in 513 W. 26th Realty LLC.
Motion to Dismiss
Plaintiff is entitled to have all of defendants’ affirmative defenses dismissed since
plaintiff is correct that each one is conclusory, unsupported by facts, or otherwise meritless
(NYSCEF Doc No 47). In opposition, defendants failed to demonstrate why the affirmative
defenses should not be dismissed, or to even address them (NYSCEF Doc No 48) (Starkman v
City of Long Beach, 106 AD3d 1076, 1078 [2nd Dept 2013] [the “affirmative defenses must be
dismissed on the ground that the defendants did not oppose the dismissal of those affirmative
defenses”]; Tesser v Allboro Equip. Co., 302 AD2d 589, 591 [2nd Dept 2003] [“The Supreme
Court erred in declining to dismiss the affirmative defense [because it] overlooked the absence of
any opposition to that branch of the plaintiff’s [] motion which was to dismiss the defense”]). In
any event, the five affirmative defenses should be dismissed for only “plead[ing] conclusions of
law without supporting facts” (170 W. Vil. Assoc. v G & E Realty, Inc., 56 AD3d 372, 372 [1st
Dept 2008]; Bd. of Managers of Ruppert Yorkville Towers Condominium v Hayden, 169 AD3d
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569, 569, 94 N.Y.S.3d 59 [1st Dept 2019] [“affirmative defenses were correctly dismissed on the
ground that they were pleaded conclusorily”]; Griffin v Gould, 131 AD2d 432 [2nd Dept 1987]
[affirming dismissal where “defendants failed to set forth in their opposition papers any facts
supporting the defenses”]). Accordingly, the part of plaintiff’s motion seeking to dismiss
defendants’ affirmative defenses will be granted.
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that the part of plaintiff’s motion seeking summary judgment on its claims
for breach of the lease and attorneys’ fees is granted as against defendant tenant Ayazmoon; and
it is further
ORDERED that a trial on damages will be held after the filing of the note of issue in this
action; and it is further
ORDERED that the part of plaintiff’s motion seeking summary judgment on its claims
for breach of the guaranty and attorneys’ fees is dismissed as against the guarantor, with leave to
renew pending the First Department’s final determination of 513 W. 26th Realty LLC v George
Billis Galleries, Inc., Index No 160266/2020; and it is further
ORDERED that the part of plaintiff’s motion seeking dismissal of all five of defendants’
affirmative defenses is granted.
4/22/2024 DATE PAUL A. GOETZ, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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