36th HY LLC v Yan Rong Zhen 2026 NY Slip Op 30702(U) February 26, 2026 Supreme Court, New York County Docket Number: Index No. 159766/2021 Judge: Emily Morales-Minerva 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.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.1597662021.NEW_YORK.001.LBLX036_TO.html[03/10/2026 3:45:51 PM] FILED: NEW YORK COUNTY CLERK 02/27/2026 04:41 PM INDEX NO. 159766/2021 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/27/2026
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 42M X 36TH HY LLC INDEX NO. 159766/2021
Plaintiff, MOTION DATE 04/03/2025 - V - MOTION SEQ. NO. 001 YAN RONG ZHEN,
Defendant. DECISION+ ORDER ON MOTION X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,20,21,22 were read on this motion to/for JUDGMENT-SUMMARY
APPEARANCES:
Kueker Marino Winiarsky & Bittens, LLP, New York, New York (Michael Stephen Bennett, Esq., of counsel) for plaintiff.
HON. EMILY MORALES-MINERVA:
In this action for breach of a guaranty, plaintiff 36TH HY
LLC moves, by notice of motion (sequence number 01), for (1) an
order, pursuant to CPLR § 3212, granting it summary judgment
against defendant YAN RONG ZHEN; for (2) an order, pursuant to
CPLR § 3025 (c), amending the pleadings to conform them to the
proof; and for (3) an order, pursuant to CPLR § 3211 (b),
dismissing defendant's six affirmative defenses. Defendant does
not appear or submit opposition to the motion.
For the reasons set forth below, the motion (seq. no. 01) is
granted without opposition.
159766/2021 36TH HY LLC vs. ZHEN, YAN RONG Page 1 of 15 Motion No. 001
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BACKGROUND
Pursuant to a 10-year commercial lease agreement, plaintiff
36TH HY LLC (owner-landlord), as owner and landlord, leased the
ground floor retail space and mezzanine of 367 West 36th Street,
New York, New York 10008 (premises) to non-party tenant Zhen Dim
Sum LLC (tenant) (see New York State Court Electronic Filing
System [NYSCEF] Doc. No. 01, complaint; see also NYSCEF Doc. No.
12, commercial lease agreement, dated September 13, 2018).
On the same date the lease agreement was executed between
owner-landlord and tenant, defendant YAN RONG ZHEN (guarantor)
guaranteed tenant's obligations under the lease, including the
monetary obligations thereunder, pursuant to a separate
unconditional guaranty (see NYSCEF Doc. No. 01, complaint; see
also NYSCEF Doc. No. 14, limited personal lease guaranty, dated
and notarized on September 13, 2018 [the body of said guaranty
identifies the guarantor as defendant YAN RONG ZHEN, includes a
signature with said defendant's name in print, a witness, and an
endorsement of a notary public]).
Specifically, the guaranty provides, in part:
" [T] he undersigned ('Guarantor' ) , a shareholder of [non-party tenant], hereby jointly and severally personally guarantees to the Owner, its successors and assigns, the full and prompt payment of all annual rent and additional rental, as set forth in the Lease, and any and all other sums and 159766/2021 36TH HY LLC vs. ZHEN, YAN RONG Page 2 of 15 Motion No. 001
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charges payable by Tenant, its successors and assigns, under the Lease .
"[I]f tenant shall default in the payment or performance of any of the Obligations, Guarantor shall forthwith pay such amounts due and perform such other of the Obligations to and for Owner, its successors and assigns, including without limitation, all reasonable attorneys' fees and disbursements incurred by Owner in connection with or caused by any such default under the Lease and/or by the enforcement of this Guaranty.
"This Guaranty is an absolute and unconditional Guaranty of payment and of performance. It shall be enforceable against Guarantor, her successors and assigns, without necessity for any suit or proceedings on Owner's part against Tenant, its successors and assigns, and without the necessity of any notice of non-payment, non- performance, or of any other notice of demand to which Guarantor might otherwise be entitled, all of which Guarantor hereby expressly waives . .
"This Guaranty shall be a continuing Guaranty, and the liability of Guarantor hereunder shall in no way be affected, modified or diminished by reason of any . . . modification or extension of or under the Lease or by reason of any modification or waiver of or change in any of the terms of the Lease . "
(NYSCEF Doc. No. 14, limited personal lease guaranty).
Thereafter, On October 23, 2018, owner-landlord and non-
party tenant executed a modification of the lease, which, among
other things not relevant here, modified the amount of the
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annual base rent and security deposit (see NYSCEF Doc. No. 13,
first amendment to the lease, dated October 23, 2018).
At or around October of 2019, things began to sour between
non-party tenant and owner-landlord (see NYSCEF Doc. No. 01,
complaint). Specifically, non-party tenant ceased paying the
rent due under the lease, and guarantor failed to cover non-
party tenant's rent obligations (see id.; see also NYSCEF Doc.
No. 02, rent ledger). Consequently, owner-landlord commenced a
summary nonpayment proceeding against non-party tenant in the
Civil Court of the City of New York (see NYSCEF Doc. No. 17,
36th HY LLC v Zhen Dim Sum LLC, Index No. LT-050084-20/NY [filed
on or about January 20, 2020]).
In the meanwhile, while the summary nonpayment proceeding
remained pending, owner-landlord commenced this action against
guarantor for breach of the guaranty agreement, seeking payment
of rental arrears, additional rent, and attorneys' fees (see
NYSCEF Doc. No. 01, complaint, dated October 27, 2021).
Specifically, owner-landlord sought $204,420.45 in rent and
additional rent due, "and such further rent and additional rent
that accrues [] until the date of judgment", as well as
$42,977.34 in attorneys' fees (see id.).
Guarantor answered, asserting six affirmative defenses (see
NYSCEF Doc. No. 05, answer with affirmative defenses). The
defenses include (1) plaintiff's failure to perform under the 159766/2021 36TH HY LLC vs. ZHEN, YAN RONG Page 4 of 15 Motion No. 001
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lease with the non-party tenant; (2) plaintiff's refusal to sign
off on applications to the DOB, interfering with non-party
tenant's business; (3) lack of entitlement to attorneys' fees;
(4) plaintiff's failure to meet the conditions precedent to
payment, "i.e. performance under the contract"; (5) plaintiff's
refusal to sign documents necessary for non-party tenant to
complete construction at the premises; and (6) plaintiff's
unclean hands, in that plaintiff "knew his actions in refusing
to sign necessary documents for construction would prevent [non-
party] tenant from" operating its restaurant (see id.).
While this action remained pending, the summary nonpayment
action proceeded to trial in the Civil Court of the City of New
York, and concluded on November 30, 2024 (see NYSCEF Doc. No.
17, trial decision and order [36th HY LLC v Zhen Dim Sum LLC,
Index No. LT-050084-20/NY (Civ Ct, NY Cnty [S. Ally, A.J.S.C])
The court (S. Ally, A.J.S.C.) found in favor of owner-landlord,
and awarded a money judgment in the total amount of
$2,684,641.26 1 for unpaid rent, additional rent, and attorneys'
fees against non-party tenant (see NYSCEF Doc. No. 18, Civil
Court judgment, dated January 24, 2025 [36th HY LLC v Zhen Dim
1 The judgment provides, "IT IS ADJUDGED that possession of the premises be awarded to [owner-landlord] alone with a monetary judgment in the amount of $1,764,253.61 due through December 1, 2024, plus interest from January 20, 2020, the date of the petition, in the amount of $783,906.04, plus costs and disbursements in the amount of $135.00, plus legal fees in the amount of $136,346.61, for a total judgment of $2,684,641.26" (NYSCEF Doc. No. 18, civil court judgment [emphasis in original]). 159766/2021 36TH HY LLC vs. ZHEN, YAN RONG Page 5 of 15 Motion No. 001
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Sum LLC, Index No. LT-050084-20/NY (Civ Ct, NY Cnty [S. Ally,
A.J.S.C]). Thereafter, non-party tenant was evicted from the
premises (see NYSCEF Doc. No. 19, marshal's notice of legal
possession, dated March 07, 2025).
Now, owner-landlord moves for (1) an order, pursuant to
CPLR § 3212 [governing motions for summary judgment], granting
it summary judgment against defendant YAN RONG ZHEN; for (2) an
order, pursuant to CPLR § 3025 (c) [governing amendments to
conform the pleadings to the evidence], conforming the pleadings
to the proof to increase the damages sought against guarantor to
the amount awarded in Civil Court against non-party tenant; and
for (3) an order, pursuant to CPLR § 3211 (b), dismissing
defendant's six affirmative defenses.
Therein, owner-landlord contends entitlement to summary
judgment, arguing no triable issues of fact exist that guarantor
is liable to owner-landlord for the amount of the money judgment
entered in Civil Court (see NYSCEF Doc. No. 21, owner-landlord's
memorandum of law in support of instant motion) Specifically,
owner-landlord argues that the September 13, 2018 guaranty is
unconditional, clear and unambiguous, and guarantor has failed to
perform under said guaranty.
In support of its motion, owner-landlord submits the
affirmation of Justin Gorjian, managing agent of owner-landlord
and owner of the premises (NYSCEF Doc. No. 09); the deed to the 159766/2021 36TH HY LLC vs. ZHEN, YAN RONG Page 6 of 15 Motion No. 001
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premises (NYSCEF Doc. No. 11); the lease agreement entered into
between owner-landlord and tenant, dated September 13, 2018
(NYSCEF Doc. No. 12); the first amendment and modification to the
lease, dated October 23, 2018 (NYSCEF Doc. No. 13); the guaranty,
executed and notarized on September 13, 2018 (NYSCEF Doc. No. 14);
the Civil Court's decision and order issued pursuant to 36th HY
LLC v Zhen Dim Sum LLC, Index No. LT-050084-20/NY (NYSCEF Doc. No.
17); the Civil Court judgment issued pursuant to 36th HY LLC v
Zhen Dim Sum LLC, Index No. LT-050084-20/NY (NYSCEF Doc. No. 18);
the marshal's legal possession of the premises (NYSCEF Doc. No.
19); and attorneys' fees invoices (NYSCEF Doc. No. 20).
Though defendant continues to be represented by counsel in
this proceeding, defendant does not appear or submit opposition
to the motion (seq. no. 01).
ANALYSIS
"On a motion for summary judgment, the moving party must
'make a prima facie showing of entitlement to judgment as a
matter of law, tendering [evidentiary proof in admissible form]
to demonstrate the absence of any material issues of fact'"
(Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP,
26 NY3d 40, 49 [2015], quoting Alvarez v Prospect Hosp., 68 NY2d
320, 324 [1986]; Friends of Thayer Lake LLC v Brown, 27 NY3d 159766/2021 36TH HY LLC vs. ZHEN, YAN RONG Page 7of15 Motion No. 001
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1039, 1043 [2016] [stating the same principle]). It is black
letter law that such proof shall include the "affidavit" of a
person having personal knowledge of the facts, "a copy of the
pleadings" and "other available proof, such as depositions and
written admissions" (see CPLR § 3212 [bl).
"Once this burden is met, the burden shifts to the opposing
party to submit proof in admissible form sufficient to create a
question of fact requiring a trial" (Kershaw v Hospital for
Special Surgery, 114 AD3d 75, 82 [1st Dept 2013], citing Kesson
v Algaze, 84 NY2d 1019 [1995]; De Lourdes Torres v Jones, 26
NY3d 742, 763 [2016] [holding that if the moving party makes the
requisite showing, the non-moving party then has the burden "'to
establish the existence of [factual issues] which require a
trial of the action'"]).
With respect to establishing liability under a guaranty,
the proponent of said relief must demonstrate "the existence of
the guaranty, the underlying debt, and the guarantor's failure
to perform under the guaranty" (Cooperatieve Centrale
Raiffeisen-Boerenleenbank, B.A. v Navarro, 25 NY3d 485, 492
[2015]; 3 East 54th New York LLC v Chatiris, 225 AD3d 413 [1st
Dept 2024]).
In that regard, "[a] guaranty is a promise to fulfill the
obligations of another party, and is subject 'to the ordinary
principles of contract construction'" (Cooperatieve Centrale 159766/2021 36TH HY LLC vs. ZHEN, YAN RONG Page 8 of 15 Motion No. 001
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Raiffeisen-Boerenleenbank, B.A., 25 NY3d at 492; Wilson v 2600
Elmwood LLC, 236 AD3d 1213, 1214 [3d Dept 2025]). Under those
principles, "a written agreement that is complete, clear and
unambiguous on its face must be enforced according to the plain
meaning of its terms" (Greenfield v Philles Records, 98 NY2d
562, 569 [2002]).
Here, owner-landlord demonstrates its prima facie
entitlement to judgment as a matter of law in connection with
the guaranty. Owner-landlord submits proof of the existence of
the unconditional guaranty (NYSCEF Doc. No. 14, guaranty); the
underlying lease agreement (NYSCEF Doc. No. 12, lease) and debt
owed (NYSCEF Doc. No. 18, Civil Court judgment); and guarantor's
failure to make payment in accordance with the terms of the
guaranty (NYSCEF Doc. No. 09, affirmation of Joseph Gorjian,
managing agent for owner-landlord and owner of the premises
[stating that "to date, neither tenant nor guarantor has paid
any monies due under the judgment and the entire $2,684,641.26
remains due"]).
Specifically, the Civil Court judgment and order entered in
owner-landlord's favor against non-party tenant represents the
rent arrears owed through December 1, 2024, thereby establishing
the existence and amount of the debt owed (see NYSCEF Doc. No.
09 at 6). Further, managing agent and owner Joseph Gorjian
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attests to non-party tenant's failure to pay the amount due
under the January 24, 2025 Civil Court money judgment (see id.).
That unpaid judgment establishes guarantor's liability
pursuant to the express terms of the guaranty (see STl Realty
LLC v Carroll, 234 AD3d 510, 511 [1st Dept 2025] [holding "the
landlord submitted the Civil Court money judgment and orders
against the tenant [] representing all monies owed [] thus
establishing the guarantor's liability for the amounts of the
money judgment]; 27 W 72nd St. Note Buyer LLC v Terzi, 194 AD3d
630, 630-631 [1st Dept 2021]). It is well established that "a
guarantor is bound by a judgment resulting from a breach of a
lease they guaranteed, even if the guarantor was not a party to
the underlying action or proceeding" (Deco Towers Assoc., LLC v
Fisch, 219 AD3d 1245, 1246 [1st Dept 2023]; [holding that
"contrary to defendants' contention, they are bound by the
judgment that was entered in Civil Court as guarantors of the
tenant's obligation"]; see also Marina Towers Assoc., L.P. v Yu,
177 AD3d 469, 469 [1st Dept 2019] [stating the same
principles]).
Further, by failing to oppose the motion or otherwise
appear, guarantor has failed to raise any material, triable
issue of fact (Sears Holding Mgmt. Corp. v Rockaway Realty
Assocs., LP, 176 AD3d 433, 433 [1st Dept 2019] [holding: "as
defendants submitted no relevant admissible evidence in 159766/2021 36TH HY LLC vs. ZHEN, YAN RONG Page 10 of 15 Motion No. 001
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opposition to the motion, we affirm the granting of summary
judgment for breach of contract in plaintiff's favor"];
Zuckerman v City of New York, 49 NY2d 557, 560 [1980]).
Therefore, this court grants summary judgment to owner-landlord.
Likewise, guarantor's six affirmative defenses are stricken
and dismissed as a matter of law. The guaranty agreement
executed by guarantor is unconditional and absolute, and waives
the affirmatives defenses guarantor asserts in her answer (see
NYSCEF Doc. No. 14, guaranty, 1 4 ["This guaranty is an absolute and unconditional guaranty of payment"]; 1 8 ["Guarantor hereby waives all defenses which might be available to a surety"]).
Additionally, the affirmatives defenses all relate to non-party
tenant, and are not guarantor's defenses to assert (see I Bldg,
Inc. v Hong Mei Chung, 137 AD3d 478 [1st Dept 2016]) . 2
Even if guarantor did not waive her defenses pursuant to
the express language of the guaranty, the six affirmative
defenses would nonetheless be dismissed. Guarantor's
affirmative defenses consist of nothing more than bare legal
conclusions, and guarantor, in failing to oppose the instant
motion, presents no factual or legal basis for maintaining said
defenses (Chrysler East Building, LLC v Keenwawa, Inc., 217 AD3d
494, 494-495 [1st Dept 2023]; see also ConnectOne Bank v Legacy
2 Indeed, non-party tenant asserted many of the same affirmative defenses in the summary nonpayment proceeding, all of which were dismissed by the Civil Court (see NYSCEF Doc. No. 17). 159766/2021 36TH HY LLC vs. ZHEN, YAN RONG Page 11 of 15 Motion No. 001
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Builders/Developers Corp., 238 AD3d 632, 633 [1st Dept 2025]
["Supreme Court providently exercised its discretion when it
dismissed defendants' 11 affirmative defenses as 'only a bare
legal conclusion without supporting facts'"]}.
Next, the Court turns to the branch of owner-landlord's
motion seeking to conform the pleadings to the proof pursuant to
CPLR § 3025 (c} -- namely, the Civil Court money judgment
entered in favor of owner-landlord and against non-party tenant
-- so as to increase the amount of damages sought herein to
$2,684,641.26. "A motion to conform the pleadings to the proof
[pursuant to CPLR § 3025 (c}] 3 is a matter committed to the trial
court's sound discretion and, absent undue prejudice or
surprised, should be freely granted" (Paton v Weltman, 23 AD3d
895, 896 [3d Dept 2005], citing Murray v City of New York, 43
NY2d 400, 404-405 [1977]; see also Castor Petroleum, Ltd. v
Petroterminal de Panama, S.A., 90 AD3d 424 [1st Dept 2011]}.
Here, owner-landlord submits the Civil Court money judgment
entered against non-party tenant, which represents all monies
owed to owner-landlord (NYSCEF Doc. No. 18}. Pursuant to the
unambiguous language of the guaranty, guarantor promised to, in
the event of tenant's default, fulfill non-party tenant's
obligations under the lease, including the payment of rent,
3 CPLR § 3025 (c) provides, "The court may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just including the granting of costs and continuances." 159766/2021 36TH HY LLC vs. ZHEN, YAN RONG Page 12 of 15 Motion No. 001
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additional rent, and reasonable attorneys' fees incurred by
owner-landlord (see NYSCEF Doc. No. 14, guaranty). Accordingly,
owner-landlord is entitled to conform the pleadings to the proof
to increase the damages sought against guarantor to
$2,684,641.26, representing the unpaid rent, additional rent,
and attorneys' fees owed by non-party tenant and, by virtue of
the guaranty, by guarantor.
Further, amending the complaint to seek the full amount due
under the January 24, 2025 money judgment does not unduly
surprise or prejudice guarantor. Guarantor was on notice of her
obligation to pay these sums under both the express terms of
the guaranty and the complaint, which seeks "such further rent
and additional rent that accrues [] until the date of judgment"
(see Briarpatch Ltd., L.P. v Briarpatch Film Corp., 60 AD3d 585
[1st Dept 2009] [holding that "there was no showing of prejudice
or surprise from plaintiffs' delay in asserting new claims to
conform the complaint to the proof and to increase the ad damnum
clause"]). Notably, by failing to oppose or otherwise appear on
the instant motion, guarantor proffers no proof of prejudice.
Lastly, owner-landlord seeks to recover from guarantor the
attorneys' fees incurred in this action, which total $1,922.92
( ~ NYSCEF Doc. No. 21, memorandum of law, p 8; see also NYSCEF
Doc. No. 20, invoices). "Under the American Rule, a prevailing
party in litigation generally may not recover attorney's fees 159766/2021 36TH HY LLC vs. ZHEN, YAN RONG Page 13 of 15 Motion No. 001
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from the losing party . . . unless an award is authorized by
agreement between the parties, statute or court rule" (Sage
Sys., Inc. v Liss, 39 NY3d 27, 29 [2022], citing Hooper Assoc. v
AGS Computers, 74 NY2d 487, 491 [1989]). Here, paragraph three
of the guaranty expressly provides for the recovery of
"reasonable attorneys' fees incurred by [owner-landlord] in
connection with or caused by any such default under the Lease
and/or by the enforcement of this Guaranty" (NYSCEF Doc. No. 14,
guaranty [emphasis added]). Therefore, owner-landlord is
entitled to recover its reasonable attorneys' fees from
guarantor, and the Court shall direct an inquest to determine
the appropriate amount.
Accordingly, it is hereby
ORDERED that the motion (seq. no. 01) of plaintiff 36TH HY
LLC to amend the complaint to increase the damages sought in the
complaint to include all amounts due pursuant to the Civil Court
money judgment entered on January 24, 2025, is granted, without
opposition; it is further
ORDERED that the motion of plaintiff 36TH HY LLC for summary
judgment against defendant YAN RONG ZHANG is granted, without
ORDERED that the motion of plaintiff 36TH HY LLC to dismiss
defendant's YAN RONG ZHANG six affirmative defenses is granted,
without opposition; 159766/2021 36TH HY LLC vs. ZHEN, YAN RONG Page 14 of 15 Motion No. 001
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ORDERED the Clerk of Court is directed to enter judgment in
favor of plaintiff 36TH HY LLC and against defendant YAN RONG ZHANG
in the principal amount of $2,684,641.26; it is further
ORDERED that, within twenty days from the date of this
decision and order, plaintiffs shall serve a copy of this order
with notice of entry on defendant, as well as on the Clerk of
the Court, who shall enter judgment accordingly; it is further
ORDERED that a hearing on plaintiff's claim for attorneys'
fees shall be held on June 03, 2026 at 12:00 P.M., in Courtroom
574, located at 111 Centre Street, New York County Supreme
Court; and it is further
ORDERED that the Clerk of Court shall mark the file
accordingly.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
2/26/2026 DATE e~~~A-~~ EMILY MOi.ALES-MINERVA, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
159766/2021 36TH HY LLC vs. ZHEN, YAN RONG Page 15 of 15 Motion No. 001
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