69 Second Ave. LLC v. 87 E. 4th St. Rest., Inc.

2024 NY Slip Op 34218(U)

Opinion

69 Second Ave. LLC v 87 E. 4th St. Rest., Inc. 2024 NY Slip Op 34218(U) November 26, 2024 Supreme Court, New York County Docket Number: Index No. 655291/2020 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. 655291/2020 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 11/26/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 655291/2020 69 SECOND AVENUE LLC, MOTION DATE 06/01/2024 Plaintiff, MOTION SEQ. NO. 001 003 - V -

87 EAST 4TH ST. REST., INC.,VANESSA REALTY CORP., ORDER - AMENDED (MOTION 87 EAST 4TH STREET CO., INC., and SHLOMO MISHKIT RELATED) and DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X

Thefollowinge-fileddocuments, listed byNYSCEFdocumentnumber(Motion001)9, 10, 11, 12, 13, 14, 15, 16, 17, 18 were read on this motion to/for JUDGMENT - DEFAULT

The following e-filed documents, listed by NYSCEF document number (Motion 003) 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80 were read on this motion to/for JUDGMENT-SUMMARY

ORDER

Upon the foregoing documents,

It appearing to the court that plaintiff is entitled to

judgment on liability as to defendant Shlomo Mishkit and that the

only triable issues of fact arising on plaintiff's motion for

summary judgment as to such defendant relate to the amount of

damages to which plaintiff is entitled, it is

ORDERED that the motion is granted with regard to liability

as against defendant Shlomo Mishkit; and it is further

ORDERED that an immediate trial of the issues regarding

damages shall be had before the court; and it is further

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ORDERED that plaintiff shall, within forty-five (45) days

from entry of this order, serve a copy of this order with notice

of entry upon counsel for all parties hereto and upon the Clerk of

the General Clerk's Office and shall serve and file with such Clerk

a note of issue and statement of readiness and shall pay the fee

therefor, and such Clerk shall cause the matter to be placed upon

the calendar for such trial before the undersigned; and it is

further

ORDERED that such service upon the General Clerk's Office

shall be made in accordance with the procedures set forth in the

Protocol on Courthouse and County Clerk Procedures for

Electronically Filed Cases (accessible at the "E-Filing" page on

the court's website); and it is further

ORDERED that the Order of January 19, 2022 resolving motion

sequence number 001 in this action (NYSCEF Doc. No. 015) is

vacated, resettled and corrected, nunc pro tune, pursuant to CPLR

§ 5019 (a) [see Kiker v Nassau County, 85 NY2d 879 (1995)] as

follows:

Upon the foregoing documents, it is

ORDERED and ADJUDGED that plaintiff's motion is granted on

default and the inquest on damages, including rent and reasonable

attorneys' fees to be assessed against defendants 87 East 4 th St

Rest, Inc., Vanessa Realty Corp, and 87 East 4 th Street Co, Inc,

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shall take place at the trial of the assessment of damages against

defendant Mishkit.

DECISION

In this action for breach of commercial lease extension

agreement (NYSCEF Doc. No. 061, plaintiff 69 Second Avenue LLC (69

Second) moves for summary judgment against the defendant Shlomo

Mishkit ("Mishkit").

On December 8, 2005, the lease extension was executed by

Mishkit as President of 87 East 4th St. Rest., Inc., d/b/a Cucina

Di Pesce ("87 East") . However, in opposition to the motion at

bar, Mishkit contends that the wrong entity was listed on the lease

extension and that he is not personally responsible for the rent

due under the lease, "[d] espite technically being the owner on

paper", NYSCEF Document No 73, p. 2, Mishkit affirmation, para. 6.

Mishkit contention that co-defendant Vanessa Realty Corp ("VRC")

is the actual responsible party does not change the fact that he

entered into the lease extension as a signatory of a nonexistent

corporate entity. As argued by plaintiff, the records of the New

York State Secretary of State demonstrate that no such entity known

as 87 East ever existed. See NYSCEF Doc No 067, NYS Department of

State, Division of Corporations, Entity Search Results.

As a [principal] executing a contract on behalf of nonexistent corporate entities, defendant's personal liability under the agreements is presumed, and the plain language of the agreement here cannot be read to have absolved defendant of such personal liability.

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Geron v Amritraj, 82 AD3d 404, 405 (1st Dept 2011). See also

McDonald v McBain, 99 AD3d 436, 437 (1 st Dept 2012).

Mishkit's contention that VRC was the party that was operating

and benefitting from the restaurant is of no moment.

JJ- ~ ,ti - } ~ 20241126162905DJAMES4A4ACC2E2A0748AC941D846CD42F140E

11/26/2024 DATE DEBRA A. JAMES, J.S.C.

~ ~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

□ DENIED □ GRANTED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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