Madison Sixty, LLC v. 27 Madison Ave. Corp.

2024 NY Slip Op 30769(U)

• Court: New York Supreme Court, New York County
• Decided: March 11, 2024
• Status: Unpublished

Opinion

Madison Sixty, LLC v 27 Madison Ave. Corp. 2024 NY Slip Op 30769(U) March 11, 2024 Supreme Court, New York County Docket Number: Index No. 156411/2020 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. [FILED: NEW YORK COUNTY CLERK 03/11/2024 04:52 P~ INDEX NO. 156411/2020 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 03/11/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 156411/2020 MADISON SIXTY, LLC, MOTION DATE 05/28/2021 Plaintiff, MOTION SEQ. NO. 001 - V - ORDER- 27 MADISON AVENUE CORP. and WILLIAM BYUN RESETTLED/AMENDED Defendants. (MOTION RELATED)

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The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,26,27,28,29, 30, 31, 32,33,34, 35, 36,37,38, 39, 40,41,42,43,44,45,46,47,48,49,50,51,52,53,54, 70 were read on this motion to/for JUDGMENT-SUMMARY

Upon the foregoing documents, it is

ORDERED that the Order of March 8, 2024, resolving motion

sequence 001 in this action is VACATED, RESETTLED, AND CORRECTED

pursuant to CPLR § 5019 (a) [see Kiker v Nassau County, 85 NY2d 879

(1995)] as follows:

ORDER

ORDERED that to the extent of dismissing the first through

and including eighth affirmative defenses interposed by defendant

27 Madison Avenue Corp in the answer, and as to liability on the

complaint as against defendant 27 Madison Avenue Corp only, the

motion of plaintiff for summary judgment is granted; and it is

further

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ORDERED the issue of damages to be assessed against defendant

27 Madison Avenue Corp shall be determined at the trial of this

action; and it is further

ORDERED that plaintiff's motion is otherwise denied, without

prejudice to applying for relief pursuant to CPLR 3025(c); and it

is further

ORDERED that to the extent of compelling discovery, the cross

motion of defendants 27 Madison Avenue Corp and William Byun is

granted; and it is further

ORDERED that the foregoing cross motion is otherwise denied,

without prejudice to seeking an amendment of the answer pursuant

to CPLR 3025(b), with proposed amended pleading clearly showing

the changes or additions to be made to such pleading; and it is

ORDERED that counsel are directed to post on NYSCEF a proposed

preliminary discovery conference order or competing proposed

preliminary discovery conference order(s) at least two days before

April 2, 2024, 12:10 PM, on which date and time counsel shall

appear via Microsoft Teams, unless such appearance be waived by

the court.

DECISION

With respect to the seventh and eighth affirmative

defenses, this court agrees with plaintiff that controlling case

law holds that such affirmative defenses of impossibility of

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performance and frustration of purpose, founded upon the COVID-

19 pandemic and related governmental shutdown, under the terms

of the Lease agreement at bar, lack merit. See The Gap, Inc. v

170 Broadway Retail Owner, LLC, 195 AD3d 575, 577-578 (1 st Dept

2021), and cases cited therein ("finding that the performance of

the lease was not rendered impossible by reduced revenues").

The first (failure to state a cause of action); second

(breach of lease); third (estoppel, waiver and avoidable

consequences) ( see Excel Graphics Tech, Inc v CFG/AGSCCB Ninth

Ave, LLC, 1 AD3d 65, 69 [1 st Dept 2003]); fourth (reletting of

premises); fifth (failure to mitigate damages) (see Syndicate

Building Corp v Lorber, 128 AD2d 381, 382 [1 st Dept 1987]); and

sixth (unclean hands) (see Manshion Joho Center Co, Ltd v

Manshion Joh Center, Inc, 24 AD3d 189, 190 [1 st Dept 2005])

affirmative defenses likewise lack merit, based on the Lease

terms, and/or evidence before this court on the instant motion,

and shall be dismissed.

However, plaintiff has neither alleged nor prima facie

established an account stated, as, for example, invoices,

beginning with statement for March 2021 rent state on their

faces "DO NOT MAIL" (NYSCEF Document Number 20). Thus, there

are issues of fact with respect to the amount of outstanding

rent. Finally, to the extent that plaintiff moves to amend its

complaint to seek ongoing rent, the court shall deny such

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relief, without prejudice to plaintiff moving to conform its

pleadings to the proof pursuant to CPLR 3025(c), before it rests

its case at any trial.

P- ~ fl - } ~ 20240311112904DJ AMESA42A85DSA55843EAA834FCF 13F AAA 17 4

3/11/2024 DATE DEBRA A. JAMES, 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

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