Mark Propco LLC v. Jackson

2024 NY Slip Op 33646(U)

• Court: New York Supreme Court, New York County
• Decided: October 11, 2024
• Docket: Index No. 157316/2021
• Status: Unpublished

Opinion

Mark Propco LLC v Jackson 2024 NY Slip Op 33646(U) October 11, 2024 Supreme Court, New York County Docket Number: Index No. 157316/2021 Judge: Alexander M. Tisch 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. 157316/2021 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 10/15/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ALEXANDER M. TISCH PART 18 Justice -------------------------------------------------------------------X INDEX NO. 157316/2021 MARK PROPCO LLC 11/29/2021, Plaintiff, MOTION DATE 06/20/2022

- V - MOTION SEQ. NO. 001 002

LISA JACKSON AKA LISA M. CALICCHIO, DECISION + ORDER ON Defendant. MOTION

·-----------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 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, 55,56, 57, 58,64,65,66,67,68,69, 72, 73, 75, 77, 78, 79, 81, 82 were read on this motion to/for DISMISSAL

The following e-filed documents, listed by NYSCEF document number (Motion 002) 59, 60, 61, 62, 63, 70, 71, 74 were read on this motion to/for DISMISSAL

I. BACKGROUND

According to the complaint, plaintiff Mark Propco, LLC, owns the building located at 25

East 77th Street, New York, New York 10075. On April 5, 2012, plaintiff entered into a lease

agreement with Phoenix Roze NY, Inc. (Phoenix), pursuant to a lease agreement (the 2012

Lease) for the ground floor retail space in that building (the Premises). By assignment and

assumption of the lease pursuant to a written document dated June 23, 2014 (the First

Assignment) Phoenix assigned the 2012 Lease of the Premises to The Mark Retail Management

LLC. On the same date, The Mark Retail Management LLC signed an assignment, assumption,

and modification of the 2012 Lease and the First Assignment pursuant to a written agreement

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(the Second Assignment, and together with the 2012 Lease and the First Assignment, the Lease

Documents) and assigned the lease of the Premises to LJ Cross LLC (Tenant).

In April of 2020, after the start of the COVID-19 pandemic, tenant LJ Cross failed to pay

the base rent owed to Propco under the lease. Propco applied $26,522.50 of the Tenant's

security deposit to cover the April base rent. Tenant failed to pay base rent for May through

November of 2020. Propco took a second $26,522.50 from the security deposit to cover the May

base rent, and the remaining funds from the Tenant's security deposit, totaling $98,000.00, to

apply towards the outstanding base rent from June through November. Plaintiff Propco asked

Tenant to replenish the security deposit, but Tenant did not send additional funds. Tenant still

has possession of the Property but has not paid further base rent. Plaintiff claims Tenant owed

$589,701.28 as of the filing of the complaint.

Plaintiff brings this action pursuant to a guaranty agreement dated June 13, 2014 (the

Guaranty), signed by the defendant Lisa Jackson a/k/a Lisa M. Calicchio. Plaintiff alleges that

pursuant to the Guaranty, defendant unconditionally guaranteed the obligations of LJ Cross LLC

under the Second Assignment (which included all the obligations under the original lease, as

modified, assigned and assumed by the Second Assignment) (NYSCEF Doc No. 55 at ,r 22).

Plaintiff asserts six causes of action against Jackson: ( 1) seeking a declaratory judgment that the

New York City Administrative Code § 22-1005 (the Guaranty Law) is unconstitutional; (2)

seeking a declaratory judgment as to whether the Guaranty Law provides for a postponement or

the extinguishing of liability for guarantors; (3) and (4) for breach of contract seeking rental

arrears; (5) for rents not paid after the filing of this action; and (6) attorneys' fees and

disbursements. Defendant's position is that the Guaranty executed by defendant on June 14,

2014, only mentions a June 2014 lease with LJ Cross LLC (see NYSCEF Doc No. 9 at 2-3).

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Defendant contends she did not guaranty the 2012 Lease to Phoenix, which plaintiff seeks to

enforce in this action.

Now, in Motion Sequence Number 001, defendant moves to dismiss the complaint

pursuant to CPLR § 3211. Plaintiff cross-moves to convert the motion to dismiss to a motion for

summary judgment, for leave to amend the complaint, and for summary judgment. In Motion

Sequence 002, defendant again moves to dismiss the first and second causes of action, which are

related to whether the Guaranty Law is constitutional and how it ought to be interpreted. The

motions will be considered together.

II. CROSS MOTION TO TREAT MOTION SEQUENCE 001 AS A MOTION FOR SUMMARY JUDGMENT

Plaintiff's request to convert defendant's motion to dismiss into one for summary

judgment pursuant to CPLR § 3 211 ( c) is denied. CPLR § 3211 (c) allows the court, on notice to

the parties, to treat a motion pursuant to CPLR § 3211 as a motion for summary judgment

pursuant to CPLR § 3212. The Court has not chosen to do so here. Even without court notice,

motions to dismiss may be converted to summary judgment where there is an implicit or explicit

joint request by the parties (see Hendrickson v Philbor Motors, Inc., l 02 AD3d 251, 258 [2d

Dept 2012]). Here, however, defendant opposes plaintiff's request for conversion, rather than

proceeding in a manner consistent with a summary judgment. Therefore, the motion will be

considered as a motion to dismiss. Accordingly, the portion of plaintiff's cross-motion

requesting a hearing on its attorneys' fees is also denied without prejudice to making this request

later.

III. PLAINTIFF'S CROSS-MOTION FOR LEA VE TO AMEND

While CPLR § 3025(a) allows amendment of a pleading without leave of court "at any

time before the period for responding to it expires." Plaintiff's request for leave to amend the

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complaint pursuant to CPLR § 3025 is denied without prejudice. CPLR § 3025 (b) requires a

party seeking to amend a pleading to include "the proposed amended or supplemental pleading

clearly showing the changes or additions to be made to the pleading." Plaintiff explains it wishes

to update the alleged damages in the complaint, but not whether that would require additional

allegations, or if plaintiff merely wishes to change the numbers in the various claims. Therefore,

while the time to amend as of right has not yet run, the motion to amend fails.

IV. DEFENDANT'S MOTIONS TO DISMISS

A. Based on Documentary Evidence (001)

To succeed on a motion to dismiss pursuant to CPLR § 3211 (a) (1 ), the documentary

evidence submitted that forms the basis of a defense must resolve all factual issues and

definitively dispose of the plaintiffs claims (see 511 W 232 nd Owners Corp. v Jenn(fer Realty

Co., 98 NY2d 144, 152 [2002]; Blonder & Co., Inc. v Citibank, NA., 28 AD3d 180, 182 [Pt

Dept 2006]). A motion to dismiss pursuant to CPLR § 3211 (a) (1) "may be appropriately

granted only where the documentary evidence utterly refutes plaintiffs factual allegations,

conclusively establishing a defense as a matter of law" (McCully v. Jersey Partners, Inc., 60

AD3d 562, 562 (1 st Dept. 2009]). The facts as alleged in the complaint are regarded as true, and

the plaintiff is afforded the benefit of every favorable inference (see Leon v Martinez, 84 NY2d

83, 87-88 [1994]). Allegations consisting of bare legal conclusions as well as factual claims

flatly contradicted by documentary evidence are not entitled to any such consideration (see e.g.

Nisari v Ramjohn, 85 AD3d 987, 989 [2nd Dept 2011]).

CPLR § 3211 (a) (1) does not explicitly define "documentary evidence." As used in this

statutory provision, '"documentary evidence' is a 'fuzzy term', and what is documentary

evidence for one purpose, might not be documentary evidence for another" (Fontanetta v John

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Doe 1, 73 AD3d 78, 84 [2nd Dept 2010]). "[T]o be considered 'documentary,' evidence must be

unambiguous and of undisputed authenticity" (id. at 86, citing Siegel, Practice Commentaries,

McKinney's Cons. Laws ofN.Y., Book 7B, CPLR § 3211:10, at 21-22). Typically that means

"judicial records, as well as documents reflecting out-of-court transactions such as mortgages,

deeds, contracts, and any other papers, the contents of which are 'essentially undeniable,'" (id.

at 84-85). Here, the documentary evidence is the Lease Documents and the Guaranty.

Defendant contends that the plaintiff is seeking to enforce the 2012 Lease to Phoenix, which was

not covered by the defendant's Guaranty.

In support of her motion to dismiss, defendant attaches a copy of the Guaranty (attached as

exhibit B to defense counsel's affirmation, NYSCEF Doc No. 13). In the Guaranty, defendant

agrees to guaranty payment of base rent and performance of other obligations by the tenant

pursuant to the "Lease," defined as the "certain assignment and assumption of that certain

agreement of lease, dated as of June _ , 2014" (sic). Therefore, defendant contends that while

the Guaranty may be a guaranty of "a lease dated June 2014 with LJ Cross LLC" (Memorandum

of Law, NYSCEF Doc. No. 9, at 6), which may be the Second Assignment, there are no

allegations about a 2014 lease being in default and the Guaranty does not mention the Original

Lease or Phoenix.

The Guaranty does not utterly refute plaintiff's factual allegations here. Plaintiff is suing

pursuant to the Lease Documents, which includes the Second Assignment, which may be the

June 2014 lease referred to in the Guaranty. The court notes that the parties also produced

different versions of the Guaranty (compare NYSCEF Doc No. 13 and NYSCEF Doc No. 44),

which raises a fundamental question as to the authenticity or validity of the document (see Lee v

Royer Grimblat, 228 AD3d 576,577 [1st Dept 2024] [dismissal appropriate only where

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authenticity and validity of documentary evidence is undisputed]; VXI Lux Holdco SA. R. L., 171

AD3d at 193 [on a motion pursuant to CPLR § 3211 (a) (1) the contents of the documentary

evidence must be unambiguous, authentic, and undeniable]). Therefore, the portion of the

motion to dismiss based on documentary evidence fails.

B. Failure to State a Claim and the NYC Administrative Code (001)

Defendant also contends the complaint fails to state a claim for which relief can be

granted pursuant to CPLR § 321 l(a)(7) because the New York City Administrative Code

§ 22-1005 (the Guaranty Law) makes the Guaranty unenforceable. Plaintiff has provided an

affidavit of service of notice on New York City as required by CPLR § 1012 (NYSCEF Doc. No.

17). New York City chose not to intervene.

Plaintiff argues the Guaranty Law is unconstitutional as it is overbroad, permanently

extinguishes fundamental contractual rights of the landlord, and was not reasonable and

necessary. After the submission of the motion papers, a federal court in the Southern District of

New York held the Guaranty Law violated the Contracts Clause of the United States Constitution

(Melendez v City of New York, 668 F Supp 3d 184 [SD NY 2023]). Among the reasons for the

District Court's conclusion were that the law did not consider need (such as a hardship

requirement for guarantors) and that the City did not "justify its decision to exclusively allocate

the burden on landlords" (id. at 204). That Court also noted this law did not delay the

guarantor's obligations but extinguished the obligation to pay for rent arrears incurred during the

relevant period (id. at 200). No definitive decision by a New York appellate court has been

rendered as to the constitutionality of the Guaranty Law. Melendez is instructive, but not binding

on this court (see People v Kin Kan, 78 NY2d 54, 60 [1991]). However, several other trial courts

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have adopted the reasoning of Melendez that the Guaranty Law is unconstitutional. 1 (See Mark

Propco LLC v Naro, 2023 NY Slip Op 33068 [U] , *2-3 [Sup Ct, NY County 2023]; Kensington

House NY LLC v Accardi, 2023 NY Slip Op. 31673 [U] [Sup Ct, NY County 2023]; see also

Robert T Iannucci et ano. v Prime Four Inc. dlb/a Forno Rosso. et al., [Sup Ct, Kings County

2023, Boddie, J., Index No. 527321/2021]).

The Court finds no basis to depart from the sound reasoning or holding in Melendez and

the other New York State trial courts that the Guaranty Law is unconstitutional. Therefore, the

motion to dismiss on this ground is denied.

C. Defendant's Motion to Dismiss Counts 1 and 2 (002)

In Motion Sequence 002, the defendant moves to dismiss again, this time attacking the

first and second causes of action, which seek declaratory judgment that the Guaranty Law is

unconstitutional and regarding the interpretation of the Guaranty Law, respectively, for failure to

name the City ofNew York as an indispensable party pursuant to CPLR § 321 l(a)(l0) and for

lack of subject matter jurisdiction. Defendant did not violate the single motion rule as the prior

motion to dismiss is still pending and there had been no determination of that motion on the

merits (Sampson v Roberts, 212 AD3d 545,546 [1st Dept 2023]; Rivera v Bd. of Educ. of City of

New York, 82 AD3d 614, 614 [1st Dept 2011]). Moreover, defendant's CPLR § 3211 (a) (2) and

(10) motion is neither repetitive nor based on an alternative ground (Ultramar Energy Ltd. v

Chase Manhattan Bank, NA., 191 AD2d 86, 88 [1st Dept 1993]).

1. Subject Matter Jurisdiction

Pursuant to CPLR § 3211 (a) (2) an action should be dismissed when "the court has not

jurisdiction of the subject matter of the cause of action." Contrary to defendant's contention, this

1 The court has reviewed and considered the arguments contained in the letters submitted by both parties supplementing their motion papers after the motions were fully briefed.

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court has subject matter jurisdiction to consider the constitutionality of the Guaranty Law. New

York State Supreme Court is a court of general jurisdiction and is competent to entertain all

causes of action unless its jurisdiction has been specifically proscribed (NY Const., art. VI;

Thrasher v United States. Liab. Ins. Co., 19 NY2d 159, 166 [1967]). Further, the Appellate

Division, First Department, has remanded several cases to the trial court to further develop the

record for the purpose of applying the Contracts Clause test to the Guaranty Law (e.g., 45-47-49

Eighth Avenue LLC v Conti, 220 AD3d 473,474 [1st Dept 2023]; 513 W 26th Realty LLC v

George Billis Galleries, Inc., 220 AD3d 525, 525 [1st Dept 2023]; 721 Borrower LLC v Maha,

204 AD3d 510, 511 [1st Dept 2022]). Accordingly, dismissal pursuant to CPLR § 3211 (a) (2) is

inappropriate and this portion of the motion fails.

2. Failure to Join the City

The portion of defendant's motion to dismiss for failure to join the City as a necessary

and indispensable party pursuant to CPLR §§ 1001 and 3211 (a) (10) is also denied. Defendant

claims the City is a necessary party because the Guaranty Law's constitutionality is fundamental

to the ultimate relief requested by plaintiff, contending that if the law is constitutional it could

block plaintiff from recovering a monetary award.

Under CPLR § 3211 (a) (10), a party may move to dismiss on the basis that "the court

should not proceed in the absence of' a necessary party. CPLR § 1001 (a) defines a necessary

party as "[p ]ersons [or entities] who ought to be parties if complete relief is to be accorded

between the persons who are parties to the action or [persons or entities] who might be

inequitably affected by a judgment in the action shall be made plaintiffs or defendants" (CPLR

§ 1001 [a];Matterof27thSt. BlockAssn. vDormitoryAuth. ofStateofNY,302AD2d 155,160

[1st Dept 2002]). In assessing the issue of complete relief, courts will consider whether the relief

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sought against a defendant relies on, in part or in whole, an adjudication of the liability of and/or

harm caused by the nonparty sought to be joined (see Almah LLC v AIG Empl. Servs., Inc., 159

AD3d 532, 532 [1st Dept 2018] [holding that complete relief could be accorded "between

plaintiff and [defendant], without joining [nonparty ]" because "[defendant's] liability, if any, will

be limited to any damage that it caused during its tenancy; it will not be liable for damage that

[nonparty] may have caused during its earlier tenancy"]). A dismissal for failure to join a

necessary party will be reached as a last resort (L-3 Communications Corp. v Safe net. Inc., 45

AD3d 1, 11 [1st Dept 2007]).

Here, complete relief is possible to the parties if there is an enforceable contract without

the City's involvement in this lawsuit. No prejudice will ensue as the City is aware of this action,

as evidenced by the affidavit of notice mentioned above, and the City specifically opted not to

intervene (Email from New York City Law Department, attached as Exhibit 2 to affirmation of

Ralph E. Preite, NYSCEF Doc No. 62; see L-3 Communications Corp., 45 AD3d at 13 ["Courts

have routinely recognized that the ability of a nonjoined party to intervene in an action to avoid

prejudice is a compelling factor in determining whether to dismiss a case for failure to join a

necessary party"]). Accordingly, defendant's motion is denied.

The Court has considered the parties' remaining arguments and finds them unavailing.

V. CONCLUSION

For the reasons discussed above, it is

ORDERED that defendant Lisa Jackson a/k/a Lisa M. Calicchio's motion to dismiss the

complaint, pursuant to CPLR § 3211 (a) (1) and (7), is denied; and it is further

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ORDERED that plaintiff Mark Propco LLC's cross-motion to convert defendant's

motion to dismiss to a motion for summary judgment, pursuant to CPLR § 3211 (c ), and for a

hearing on attorneys' fees, is denied; and it is further

ORDERED that plaintiff Mark Propco LLC's cross-motion for leave to amend the

complaint, pursuant to CPLR § 3025 (c), is denied; and it is further

ORDERED that plaintiff Mark Propco LLC's cross-motion is granted in part as

Administrative Code § 22-1005 is declared unconstitutional, however summary judgment

pursuant to CPLR § 3 212, is denied; and it is further

ORDERED that defendant Lisa Jackson a/k/a Lisa M. Calicchio's motion to dismiss the

complaint, pursuant to CPLR § 3211 (a) (2) and (10), is denied; and it is further

ORDERED that defendant shall file her answer or otherwise respond to the complaint

within twenty days of the date this decision and order is filed; and it is further

ORDERED that counsel shall appear for a status conference in person at 71 Thomas

Street, New York, NY, on December 10, 2024, at 11 :00 am.

This constitutes the decision and order of the Court.

10/11/2024 DATE ALEXANDER M. TISCH, 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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