New Second Ave. Owner LLC v. Grill on 2nd LLC

2024 NY Slip Op 31139(U)

• Court: New York Supreme Court, New York County
• Decided: April 3, 2024
• Status: Unpublished

Opinion

New Second Ave. Owner LLC v Grill on 2nd LLC 2024 NY Slip Op 31139(U) April 3, 2024 Supreme Court, New York County Docket Number: Index No. 156493/2022 Judge: Louis L. Nock 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. 156493/2022 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 04/05/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LOUIS L. NOCK PART 38M Justice ---------------------------------------------------------------------------------X INDEX NO. 156493/2022 NEW SECOND AVENUE OWNER LLC and 355 REALTY CO., n/k/a BRAUSE SECOND AVENUE HOLDINGS LLC, MOTION DATE 05/10/2023

Plaintiffs, MOTION SEQ. NO. 001

-v- DECISION + ORDER ON GRILL ON 2ND LLC and GARRETT P. DOYLE, MOTION Defendants. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document numbers (Motion 001) 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, and 29 SUMMARY JUDGMENT (and cross-motion by were read on this motion by plaintiffs for defendants to dismiss) .

LOUIS L. NOCK, J.S.C.

Plaintiffs have each moved for summary judgment by one unified notice of motion. As

will be treated in detail hereinbelow, the court denies the motion, as moved by plaintiff New

Second Avenue Owner LLC (“New Owner”), but grants the motion, as moved by plaintiff 355

Realty Co., n/k/a Brause Second Avenue Holdings LLC (“Prior Owner”). Defendants’ cross-

motion seeking dismissal of the complaint is granted as to claims asserted by New Owner, but is

denied with regard to claims asserted by Prior Owner. Consequently, New Owner’s claims are

severed and dismissed.

It is undisputed that the parties to the lease and guaranty at the center of this action were

between defendants and Prior Owner (Lease, NYSCEF Doc. No. 13; guaranty, NYSCEF Doc.

No. 14). It is also undisputed that the lease terminated on May 31, 2022 (notice of termination,

NYSCEF Doc. No. 15), prior to the sale of the premises to new owner (deed, NYSCEF Doc. No.

11). Neither the lease or the guaranty provides for its enforcement by a stranger to the agreement

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after both agreements have expired, and plaintiffs have submitted no evidence that Prior Owner

ever assigned its claims under the agreements to New Owner.

The motion is granted as to Prior Owner, and, consequently, the defendants’ cross-motion

seeking to dismiss Prior Owner’s claims is denied. Prior owner has established prima facie

entitlement to summary judgment by “the existence of the lease . . . the tenant's failure to pay the

rent, the amount of the underpayment, and the calculation of the amounts due under the lease”

(Thor Gallery at S. Dekalb, LLC v Reliance Mediaworks (USA) Inc., 143 AD3d 498 [1st Dept

2016]). Plaintiff has also established prima facie entitlement to summary judgment against

defendant Garrett P. Doyle (“Doyle”), by submission of the executed guarantee and proof of

defendant’ failure to pay sums owed thereunder (Gard Entertainment, Inc. v Country in New

York, LLC, 96 AD3d 683, 683 [1st Dept 2012] [“Here, plaintiff established its entitlement to

summary judgment as against Block by demonstrating proof of the guarantee he made in

connection with a note executed by Country and his failure to make payments called for by its

terms”]).

In opposition, defendants fail to raise a material issue of fact requiring trial (Kershaw v

Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept 2013]). Nor do defendants establish

that facts relevant to the action “essential to justify opposition may exist but cannot [now] be

stated” (CPLR 3212[f]; Morales v Amar, 145 AD3d 1000, 1003 [2d Dept 2016] [The “mere hope

or speculation that evidence sufficient to defeat a motion for summary judgment may be

uncovered during the discovery process is an insufficient basis for denying the motion”]).

Defendant Doyle asserts that summary judgment specifically against him is improper because

certain of the rent arrears arose during a period covered by Administrative Code of the City of

New York § 22-1005, often referred to as the “guaranty law.” Serious doubts have been raised

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as to the continuing viability of Section 22-1005 (513 W. 26th Realty LLC v George Billis

Galleries, Inc., 220 AD3d 525, 525 [1st Dept 2023]; Dongqi 79 Alumni, Inc v United Pos Inc.,

2023 NY Slip Op 32225[U], *6 [Sup Ct, New York County 2023]), and the court thus denies its

invocation here.

Accordingly, it is hereby

ORDERED that the motion for summary judgment, as moved by plaintiff New Second

Avenue Owner LLC, is denied, and the cross-motion by defendants to dismiss that plaintiff’s

claims is granted; and it is further

ORDERED that the complaint, insofar as it is brought by plaintiff New Second Avenue

Owner LLC, is severed and dismissed; and it is further

ORDERED that the motion for summary judgment, as moved by plaintiff 355 Realty Co.,

now known as Brause Second Avenue Holdings LLC, is granted, and the cross-motion by

defendants to dismiss that plaintiff’s claims is denied; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment in favor of plaintiff

Brause Second Avenue Holdings LLC, formerly known as 355 Realty Co., and against

defendants, jointly and severally, in the amount of $330,463.37, with interest thereon at the

statutory rate from February 4, 2021,1 through entry of judgment, as calculated by the Clerk,

together with costs and disbursements as taxed by the Clerk upon submission of an appropriate

bill of costs; and it is further

ORDERED that plaintiff Brause Second Avenue Holdings LLC, formerly known as 355

Realty Co., is entitled to its reasonable attorneys’ fees pursuant to the lease and guaranty, and the

1 “Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date” (CPLR 5001[b]; Kachkovskiy v Khlebopros, 164 AD3d 568, 572 [2d Dept 2018]). 156493/2022 NEW SECOND AVENUE OWNER LLC ET AL vs. GRILL ON 2ND LLC ET AL Page 3 of 4 Motion No. 001

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issue of the amount of such fees is severed and set down for a further hearing before the

undersigned; and it is further

ORDERED that plaintiff Brause Second Avenue Holdings LLC, formerly known as 355

Realty Co., and the defendants may appear for said hearing in Room 1166, 111 Centre Street,

New York, New York, on June 4, 2024, at 10:00 AM; and it is further

ORDERED that plaintiff Brause Second Avenue Holdings LLC, formerly known as 355

Realty Co., shall submit the documentation it intends to proffer in support of its fee application

to defendant and the court on or before May 21, 2024.

This constitutes the decision and order of the court.

ENTER:

4/3/2024 $SIG$ DATE LOUIS L. NOCK, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

APPLICATION: GRANTED

SETTLE ORDER DENIED X GRANTED IN PART

SUBMIT ORDER □ OTHER

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

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