NTL Capital LLC v. Brooklyn Comprehensive Care Ctr., Inc.

2024 NY Slip Op 32979(U)

• Court: New York Supreme Court, Kings County
• Decided: August 20, 2024
• Docket: Index No. 506587/2019
• Status: Unpublished

Opinion

NTL Capital LLC v Brooklyn Comprehensive Care Ctr., Inc. 2024 NY Slip Op 32979(U) August 20, 2024 Supreme Court, Kings County Docket Number: Index No. 506587/2019 Judge: Wavny Toussaint 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: KINGS COUNTY CLERK 08/21/2024 INDEX NO. 506587/2019 NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 08/22/2024

Atan IAS Term, Part 70 of the Supreme Court of the State ofNew York, heldirtand for the County of Kings,.a.ttheCourthouse; at 360 AdarnsStreet, Brooklyn, New York, on the

l ;J&tiay of Augµst, 2024.

PRESENT:

HON, . WAVNYTOUSSATN .. . I·

1Uftice i NTL CAPITAL LLC d/b/a NfL MAMAGEMENt LLC, As assignee of CITIBANK, ·.A., Index No.: 506587/2019 Plaintiff, ORDER - against"

BROOKLYN COMPREHE iSIVE CARE CENTER, INC; artd LUCY JANE GAMBAR:jAN, AS EXECUTOR OF THE ESTATE OF ARMEN GAM ARIAN,

Defendants.

The following papers number~d I to read herein Papers Numbered Notice of Motion/Order to Shpw Cause/ and Affidavits (Affirmations) !Annexed 72-86 Cross Motiona~d Affidavit~ ~Affirmati~n) Annexed Answers/Opposmg Affidavits! (Affirmations) 90~94 Reply Affidavits (Affirmatio 's) 95-96 Affidavit {Affirmation) Other Papers

Upon the foregoing pa ets, plaintiff moves (Seq. 03) for an order, pursuantto CPLR I . I § 3212, granting sun:imary ~udgment disµiissing the veri:fi_f!d answers of defendants i Brooklyn Comprehensive cate Center, Ihc. (''BCCC') artd Estate of Armen Garnba:tian I

(collectively·the·;,defondants' 1~. The defendants oppose. I On Jurie: I 0, 2009, defiµdarit BCCC (and individuµ.l guarantors Armen Gatnbadan I and Maria Starov9yt) execute a Business CreditAc;count A.gr~eni.eilt with Citibank,.N.A.

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("'Citibank,") for a $400,000 c edit arrangement (the "CitibankLoan''). The Citibank Loan i

was assigned to plaintiff otj February 27, 2013. Thereµfter, plaintiff entered into a i Modification Agreement wit~ defendants dated March 20, 2013, establishing new terms i

for the credit arrangement. titibank was not a party to the Modification Agreement.

Having failed to meet their payment obligations under the Modification Agreement,

plaintiff sent defendants a No ice of Default dated January 10, 2019 (the "default letter"), I i Defendants did not cure the kiefault and plaintiff initiated this action by summons and

complaint filed on Match 26, 2019 (later amended on or aboutJanuary 16, 2024). Both

guarantors are now deceased; with Marya Starovoyt having died on December 21, 2018,

and Annen Gambarian on Au ust 6, 2019. Inasmuch as Marya Starovoyt's death pre-dates i I

the commencement of this a{tion, all clafrns against her have beert dismissed by Court i order dated October 11 ):2023 {NYSCEF Doc, No. 62). Lucy Jane Gambarian, as Executor i I of the Estate of Annen Gamb rian, hasheen substituted as defendant for guarantor Armen

Gambarian (id.).

The initial complaint ( s well as the amended cotn_plairtt) alleged a breach of the

Citibank Loart as the bases for plaintiffs breach of contract, account stated, unjust

enrichment and breach of gua anties claims. Plaintiff did not assert any claims alleging a I . breach of the Modification ~greement On March 22, 2024, plaintiff filed the within I motion alle~;ing, inter alia, tjoth a breach of the Citibank Loan and the Modification I Agreem¢rtt. Defendarits oppo~e, cont¢ndJng plciintiff sues only ih its. capacity as assig1,1e!! . . . I . . . . . of Citibank but provides o •Iy proof as to the alleged default of the Modification

Agreement, which is at issue. Contrary to.plaintiffs c6nJ~ntion, its. amended complaint

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did not allege the theory pr~ented in this motion for summary judgment; namely that i

defendants breached the tefns of the Modification Agreement and were defaulted

thereunder. I ' It is well'.'settled that sJmmary I . judgmentis . not pennitted on a claim that was never i pled in the complaint (Mendof a v Manila Bar & Rest. Corp., 140 AD3d 934, 93 5 [2d Dept i

2016]; Valentive v 2147 Seco~d Avenue LLC, 203 AD3d 531,532 [1st Dept 2022]). The I i Second Department has notdd an exception, holding that under certain circumstances, I . i

·"summary judgment maybe ai~varded I on an unpleadedcause ofaction ifthe proof supports . I . . .. i . . . . . such cause and if the opposi~g party has not been misled to its prejudice;' (FPG CH 94 i i Amity, LLC v Pizzarotti, LLC~ 2 l8AD3d 654, 655 [2nd Dept. 2023 ]). i I

Here, plaintiff does nqt demonstrate its prima fade entitlement to judgment as a I matter oflaw,. as its proofdoetI not Support a cause of action for breach of the Modification i I Agreement. Among other t~ings, plaintiffs supporting witness, Mitchell Domershick I (NYSCEF Doc. No. 73; "Dfmershick"), testified that individual defendant BCCC, as i . I . "Borrower", failed to make thr required payments under the Modification Agreement (see

id.i at par. 16), and thus defaulfed thereunder. However, Domershickis silent as to whether . i . . . . any ofthe guarantors also weGe in default, having failed to inake the requisite payments as I . .. well. Finally, plaintiff does n~t demonstrate lack ofprejudite to defendants who would be I . . forced, after five years of liti · ation, to defend against a new and distinct cause of action

devoid 9f any connection to th1:1.t stated in the amended complaint. For.· th¢se reasons,

summary. judgment . may·not I e awarded on this unpled cause of actiort. As pfaintiff . did I not establish its prhna facie c'. se, the sufficiency of defendant~' · opposition is. immaterial

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( Wine grad v New York Uni . Med. Ctr. , 64 NY2d 851, 85 3 [ 1985]). In light of the

foregoing, the Court need not ddress plaintiffs remaining arguments for affirmative relief.

Accordingly, it is here y

ORDERED, that plai tiffs motion (Seq. 03) for an order, pursuant to the CPLR

§ 3212, granting summary 'udgment dismissing the verified answers of defendants

Brooklyn Comprehensive Ca e Center, Inc. and Estate of Armen Gambarian, is denied in

every respect.

All relief not specifica ly granted herein has been considered and is denied.

This constitutes the de is ion and order of the Court.

For Clerks use only MG MD~ Motion Seq. 3 ENTER

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