RCSH Operations, LLC v. Manhattan Sports Restaurants of America LLC

136 A.D.3d 455, 24 N.Y.S.3d 503, 2016 NY Slip Op 00877, 2016 N.Y. App. Div. LEXIS 876

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 9, 2016
• Docket: 151 151125/13
• Status: Published

Opinion

Order, Supreme Court, New York County (Peter H. Moulton, J.), entered September 11, 2014, which, to the extent appealed from, denied plaintiff’s motion for summary judgment, unanimously affirmed, without costs.

Plaintiff failed to make a prima facie showing of its entitlement to recover under the parties’ guaranty, as it did not submit sufficient evidence showing the underlying debt (City of New York v Clarose Cinema Corp., 256 AD2d 69, 71 [1st Dept 1998]). The affidavit from its lawyer is silent as to who read the meters, which plaintiff was required to do under the parties’ sublease.

Even if plaintiff had met its burden, in opposition, defendants raised material issues of fact. Defendants submitted four affidavits, including the affidavit submitted by plaintiff’s own expert in a related case, showing that the bills plaintiff sent to defendants appear inaccurate on their face. There is at least a question of fact as to whether plaintiff read the meters incorrectly or even at all, or whether the invoices were inaccurate for some other reason.

We have considered plaintiff’s remaining contentions and find them unavailing.

Concur — Mazzarelli, J.P., Moskowitz, Richter and Gische, JJ.