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FILED: NEW YORK COUNTY CLERK 01/11/2018 04:55 PM INDEX NO. 650332/2017
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/11/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
—â€â€
___________________________________----------------------------------X
SEWARD PARK HOUSING CORPORATK N, Index No. 650332/2017
Plaintiff, Motion Seq.: 001
-against- NOTICE OF ENTRY
NATHAN SKLAR and DEAN TISCHFELD,
Defendants.
---------------------------------------------------------------------X
PLEASE TAKE NOTICE, that attached is a true copy of a Decision and Order of the
Hon. Nancy Bannon, J.S.C., dated January 3, 2018 and entered in the above-captioned action in
the Office of the Clerk of the Supreme Court of the State of New York for New York County on
January 9, 2018.
Dated: New York, New York
January 11, 2018
AXELROD, FINGERHUT & DENNIS
73y:
y: Jared
.lared Matthew Langenthal, Esq.
Attorneys for Plaintiff
15th
260 Madison Avenue, FlOOr
New York, New York 10016
(212) 702-0900
TO:
NATHAN SKLAR
Defendant
264 East Broadway, Apt. C201
New York, New York 10002
JOHN J. MACRON
Attorney for Defendant Dean Tischfeld
491 Bard Avenue
Staten Island, New York 10310
(718) 889-3584
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FILED:
FILED: NEW
NEW YORK
YORK COUNTY
COUNTY CLERK
CLERK 01/11/2018
01/09/2018 04:55
03: 02 PM INDEX
INDEX NO.
NO. 650332/2017
650332/2017
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28 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 01/11/2018
01/09/2018
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: Hon. Bannon PART 42
Nancy
Justice
CORPORATION INDEX NO. 650332/2017
SEWARD PARK HOUSING
- v - MOTION DATE 8/25/2017
DEAN TISCHFELD MOTION SEQ. NO. 001
NATHAN SKLAR and
papers were read on this motion for leave to enter a default judgment and for summary
The following
judgment
Notice of Motion/ Order to Show Cause - Affirmation - Affidavit(s)
-
No(s). 1
Exhibits - Memorandum of Law-------------------------------------------------------------
In this action to recover on personal guarantees of a lease, the plaintiffmoves pursuant to
CPLR 3215 for leave to enter a default judgment against the defendant Nathan Sklar, pursuant to
CPLR 3212 for judgment on the complaint against the defendant Dean Tischfeld, for an
summary
attorneys'
award of fees, and for a reference to compute those fees. The motion is granted.
z
m cC Where a plaintiff moves for leave to enter a default judgment, itmust submit proof of the facts
O ul
constituting the claim, and proof of the defendant's default (see CPLR 3215[f]; Rivera v Correction
Vl Q [1St
z Officer L. Banks, 135 AD3d 621 Dept 2016]). The plaintiff submits the affidavits of service
referable to service of the summons and complaint upon the defendants, the verified complaint, and an
l- 0
a ~ attorney's affirmation. As proof of the facts constituting its claims, the plaintiff relies on the affidavit of
~o
0-'
Frank as stipulation
u_ itsassistant corporate secretary, Durant, well as the lease, the guarantees, a
settling a nonpayment proceeding against the lessee, and itrental and charge ledger. This proof
establishes that Sklar and Tischfeld both guaranteed the lessee's obligations under the lease, the
P lessee failed to satisfy its obligations by failing to pay the amounts due under the settlement beginning
>~
in September 2016, the lessee failed to pay rent and additional rent accruing thereafter, and the lessee
u-
thus became obligated to the plaintiff in the principal sum of $92,597.98. "Where a guaranty is clear
O
and unambiguous on itsface and, by itslanguage, absolute and unconditional, the signer is
conclusively bound by itsterms absent a showing of fraud, duress or other wrongful act in its
inducement." (15'
Citibank, N.A. v Uri Schwartz 8 Sons Diamonds Ltd., 97 AD3d 444, 446-447 Dept.
-w 2012), quoting National Westminster Bank USA v Sardi's Inc., 174 AD2d 470, 471 (1991). The terms
of the subject guaranties are clear, unambiguous, absolute and unconditional.
O
z
Having defaulted in this action, Sklar has not set forth any defense. The proof of the facts
supporting the plaintiff's request for leave to enter a default judgment against Sklar also establishes its
Z
prima facie entitlement to judgment as a matter of law against Tischfeld. Having submitted no
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YORK COUNTY
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650332/2017
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opposition to the motion, Tischfeld has failed to raise a triable issue of fact, and summary judgment
must be awarded against him. The liabilityof the defendants is joint and several with the lessee, as set
(2nd
forth in the guaranties. Seg Key Equip. . Fin. v South Shore Imaqing, Inc., 69 AD3d 805 Dept.
2010).
attorneys'
The court notes that the guarantees include a provision for the award of fees, but that
the plaintiffhas not itemized or submitted proof of the fees and costs that itincurred. Hence, the
matter willbe referred to a referee to hear and report on the amount of fees that is warranted. The
court concludes that October 15, 2016, or approximately halfway between the lessee's default in
payment under the settlement agreement and the commencement of this action, is a reasonable
intermediate date from which statutory prejudgment interest should be calculated. S_e_g CPLR 5001(a),
(2nd
(b); Wolf v American Tech. Ceramics Corp.,.,84 AD3d 1224 Dept. 2011).
Accordingly, itis
ORDERED that the plaintiff's motion is granted, without opposition, and the Clerk of the court is
directed to enter judgment in favor of the plaintiff,Seward Park Housing Corporation, and against the
defendants, Nathan Sklar and Dean Tischfeld, jointly and severally, in the principal sum of $92,597.88,
plus statutory prejudgment interest from October 15, 2016; and itis further,
ORDERED that a Judicial Hearing Officer ("JHO") or Special Referee shall be designated to
hear and report to this Court on the following individual issues of fact, which are hereby submitted to
the JHO/Special Referee for such purpose:
attorneys'
1. the issue of the amount due to the plaintifffor fees and costs under the
subject guarantees;
and itis further,
ORDERED that this matter is referred to the Special Referee Clerk (Room 646-
hereby 119M,
386-3028 or spref@nycourts.qov) for placement at the earliest possible date upon which the calendar
of the Special Referees Part (Part SRP), which, in accordance with the Rules of that Part (which are
"References"
posted on the website of this court at www.nycourts.qov/supctmanh at the link under
Procedures"
"Courthouse Procedures"), shall assign this matter to an available JHO/Special Referee to hear and
report as specified above; and itis further,
ORDERED that counsel shall immediately consult one another and counsel for plaintiff shall,
within 15 days from the date of this Order, submit to the Special Referee Clerk by fax (212-401-9186)
"References"
or email, an Information Sheet (which can be accessed at the link on the court's website)
containing allthe information called for therein and that, as soon as practical thereafter, the Special
Referee Clerk shall advise counsel for the parties of the date fixed for the appearance of the matter
upon the calendar of the Special Referees Part; and itis further,
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FILED:
FILED: NEW
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YORK COUNTY
UNTY CLERK
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01/09/2018 04:55 PM INDEX
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NO . 650332/2017
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03: 02 PM)
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attorneys'
plaintiff shall serve a proposed of fees within 24 ays
ORDERED that the accounting
and the defendants shall serve objections to the proposed accounting within
from the date of this order
service of plaintiff's papers and the papers shall be filed with the Special
20 days from foregoing
Referee Clerk at least one prior to the original appearance date in Part SRP fixed by the Clerk as
day
set forth above; and itis further,
ORDERED that the parties shall appear for the reference hearing, including with allwitnesses
and evidence seek to present, and shall be to proceed, on the date firstfixed by the Special
they ready
Referee Clerk subject to adjournment that may be authorized by the Special Referees Part in
only any
accordance with the Rules of that Part; and itis further,
ORDERED that the hearing will be conducted in the same manner as a trialbefore a Justice
without a jury (CPLR 4320[a]) (the proceeding will be recorded by a court reporter, the rules of
evidence apply, etc.) and, except as otherwise directed by the assigned JHO/Special Referee for good
cause shown, the trialof the issues specified above shall proceed from day to day until completion; and
itis further,
ORDERED that any motion to confirm or disaffirm the Report of the JHO/Special Referee shall
be made within the time and in the manner specified in CPLR 4403 and Section 202.44 of the Uniform
Rules for the Trial Courts, and, upon disposition of that motion, the plaintiff may enter an amended
attorneys'
judgment adding the award of fees and costs to the amount recovered, ifany; and itis
further,
ORDERED that the plaintiff shall serve a copy of this order upon the defendants within 15 days
of this order.
This constitutes the Decision and Order of the court.
I
Dated: ~ ~ l~ I
, JSC
one.
1. Check one: ...........................
...]CASE DISPOSED 8 NON-FINAL DISPOSITION
2. Check as appropriate: MOTION IS: 0 GRANTED 1 . DENIED ~ i GRANTED IN PART . OTHER
Page3of 3
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Preview
FILED: NEW YORK COUNTY CLERK 01/11/2018 04:55 PM INDEX NO. 650332/2017 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/11/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK —â€â€ ___________________________________----------------------------------X SEWARD PARK HOUSING CORPORATK N, Index No. 650332/2017 Plaintiff, Motion Seq.: 001 -against- NOTICE OF ENTRY NATHAN SKLAR and DEAN TISCHFELD, Defendants. ---------------------------------------------------------------------X PLEASE TAKE NOTICE, that attached is a true copy of a Decision and Order of the Hon. Nancy Bannon, J.S.C., dated January 3, 2018 and entered in the above-captioned action in the Office of the Clerk of the Supreme Court of the State of New York for New York County on January 9, 2018. Dated: New York, New York January 11, 2018 AXELROD, FINGERHUT & DENNIS 73y: y: Jared .lared Matthew Langenthal, Esq. Attorneys for Plaintiff 15th 260 Madison Avenue, FlOOr New York, New York 10016 (212) 702-0900 TO: NATHAN SKLAR Defendant 264 East Broadway, Apt. C201 New York, New York 10002 JOHN J. MACRON Attorney for Defendant Dean Tischfeld 491 Bard Avenue Staten Island, New York 10310 (718) 889-3584 1 of 4 FILED: FILED: NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/11/2018 01/09/2018 04:55 03: 02 PM INDEX INDEX NO. NO. 650332/2017 650332/2017 PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 29 28 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/11/2018 01/09/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. Bannon PART 42 Nancy Justice CORPORATION INDEX NO. 650332/2017 SEWARD PARK HOUSING - v - MOTION DATE 8/25/2017 DEAN TISCHFELD MOTION SEQ. NO. 001 NATHAN SKLAR and papers were read on this motion for leave to enter a default judgment and for summary The following judgment Notice of Motion/ Order to Show Cause - Affirmation - Affidavit(s) - No(s). 1 Exhibits - Memorandum of Law------------------------------------------------------------- In this action to recover on personal guarantees of a lease, the plaintiffmoves pursuant to CPLR 3215 for leave to enter a default judgment against the defendant Nathan Sklar, pursuant to CPLR 3212 for judgment on the complaint against the defendant Dean Tischfeld, for an summary attorneys' award of fees, and for a reference to compute those fees. The motion is granted. z m cC Where a plaintiff moves for leave to enter a default judgment, itmust submit proof of the facts O ul constituting the claim, and proof of the defendant's default (see CPLR 3215[f]; Rivera v Correction Vl Q [1St z Officer L. Banks, 135 AD3d 621 Dept 2016]). The plaintiff submits the affidavits of service referable to service of the summons and complaint upon the defendants, the verified complaint, and an l- 0 a ~ attorney's affirmation. As proof of the facts constituting its claims, the plaintiff relies on the affidavit of ~o 0-' Frank as stipulation u_ itsassistant corporate secretary, Durant, well as the lease, the guarantees, a settling a nonpayment proceeding against the lessee, and itrental and charge ledger. This proof establishes that Sklar and Tischfeld both guaranteed the lessee's obligations under the lease, the P lessee failed to satisfy its obligations by failing to pay the amounts due under the settlement beginning >~ in September 2016, the lessee failed to pay rent and additional rent accruing thereafter, and the lessee u- thus became obligated to the plaintiff in the principal sum of $92,597.98. "Where a guaranty is clear O and unambiguous on itsface and, by itslanguage, absolute and unconditional, the signer is conclusively bound by itsterms absent a showing of fraud, duress or other wrongful act in its inducement." (15' Citibank, N.A. v Uri Schwartz 8 Sons Diamonds Ltd., 97 AD3d 444, 446-447 Dept. -w 2012), quoting National Westminster Bank USA v Sardi's Inc., 174 AD2d 470, 471 (1991). The terms of the subject guaranties are clear, unambiguous, absolute and unconditional. O z Having defaulted in this action, Sklar has not set forth any defense. The proof of the facts supporting the plaintiff's request for leave to enter a default judgment against Sklar also establishes its Z prima facie entitlement to judgment as a matter of law against Tischfeld. Having submitted no Page 1 of 3 2 1 of of 34 FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/11/2018 01/09/2018 04:55 03:02 PM INDEX INDEX NO. NO. 650332/2017 650332/2017 PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 29 28 RECEIVED NYSCEF: 01/11/2018 RECEIVED NYSCEF: 01/09/2018 opposition to the motion, Tischfeld has failed to raise a triable issue of fact, and summary judgment must be awarded against him. The liabilityof the defendants is joint and several with the lessee, as set (2nd forth in the guaranties. Seg Key Equip. . Fin. v South Shore Imaqing, Inc., 69 AD3d 805 Dept. 2010). attorneys' The court notes that the guarantees include a provision for the award of fees, but that the plaintiffhas not itemized or submitted proof of the fees and costs that itincurred. Hence, the matter willbe referred to a referee to hear and report on the amount of fees that is warranted. The court concludes that October 15, 2016, or approximately halfway between the lessee's default in payment under the settlement agreement and the commencement of this action, is a reasonable intermediate date from which statutory prejudgment interest should be calculated. S_e_g CPLR 5001(a), (2nd (b); Wolf v American Tech. Ceramics Corp.,.,84 AD3d 1224 Dept. 2011). Accordingly, itis ORDERED that the plaintiff's motion is granted, without opposition, and the Clerk of the court is directed to enter judgment in favor of the plaintiff,Seward Park Housing Corporation, and against the defendants, Nathan Sklar and Dean Tischfeld, jointly and severally, in the principal sum of $92,597.88, plus statutory prejudgment interest from October 15, 2016; and itis further, ORDERED that a Judicial Hearing Officer ("JHO") or Special Referee shall be designated to hear and report to this Court on the following individual issues of fact, which are hereby submitted to the JHO/Special Referee for such purpose: attorneys' 1. the issue of the amount due to the plaintifffor fees and costs under the subject guarantees; and itis further, ORDERED that this matter is referred to the Special Referee Clerk (Room 646- hereby 119M, 386-3028 or spref@nycourts.qov) for placement at the earliest possible date upon which the calendar of the Special Referees Part (Part SRP), which, in accordance with the Rules of that Part (which are "References" posted on the website of this court at www.nycourts.qov/supctmanh at the link under Procedures" "Courthouse Procedures"), shall assign this matter to an available JHO/Special Referee to hear and report as specified above; and itis further, ORDERED that counsel shall immediately consult one another and counsel for plaintiff shall, within 15 days from the date of this Order, submit to the Special Referee Clerk by fax (212-401-9186) "References" or email, an Information Sheet (which can be accessed at the link on the court's website) containing allthe information called for therein and that, as soon as practical thereafter, the Special Referee Clerk shall advise counsel for the parties of the date fixed for the appearance of the matter upon the calendar of the Special Referees Part; and itis further, Page 2 of 3 23 ofof 34 FILED: FILED: NEW NEW YORK YORK COUNTY UNTY CLERK CLERK 01/11/2018 01/09/2018 04:55 PM INDEX INDEX NO. NO . 650332/2017 6 5 03 3 2 / 2 0 17 03: 02 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 28 29 RECEIVED NYSCEF: RECEIVED NYSCEF : 01/11/2018 01/09/2018 attorneys' plaintiff shall serve a proposed of fees within 24 ays ORDERED that the accounting and the defendants shall serve objections to the proposed accounting within from the date of this order service of plaintiff's papers and the papers shall be filed with the Special 20 days from foregoing Referee Clerk at least one prior to the original appearance date in Part SRP fixed by the Clerk as day set forth above; and itis further, ORDERED that the parties shall appear for the reference hearing, including with allwitnesses and evidence seek to present, and shall be to proceed, on the date firstfixed by the Special they ready Referee Clerk subject to adjournment that may be authorized by the Special Referees Part in only any accordance with the Rules of that Part; and itis further, ORDERED that the hearing will be conducted in the same manner as a trialbefore a Justice without a jury (CPLR 4320[a]) (the proceeding will be recorded by a court reporter, the rules of evidence apply, etc.) and, except as otherwise directed by the assigned JHO/Special Referee for good cause shown, the trialof the issues specified above shall proceed from day to day until completion; and itis further, ORDERED that any motion to confirm or disaffirm the Report of the JHO/Special Referee shall be made within the time and in the manner specified in CPLR 4403 and Section 202.44 of the Uniform Rules for the Trial Courts, and, upon disposition of that motion, the plaintiff may enter an amended attorneys' judgment adding the award of fees and costs to the amount recovered, ifany; and itis further, ORDERED that the plaintiff shall serve a copy of this order upon the defendants within 15 days of this order. This constitutes the Decision and Order of the court. I Dated: ~ ~ l~ I , JSC one. 1. Check one: ........................... ...]CASE DISPOSED 8 NON-FINAL DISPOSITION 2. Check as appropriate: MOTION IS: 0 GRANTED 1 . DENIED ~ i GRANTED IN PART . OTHER Page3of 3 34 ofof 34