Preview
FILED: NEW YORK COUNTY CLERK 12/05/2019 02:09 PM INDEX NO. 654090/2019
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/05/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK Index No.: 654090/2019
16th
101 East Street Realty LLC,
Plaintiff,
AFFIRMATION IN SUPPORT
- against - OF CROSS MOTION AND IN
OPPOSITION TO MOTION
Union Square Restaurant LLC d/b/a
Moaz, Iris Keltz and Nat Hirschman,
Defendants.
Mark Krassner, an attorney duly licensed to practice law in the State of New York,
does hereby affirm under the penalties of perjury:
1. I am a partner in Borah, Goldstein, Altschuler, Nahins & Goidel., P.C. and as
such am fully familiar with the facts of this action. This affirmation is made in support of
!
the cross motion for an Order:
a. Pursuant to C.P.L.R 3025 granting Plaintiff leave to amend the name of
16th LLC" 16th
the Plaintiff from "101 East Street Realty to "101 East
Realty LLC";
b. Dismissing the first, second, third, fourth, sixth, eighth and tenth
affirmative defenses;
c. Pursuant to C.P.L.R. 306-b extending the time for Plaintiff to serve
Defendant'
Union Square Restaurant LLC and Nat Hirschman; and
d. Such other and further relief as this Court deems just and proper; and
in opposition to Defendant's motion for summary judgment.
IN SUPPORT OF CROSS MOTION
16th
2. The name of the Plaintiff was erroneously set forth as "101 East S yegg
1 of 4
FILED: NEW YORK COUNTY CLERK 12/05/2019 02:09 PM INDEX NO. 654090/2019
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/05/2019
16th
Realty LLC". The correct name of Plaintiff-Landlord is "101 East Realty LLC". A
"A"
copy of the deed is attached hereto as Exhibit and to the moving papers as Exhibit
"D".
__
16th
3. 101 East Realty LLC was incorporated on May 30, 1996 in New York State
and is stillactive. A copy of the N.Y.S. Division of Corporations report evideñcing same is
attached as Exhibit "B".
4. Plaintiff and Defendant Union Square Restaurant entered into an Agreement
Exteñdiñÿ Lease dated February 12, 2016 ("Agreement"). In the Agreement the Plaintiff
16th
is correctly designated as "101 East Realty LLC". A copy of the Agreement is
attached hereto as Exhibit "C".
"Street"
5. The insertion of the word was merely a typographical and ministerial
error.
6. A copy of the proposed Amended Summons and Cornplaint are attached
hereto as Exhibit "D".
7. C.P.L.R. 3025 (b) states:
(b) Amendments and supplemental pleadings by leave. A party
may amend his or her pleading, or supplement it by setting forth
additional or subsequent transactions or occurrences, at any time by
leave of court or by stipulation of all parties. Leave shall be freely
given upon such terms as may be just including the granting of costs
and continuances. Any motion to amend or supplement pleadings
shall be accompanied by the proposed amended or supplemental
pleading clearly showing the changes or additicñs to be made to the
pleading.
8. In NYAHSA Services. Inc.. Self-Insurance Trust v. People Care Inc., 2017
NY Slip Op. 07918, the Court decided that pursuant to CPLR 3025(b), a party may
amend its pleadings at any time by leave of the court, which shall be freely given upon
2 of 4
FILED: NEW YORK COUNTY CLERK 12/05/2019 02:09 PM INDEX NO. 654090/2019
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/05/2019
such terms as may be just. Ithas long been recognized that the decision whether to grant
leave to amend pleadings rests within the trial court's sound discretion and, absent a
clear abuse of that discretion, will not be lightly cast aside . . . we hold that no
evidentiary showing of merit is required under CPLR 3025(b). Thus, the rule on a motion
for leave to amend a pleadiñg is that the movant need not establish the merits of the
proposed amendment and, in the absence of prejudice or surprise resulting directly from
the delay in seeking leave, such applications are to be freely granted unless the proposed
amendment is palpably insufficient or patently devoid of merit.
9. In this action the proposed amendment to the name of the Plaintiff is de
minimus, will not prejudice the Defendants to any extent nor will itpresent any surprise to
Defendants.
10. Defendants first,second, third, fourth, sixth, eighth and tenth affirmative
defenses are all based upon the fact that the NAMED Plaintiff is incorrectly named. In
the event the Court grants that branch of this cross motion amending the name of the
Plaintiff these defenses become moot and should be dismissed. A copy of the answer is
attached hereto as Exhibit "F".
11. The summons and complaint were filed on July 17, 2019. Defendant's
attorney answered and appeared on behalf of a_4 Defendants on September 20, 2019.
12. Pursuant to C.P.L.R. 306-b, an Order to extend the time for service of a
summons and complaint may be granted upon a showing of either good cause for failing
to timely serve the appellants or that an extension should be granted in the interest of
justice. Leader v. Maroney, Ponzini & Spencer, 97 N.Y. 2d 95; 736 N.Y.S. 2d 291 (2001).
A plaintiff need not establish reasonably diligent efforts at service as a threshold matter.
(2nd
Thompson v. City of New York, 89 A.D. 3d 1011 Dept. 2011),
13. The reason that service was not yet effectuated upon Defendant Hirschman
3 of 4
FILED: NEW YORK COUNTY CLERK 12/05/2019 02:09 PM INDEX NO. 654090/2019
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/05/2019
is that we do yet have his current address.
14. In this action, there is no demonstrable prejudice to the defendants. Darko
v. (2nd
Guerrino, 169 A.D. 3d 768, 94 N.Y.S. 3d147 Dept. 2019).
IN OPPOSITION TO MOTION
15. That branch of the motion seeking dismissal against Defendant Keltz
should be denied. The assertion in paragraph 13 of the Veraja moving affidavit is untrue.
Defendant Keltz signed a Limited Guaranty dated August 3, 2016, a copy of which is
attached hereto as Exhibit "E".
16. Also, the moving papers do not include an affidavit from Defendant Keltz
and the sole basis for dismissal of the complaint against Keltz is the clearly erroneous
belief"
affidavit of Mr. Veraja, which is set forth "upon information and Consequently,
factual statements about the existence of the Keltz guarantee should be disregarded as
hearsay.
17. in view of the foregoing, Plaintiff's cross-motion should be granted in its
entirety and the Defendant's motion denied.
WHEREFORE, Plaintiff requests that its cross-motion be granted in its entirety and
that the motion be denied, together with such other and further relief as this Court deems
just and proper.
Dated: December 5, 2019
ark Krassner
4 of 4
Preview
FILED: NEW YORK COUNTY CLERK 12/05/2019 02:09 PM INDEX NO. 654090/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/05/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No.: 654090/2019 16th 101 East Street Realty LLC, Plaintiff, AFFIRMATION IN SUPPORT - against - OF CROSS MOTION AND IN OPPOSITION TO MOTION Union Square Restaurant LLC d/b/a Moaz, Iris Keltz and Nat Hirschman, Defendants. Mark Krassner, an attorney duly licensed to practice law in the State of New York, does hereby affirm under the penalties of perjury: 1. I am a partner in Borah, Goldstein, Altschuler, Nahins & Goidel., P.C. and as such am fully familiar with the facts of this action. This affirmation is made in support of ! the cross motion for an Order: a. Pursuant to C.P.L.R 3025 granting Plaintiff leave to amend the name of 16th LLC" 16th the Plaintiff from "101 East Street Realty to "101 East Realty LLC"; b. Dismissing the first, second, third, fourth, sixth, eighth and tenth affirmative defenses; c. Pursuant to C.P.L.R. 306-b extending the time for Plaintiff to serve Defendant' Union Square Restaurant LLC and Nat Hirschman; and d. Such other and further relief as this Court deems just and proper; and in opposition to Defendant's motion for summary judgment. IN SUPPORT OF CROSS MOTION 16th 2. The name of the Plaintiff was erroneously set forth as "101 East S yegg 1 of 4 FILED: NEW YORK COUNTY CLERK 12/05/2019 02:09 PM INDEX NO. 654090/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/05/2019 16th Realty LLC". The correct name of Plaintiff-Landlord is "101 East Realty LLC". A "A" copy of the deed is attached hereto as Exhibit and to the moving papers as Exhibit "D". __ 16th 3. 101 East Realty LLC was incorporated on May 30, 1996 in New York State and is stillactive. A copy of the N.Y.S. Division of Corporations report evideñcing same is attached as Exhibit "B". 4. Plaintiff and Defendant Union Square Restaurant entered into an Agreement Exteñdiñÿ Lease dated February 12, 2016 ("Agreement"). In the Agreement the Plaintiff 16th is correctly designated as "101 East Realty LLC". A copy of the Agreement is attached hereto as Exhibit "C". "Street" 5. The insertion of the word was merely a typographical and ministerial error. 6. A copy of the proposed Amended Summons and Cornplaint are attached hereto as Exhibit "D". 7. C.P.L.R. 3025 (b) states: (b) Amendments and supplemental pleadings by leave. A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additicñs to be made to the pleading. 8. In NYAHSA Services. Inc.. Self-Insurance Trust v. People Care Inc., 2017 NY Slip Op. 07918, the Court decided that pursuant to CPLR 3025(b), a party may amend its pleadings at any time by leave of the court, which shall be freely given upon 2 of 4 FILED: NEW YORK COUNTY CLERK 12/05/2019 02:09 PM INDEX NO. 654090/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/05/2019 such terms as may be just. Ithas long been recognized that the decision whether to grant leave to amend pleadings rests within the trial court's sound discretion and, absent a clear abuse of that discretion, will not be lightly cast aside . . . we hold that no evidentiary showing of merit is required under CPLR 3025(b). Thus, the rule on a motion for leave to amend a pleadiñg is that the movant need not establish the merits of the proposed amendment and, in the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. 9. In this action the proposed amendment to the name of the Plaintiff is de minimus, will not prejudice the Defendants to any extent nor will itpresent any surprise to Defendants. 10. Defendants first,second, third, fourth, sixth, eighth and tenth affirmative defenses are all based upon the fact that the NAMED Plaintiff is incorrectly named. In the event the Court grants that branch of this cross motion amending the name of the Plaintiff these defenses become moot and should be dismissed. A copy of the answer is attached hereto as Exhibit "F". 11. The summons and complaint were filed on July 17, 2019. Defendant's attorney answered and appeared on behalf of a_4 Defendants on September 20, 2019. 12. Pursuant to C.P.L.R. 306-b, an Order to extend the time for service of a summons and complaint may be granted upon a showing of either good cause for failing to timely serve the appellants or that an extension should be granted in the interest of justice. Leader v. Maroney, Ponzini & Spencer, 97 N.Y. 2d 95; 736 N.Y.S. 2d 291 (2001). A plaintiff need not establish reasonably diligent efforts at service as a threshold matter. (2nd Thompson v. City of New York, 89 A.D. 3d 1011 Dept. 2011), 13. The reason that service was not yet effectuated upon Defendant Hirschman 3 of 4 FILED: NEW YORK COUNTY CLERK 12/05/2019 02:09 PM INDEX NO. 654090/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/05/2019 is that we do yet have his current address. 14. In this action, there is no demonstrable prejudice to the defendants. Darko v. (2nd Guerrino, 169 A.D. 3d 768, 94 N.Y.S. 3d147 Dept. 2019). IN OPPOSITION TO MOTION 15. That branch of the motion seeking dismissal against Defendant Keltz should be denied. The assertion in paragraph 13 of the Veraja moving affidavit is untrue. Defendant Keltz signed a Limited Guaranty dated August 3, 2016, a copy of which is attached hereto as Exhibit "E". 16. Also, the moving papers do not include an affidavit from Defendant Keltz and the sole basis for dismissal of the complaint against Keltz is the clearly erroneous belief" affidavit of Mr. Veraja, which is set forth "upon information and Consequently, factual statements about the existence of the Keltz guarantee should be disregarded as hearsay. 17. in view of the foregoing, Plaintiff's cross-motion should be granted in its entirety and the Defendant's motion denied. WHEREFORE, Plaintiff requests that its cross-motion be granted in its entirety and that the motion be denied, together with such other and further relief as this Court deems just and proper. Dated: December 5, 2019 ark Krassner 4 of 4