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(FILED: NEW YORK COUNTY CLERK 06/26/2017 10:51 AM INDEX NO. 650166/2017 |
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/26/2017
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: Hon. Nancy Bannon PART 42
Justice
EXCEL ASSOCIATES INDEX NO. 650166/17
-vVe- MOTION DATE 5-23-17
LITTER & LEASHES 6 INC. and KAREN MILLER MOTION SEQ. NO. _ 004
The following papers were read on this motion for leave to enter a default judgment (CPLR 3215).
Notice of Motion/ Order to Show Cause — Affirmation — Affid: ('s)
—
Exhibits — Memorandum of Law- No(s). 41
Answering Affirmation(s) — Affidavit(s) — Exhibits aenneenenneeneenns: sannnnnnnn= No(s).
In this action seeking damages upon theories of breach of contract and guaranty, the plaintiff,
the owner of commercial property located at 1100 Second Avenue in Manhattan, moves pursuant to
CPLR 3215 for leave to enter a default judgment against the defendants, a former corporate tenant
and its principal. The plaintiff seeks $109,916,06, in unpaid rent, additional rent, contractual attorneys
fees and late fees, plus interest. No opposition is submitted. The motion is granted.
5¢é “On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is
of
FO required to submit proof of service of the summons and complaint, proof of the facts constituting the
on claim, and proof of the defaulting party's default in answering or appearing (see CPLR 3215/f]; Allstate
wo
ecu
Ins. Co. v Austin, 48 AD3d 720, 720).” Atlantic Cas. Ins. Co. v RJNJ Services, Inc. 89 AD3d 649 (2
Dept. 2011). The proof submitted must establish a prima facie case. See Silberstein v Presbyterian
Hosp., 95 AD2d 773 (2™ Dept. 1983).
In support of the motion, the plaintiff submits, inter alia, the summons and complaint, an
affirmation of counsel, an affidavit of its manager, Seth Schochet, the subject signed lease and
personal guaranty agreements, a rent ledger covering the period October 1, 2015, through January 4,
2017, and the warrant of eviction from the Civil Court, New York County, dated October 7, 2016,
awarding the plaintiff possession of the subject premises. This proof establishes a prima facie cause of
action for breach of contract by showing (1) the existence of a contract, (2) the plaintiff's performance
under the contract; (3) the defendant's breach of that contract, and (4) resulting damages. See
Morpheus Capital Advisors LLC v UBS AG, 105 AD3d 145 (1% Dept. 2013). The plaintiff's proof also
establishes a prima facie case of breach of the guaranty. “Where a guaranty is clear and unambiguous
on its face and, by its language, absolute and unconditional, the signer is conclusively bound by its
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INDEX NO. 650166/2017
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/26/2017
terms absent a showing of fraud, duress or other wrongful act in its inducement.” Citibank, N.A. v Uri
Schwartz & Sons Diamonds Ltd., 97 AD3d 444, 446-447 (1% Dept. 2012), quoting National
Westminster Bank USA v Sardi’s Inc., 174 AD2d 470, 471 (1991). The terms of the subject guaranty
are clear, unambiguous, absolute and unconditional and, having defaulted in this action, the
defendants have not shown, or even alleged, any fraud, duress or any other wrongful conduct by the
plaintiff in regard to the agreement.
The plaintiff has also submitted proof of service of the summons and complaint and proof of the
defendants’ default in answering or appearing. See CPLR 3215(f).
While the plaintiff seeks an award of attorneys fees incurred in commencing and prosecuting
this action, the court notes that, according to the ledger submitted by the plaintiff, the $109,916.06 sum
already includes certain charges for attorneys fees through January 2017.
Accordingly, and upon the foregoing papers, it is
ORDERED that the plaintiff's motion for leave to enter a default judgment pursuant to CPLR
3215 against the defendants is granted, without opposition, and it is further,
ORDERED that the Clerk shall enter a judgment in favor of the plaintiff and against the
defendants, jointly and severally, in the sum of $109,916,06, plus statutory interest from May 15, 2016,
and attorneys fees and costs and it is further,
ORDERED that the plaintiff shall submit supplemental papers and its calculation for additional
attorneys’ fees and costs incurred in commencing and prosecuting this action, with a proposed final
order, within 30 days of this order.
This constitutes the Decision and Order of the court.
Dated: June 21, 2017 Nn
» JSC
HON. NANCY M. BANNON
1. Check one: .... atetee L) case pisposep Ml NON-FINAL DISPOSITION
2. Check as appro; moTIONis: Ml Granteo (J penieo L] GRanTEDINPART [J OTHER
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(FILED: NEW YORK COUNTY CLERK 06/26/2017 10:51 AM INDEX NO. 650166/2017 | NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/26/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. Nancy Bannon PART 42 Justice EXCEL ASSOCIATES INDEX NO. 650166/17 -vVe- MOTION DATE 5-23-17 LITTER & LEASHES 6 INC. and KAREN MILLER MOTION SEQ. NO. _ 004 The following papers were read on this motion for leave to enter a default judgment (CPLR 3215). Notice of Motion/ Order to Show Cause — Affirmation — Affid: ('s) — Exhibits — Memorandum of Law- No(s). 41 Answering Affirmation(s) — Affidavit(s) — Exhibits aenneenenneeneenns: sannnnnnnn= No(s). In this action seeking damages upon theories of breach of contract and guaranty, the plaintiff, the owner of commercial property located at 1100 Second Avenue in Manhattan, moves pursuant to CPLR 3215 for leave to enter a default judgment against the defendants, a former corporate tenant and its principal. The plaintiff seeks $109,916,06, in unpaid rent, additional rent, contractual attorneys fees and late fees, plus interest. No opposition is submitted. The motion is granted. 5¢é “On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is of FO required to submit proof of service of the summons and complaint, proof of the facts constituting the on claim, and proof of the defaulting party's default in answering or appearing (see CPLR 3215/f]; Allstate wo ecu Ins. Co. v Austin, 48 AD3d 720, 720).” Atlantic Cas. Ins. Co. v RJNJ Services, Inc. 89 AD3d 649 (2 Dept. 2011). The proof submitted must establish a prima facie case. See Silberstein v Presbyterian Hosp., 95 AD2d 773 (2™ Dept. 1983). In support of the motion, the plaintiff submits, inter alia, the summons and complaint, an affirmation of counsel, an affidavit of its manager, Seth Schochet, the subject signed lease and personal guaranty agreements, a rent ledger covering the period October 1, 2015, through January 4, 2017, and the warrant of eviction from the Civil Court, New York County, dated October 7, 2016, awarding the plaintiff possession of the subject premises. This proof establishes a prima facie cause of action for breach of contract by showing (1) the existence of a contract, (2) the plaintiff's performance under the contract; (3) the defendant's breach of that contract, and (4) resulting damages. See Morpheus Capital Advisors LLC v UBS AG, 105 AD3d 145 (1% Dept. 2013). The plaintiff's proof also establishes a prima facie case of breach of the guaranty. “Where a guaranty is clear and unambiguous on its face and, by its language, absolute and unconditional, the signer is conclusively bound by its Page | of 2 1 of 2 —sa —-t -—— INDEX NO. 650166/2017 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/26/2017 terms absent a showing of fraud, duress or other wrongful act in its inducement.” Citibank, N.A. v Uri Schwartz & Sons Diamonds Ltd., 97 AD3d 444, 446-447 (1% Dept. 2012), quoting National Westminster Bank USA v Sardi’s Inc., 174 AD2d 470, 471 (1991). The terms of the subject guaranty are clear, unambiguous, absolute and unconditional and, having defaulted in this action, the defendants have not shown, or even alleged, any fraud, duress or any other wrongful conduct by the plaintiff in regard to the agreement. The plaintiff has also submitted proof of service of the summons and complaint and proof of the defendants’ default in answering or appearing. See CPLR 3215(f). While the plaintiff seeks an award of attorneys fees incurred in commencing and prosecuting this action, the court notes that, according to the ledger submitted by the plaintiff, the $109,916.06 sum already includes certain charges for attorneys fees through January 2017. Accordingly, and upon the foregoing papers, it is ORDERED that the plaintiff's motion for leave to enter a default judgment pursuant to CPLR 3215 against the defendants is granted, without opposition, and it is further, ORDERED that the Clerk shall enter a judgment in favor of the plaintiff and against the defendants, jointly and severally, in the sum of $109,916,06, plus statutory interest from May 15, 2016, and attorneys fees and costs and it is further, ORDERED that the plaintiff shall submit supplemental papers and its calculation for additional attorneys’ fees and costs incurred in commencing and prosecuting this action, with a proposed final order, within 30 days of this order. This constitutes the Decision and Order of the court. Dated: June 21, 2017 Nn » JSC HON. NANCY M. BANNON 1. Check one: .... atetee L) case pisposep Ml NON-FINAL DISPOSITION 2. Check as appro; moTIONis: Ml Granteo (J penieo L] GRanTEDINPART [J OTHER Page 2 of 2 2 of 2