Wassfam LLC v. Orlando Rene Palacios

(NY Supreme Court, August 15, 2012)

We represented: Plaintiff

Manual J. Mendez, J.S.C.


Upon a reading of the foregoing cited papers, it is ordered that Defendant's motion to amend pleadings, strike the note of Issue and compel discovery Is denied. Plaintiffs cross motion for summary judgment on the issue of liability Is granted.

Plaintiff, landlord, sues defendant to recover for non-payment of rent pursuant to a lease extension and modification dated June 12, 2007 for premises located at 320 West 37th Street. The premises were leased for Commercial purposes and were to be used solely for commercial purposes. Defendant Assigned the lease, with consent of Plaintiff, to a corporation but issued a "Good Guy Guarantee", guarantying payment of any arrears not paid by the corporation.

Following Joinder of Issue the parties appeared for a preliminary conference and entered into a conference order establishing dates for completion of discovery and filing of the note of issue. Following exchange of documentary discovery, and defendant not having served Notice to take plaintiffs deposition, Plaintiff flied a note of issue and certificate of Readiness on May 4, 2012 Indicating that all discovery was complete. Defendant now moves to amend the pleadings to assert the violation of Multiple Dwelling Law § 302 as a defense. Defendant also seeks to strike the note of Issue because discovery is not yet completed, and seeks to compel discovery. The only discovery Item left Is taking the deposition of the plaintiff.

Plaintiff cross-moves for summary judgment on the Issue of liability, opposes the motion to amend the pleading, to strike the note of Issue and to compel discovery. Plaintiff claims that to amend the answer at this late stage to assert a merit less affirmative defense is prejudicial. Furthermore, plaintiff claims that defendant's motion to strike the note of issue Is untimely. Finally plaintiff claims that no unusual or unanticipated circumstances have developed requiring further discovery following the filing of the note of Issue.

The note of issue was served on the defendant and filed with the clerk of the court on May 4, 2012. The motion to strike the note of issue was made and filed with the court on May 31, 2012. "A note of issue and the accompanying Certificate of Readiness certifies that discovery Is complete and the case Is ready to be tried. If It appears that a material fact In the Certificate of readiness is Incorrect a party can move to vacate the note of issue within 20 days of service [22 NYCRR § 202.21]. " Here the motion to vacate the Note of Issue was made past the twenty day period, is untimely and therefore denied. Furthermore, where the defendants have had sufficient opportunity to complete discovery and have failed to do so, the court may, in its discretion, deny a motion to strike the note of Issue (Easly v. Van Dyke, 110 A.D. 2d 967, 488 N.Y.S. 2d 108 [3'd. Dept. 1985]).

Defendant failed to move to strike the note of issue within twenty days of service and filing with the clerk of the court, the only discovery Item outstanding is the taking of plaintiffs deposition. However, no unusual or unanticipated circumstances have developed following the filing of the note of issue requiring further discovery (Schroeder v. IESI NY Corp. 24 A.D. 3d 180 [1st Dept. 2006}; Orr v. Yun, 74 A.D. 3d 473 [1st Dept. 2010]). Accordingly, the motion to compel discovery is denied.

Leave to amend pleadings pursuant to CPLR 3025 (b) should be freely given upon such terms as may be just. However, free leave Is limited to pleadings which have merit and are neither surprising or prejudicial ( Moon v. Clear Channel Communications, Inc., 307 A.D. 2d 628, 763 N.Y.S. 2d 157 [3d Dept. 2003]). Defendants claim that Plaintiff Is not entitled to collect rent because the certificate of occupancy lists the premises as commercial, while they were rented for residential use. Defendant submits the affidavit of three individuals attesting to this fact. However, It Is not disputed that the lease herein was for commercial use. In addition, a stipulation of settlement signed by the parties In the Commercial Part of the Civil Court under index number L & T 052196/06 (d) states "It Is understood that the condition for Landlord entering Into this agreement Is that Respondent use of the premises Is strictly and only for Commercial purposes, Residential use is Totally Forbidden. (e) The Bar & Preclusion of Residential use extends to any sub-tenant Respondent places Into the premises. " Defendant cannot benefit from his own conduct In violation of the lease and the stipulation of settlement (2009-2001 Third Avenue Corp., v. Firth Ave. Community Center of Harlem, Inc., 169 Misc. 2d 67, 648 N.Y.S. 2d 211 [App. Term 1st Dept. 1996]). Where as here the proposed amendments are merit less leave to amend should be denied (East Asiatic Co. V. Corash, 34 A.D. 2d 432 (1't Dept. 1970]).

In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. (Kioln V. City of New York, 89 NY2d 833; Ayotte v. Gervasio, 81 NY2d 1062, Alvarez v. Prospect Hospital, 68 NY2d 320). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie showing, by producing contrary evidence, In admissible form, sufficient to require a trial of material factuallssuee(Kaufman V. Silver, 90 N.Y2d 2Q4; Amatulll V. Delhi Constr. Corp., 77 NY2d 525; Iselin & Co. V. Mann Judd Landau, 71 NY2d 420). In determining the motion, the court must construe the evidence In the light most favorable to the non-moving party (SSBS Realty Corp. V. Public Service Mut. Ins. Co., 253 AD2d 583; Martin V. Briggs, 235 192).

Plaintiff moves for summary judgment on the Issue of liability and submits the affidavit of its principals Sara Kang and Michael Orelzen. It is un-refuted that defendant entered into a lease with plaintiff for commercial use of the premises and signed a "Good Guy Guarantee", guarantying payment.

Plaintiff 's has established its entitlement to judgment as a matter of Law on the Issue of liability. The "Good Guy Guarantee" obligates defendant to pay any amounts owed by the assignees or any sub-tenants.

Accordingly, It is ORDERED that the motion for leave to amend the answer is denied, and It is further

ORDERED, that the motion to strike the note of Issue is denied, and It Is further

ORDERED, that the motion to compel discovery is denied, and It Is further

ORDERED, that the cross motion for summary judgment on liability Is granted,

the clerk of the court is Directed to enter judgment In favor of plaintiff and against defendant on the Issue of liability, and It Is further ORDERED, that plaintiff shall within 30 days from the date of entry of that order, serve a copy of this order with notice of entry upon counsel for all parties and upon the clerk of the Trial Support Office (Room f68), and said clerk shall cause the matter to be placed on the calendar for an inquest on damages.

Dated: August 15, 2012