18 E. 41st St. Partners LLC v. Gamlieli

18 E. 41st St. Partners LLC v Gamlieli 2024 NY Slip Op 32370(U) July 11, 2024 Supreme Court, New York County Docket Number: Index No. 153624/2021 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

INDEX NO. 153624/2021 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 07/11/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ---------------------------------------------------------------------------------X INDEX NO. 153624/2021 18EAST41STSTREETPARTNERSLLC MOTION DATE 05/11/2024 Plaintiff, MOTION SEQ. NO. 003 -v- ITAY GAMLIELI, DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 003) 52, 53, 54, 55, 56, 57, 58, 59,60,61, 62,63,64, 65,66,67,68,69, 70, 71 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER

Upon the foregoing documents, and after oral argument which took place on March 12,

2023, with Henry E. Rakowski, Esq. appearing for Plaintiff 18 East 415t Street Partners LLC,

("Plaintiff'), and Robert Garson, Esq. appearing for Defendant ltay Gamlieli ("Defendant").

Plaintiff's motion for summary judgment as to liability is granted in part and denied in part.

I. Background

Plaintiff owns the building located at 18 East 41st Street New York, New York 10017 (the

"Building") (NYSCEF Doc. 1 at ii 1). Gamlieli Zweig, Inc. ("Tenant") is a now dissolved real

estate brokerage firm which leased the tenth floor of the Building (the "Premises") pursuant to a

written lease (the "Lease") dated December 15, 2016 (id. at ii 5). Defendant Itay Gamlieli executed

a written guaranty of the Lease on December 12, 2016 (id. at ii 6). Plaintiff alleges that Tenant

defaulted by failing to pay rent in March of 2020. Tenant remained in the Premises for another

sixteen months until June of 2021, when it provided notice of its intention to vacate on June 7,

2021. Plaintiff seeks to recoup damages for Tenant's default from Defendant pursuant to the

written guaranty. 153624/2021 18 EAST 41ST STREET PARTNERS vs. GAMLIELI, ITAY Page 1of6 Motion No. 003

[* 1] 1 of 6

INDEX NO. 153624/2021 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 07/11/2024

Plaintiff is seeking summary judgment against Guarantor for arrears in the sum of

$352,614.16, additional rent due in the sum of$290,012.66, and for attorneys' fees. Plaintiff argues

it is entitled to summary judgment based on the unambiguous terms of the lease and guaranty, as

well as the rent ledger produced. Plaintiff asserts that Defendant was provided a rent statement

dated June 1, 2021 yet never objected to the statement. Plaintiff argues the rent statement shows

arrears evidencing the tenant's default and guarantor's liability.

In opposition, Defendants argue the evidence used to support Plaintiffs motion is hearsay.

Defendant further argues that Plaintiffs own submissions create an issue of fact as to damages

because Plaintiffs fact affidavit in support of the motion contradicts with the alleged amounts

owed in the complaint and ledger. Defendant also alleges that the ledger produced does not

evidence any rent abatements credited and therefore is insufficient to award Plaintiff damages

related to recovery of any rent abatement. In reply, Plaintiff argues that Defendant's have only

asserted conclusory and self-serving arguments. Plaintiff also produced records on reply indicating

the rent abatement provided prior to Defendant's default.

II. Discussion

A. Standard

Summary judgment is a drastic remedy, to be granted only where the moving party has

tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v

Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and

on a motion for summary judgment, facts must be viewed in the light most favorable to the non-

moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).

Once this showing is made, the burden shifts to the party opposing the motion to produce

evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact

153624/2021 18 EAST 41ST STREET PARTNERS vs. GAMLIELI, ITAY Page 2 of 6 Motion No. 003

[* 2] 2 of 6

INDEX NO. 153624/2021 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 07/11/2024

which require a trial (see e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980];

Pemberton v New York City Tr. Auth., 304 AD2d 340, 342 [1st Dept 2003]). Mere conclusions of

law or fact are insufficient to defeat a motion for summary judgment (see Banco Popular North

Am. v Victory Taxi Mgt., Inc., 1 NY3d 381 [2004]). In order to establish a claim for breach of

contract, there must be "the existence of a contract, the Plaintiffs performance thereunder, the

Defendant's breach thereof, and resulting damages" (Markov v Katt, 176 AD3d 401, 401-02 [1st

Dept 2019]).

B. Plaintiff Meets its Prima Facie Burden as to Liability

Plaintiff has made its prima facie showing of entitlement to unpaid rent as the existence of

the lease and guaranty is not in dispute. Further, there is no dispute that Plaintiff performed under

the terms of the lease. Nor is it disputed that tenant defaulted under the terms of the lease and that

Defendant agreed to guarantee tenant's defaults. Finally, the ledgers and rent statements produced

show that Plaintiff was damaged as it lost expected income from the lease. Defendant has provided

no evidence to rebut any of Plaintiffs claims as to liability. Based on the undisputed facts and the

unambiguous terms of the lease and guaranty, which were negotiated by commercial entities,

Plaintiff is entitled to summary judgment on liability (see Center for Specialty Care, Inc. v CSC

Acquisition I, LLC, 185 A.D.3d 34 [1st Dept 2020]).

C. Issues of Fact Exist as to Damages

Viewing the facts in the light most favorable to the non-movant, the Court finds there are

issues of fact regarding the total damages owed to Plaintiff which preclude granting summary

judgment as to damages. Although the ledger indicates that as of June 2021 $381,581.75 is due,

the Torre affidavit indicates that as of September 2021 the tenant owed $352,614.16. The Plaintiff

likewise concedes in the Torre affidavit that there are inaccuracies in its ledger (see NYSCEF Doc.

153624/2021 18 EAST 41ST STREET PARTNERS vs. GAMLIELI, ITAY Page 3 of 6 Motion No. 003

[* 3] 3 of 6

INDEX NO. 153624/2021 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 07/11/2024

54 at ~ 28). Moreover, Plaintiff failed to provide the rent abatement statements which it seeks to

recoup until it filed reply papers and therefore Defendant was deprived of an opportunity to rebut

those statements (see Ruland v 130 FG, LLC, 181 AD3d 441 [1st Dept 2020] [on a motion for

summary judgment, a fundamental deficiency in the moving papers cannot be remedied with

evidence submitted in reply]). Therefore, Plaintiffs motion for summary judgment is denied as to

damages, and the Court refers the issue of damages to a Special Referee to hear and report.

Accordingly, it is hereby,

ORDERED that Plaintiff 18 East 41 st Street Partners LLC' s motion for summary judgment

against Defendant Itay Gamlieli on the issue of liability is granted; and it is further

ORDERED that a Judicial Hearing Officer ("JHO") or Special Referee shall be designated

to hear and report to this court on the issue of the total amount of damages due and owing, including

base rent additional rent under the first cause of action, reimbursement of rent abatements pursuant

to the second cause of action, and attorneys' fees pursuant to the third cause of action; and it is

further

ORDERED that the powers of the JHO/Special Referee shall not be limited beyond the

limitations set forth in the CPLR; and it is further

ORDERED that this matter is hereby referred to the Special Referee Clerk for placement

at the earliest possible date upon the calendar of the Special Referees Part (Part SRP), which, in

accordance with the Rules of that Part (which are posted on the website of this court), shall assign

this matter at the initial appearance to an available JHO/Special Referee to hear and report as

specified above; and it is further

ORDERED that counsel shall immediately consult one another and counsel for

plaintiff/petitioner shall, within 15 days from the date of this Order, submit to the Special Referee

153624/2021 18 EAST 41ST STREET PARTNERS vs. GAMLIELI, ITAY Page 4 of 6 Motion No. 003

[* 4] 4 of 6

INDEX NO. 153624/2021 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 07/11/2024

Clerk by e-mail an Information Sheet (accessible at the "References" link on the court's website)

containing all the 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 it is further

ORDERED that on the initial appearance in the Special Referees Part the parties shall

appear for a pre-hearing conference before the assigned JHO/Special Referee and the date for the

hearing shall be fixed at that conference; the parties need not appear at the conference with all

witnesses and evidence; and it is further

ORDERED that, except as otherwise directed by the assigned JHO/Special Referee for

good cause shown, the trial of the issue(s) specified above shall proceed from day to day until

completion and counsel must arrange their schedules and those of their witnesses accordingly, and

it is further

ORDERED that counsel shall file memoranda or other documents directed to the assigned

JHO/Special Referee in accordance with the Uniform Rules of the Judicial Hearing Officers and

the Special Referees (available at the "References" link on the court's website) by filing same with

the New York State Courts Electronic Filing System (see Rule 2 of the Uniform Rules); and it is

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 it is further

ORDERED that, unless otherwise directed by this court in any Order that may be issued

together with this Order of Reference to Hear and Report, the issues presented in any motion

153624/2021 18 EAST 41ST STREET PARTNERS vs. GAMLIELI, ITAY Page 5 of 6 Motion No. 003

[* 5] 5 of 6

INDEX NO. 153624/2021 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 07/11/2024

identified hereof shall be held in abeyance pending submission of the Report of the JH O/Special

Referee and the determination of this court thereon.

ORDERED that within ten (10) days of entry, counsel for Plaintiff 18 East 415t Street

Partners LLC shall serve a copy of this Decision and Order, with notice of entry, on all via

NYSCEF.

This constitutes the Decision and Order of the Court.

7/11/2024 DATE

CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION

GRANTED D DENIED x GRANTED IN PART D OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT ~ REFERENCE

153624/2021 18 EAST 41ST STREET PARTNERS vs. GAMLIELI, ITAY Page 6 of 6 Motion No. 003

[* 6] 6 of 6