Harlem Multifamily LLC v. Reifer

Harlem Multifamily LLC v Reifer 2024 NY Slip Op 33856(U) October 28, 2024 Supreme Court, New York County Docket Number: Index No. 850009/2020 Judge: Andrew Borrok 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.

[FILED: NEW YORK COUNTY CLERK 10/28/2024 12:46 P~ INDEX NO. 850009/2020 NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 10/28/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 53 ----------------------------------------------------------------------------------- X

HARLEM MULTIFAMILY LLC INDEX NO. 850009/2020

Plaintiff, MOTION DATE 08/01/2024 - V - MOTION SEQ. NO. 006 DANIEL REIFER,

Defendant. DECISION+ ORDER ON MOTION ----------------------------------------------------------------------------------- X

HON. ANDREW BORROK:

The following e-filed documents, listed by NYSCEF document number (Motion 006) 320, 321, 322, 323, 324,325,326,327,328,329,330,331 were read on this motion to/for RENEWAL

Upon the foregoing documents, the Daniel Reifer's motion for renewal (Mtn. Seq. No. 006) is

DENIED.

Pursuant to CPLR 2221, a motion for leave to renew shall be based on new facts not offered on

the prior motion or a change in the law that would change the prior determination, and a

reasonable justification for the failure to present such facts on the prior motion (CPLR 2221;

Foley v Roche, 68 AD2d 558, 568 [1st Dept 1979]). Although motions to renew are addressed to

the court's sound discretion (William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept

1992]), such motions should be "granted sparingly" and are not a second chance for parties who

have not exercised due diligence submitting facts in the prior motion (Beiny v Wynyard (In re

Beiny), 132 AD2d 190, 209-210 [1st Dept 1987]). Failure to include facts known to the movant

at the time of the prior motion but not included in the movant' s prior submissions cannot serve as

the basis for a renewal motion. 850009/2020 HARLEM MULTIFAMILY LLC vs. EIGHT-115 ASSOCIATES, LLC Page 1 of4 Motion No. 006

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By Decision and Order dated May 30, 2024 (the Prior Decision; NYSCEF Doc. No. 309), this

Court granted the plaintiff's motion for summary judgment, holding, among other things, that (i)

the underlying loan to which Mr. Reifer was a guarantor defaulted automatically according to its

terms after the borrower failed to correct certain Violations of the loan documents within six

months, (ii) the First and Second Loan Guaranties (NYSCEF Doc Nos. 277, 283) did not entitle

the Guarantor to any offset of any kind and waived all defenses except for payment, and thus (iii)

there existed no issue of fact that the loan was in default and that there had been no waiver of the

accrual of interest at the Default Rate.

Mr. Reifer' s motion for renewal is predicated on his recent discovery of an October 2019 bank

statement (the October 2019 Statement; NYSCEF Doc. No. 323) which, according to Mr.

Reifer's affidavit (NYSCEF Doc. No. 324), he discovered to be in his possession only after the

Court issued its Prior Decision. According to Mr. Reifer, the October 2019 Statement shows that

the plaintiff's predecessor-in-interest (Signature Bank) charged late fees instead of default

interest, and applied payments to both the loan principal and interest at the contractual (i.e., not

default) rate. Mr. Reifer therefore argues he is entitled to renewal because this October 2019

Statement shows that Signature Bank waived its right to seek default interest. The argument fails

for at least two reasons.

First, Mr. Reifer fails to offer any reasonable justification for his failure to present the October

2019 Statement to the Court in support of his opposition to the plaintiff's summary judgment

motion (Mtn. Seq. No. 005), and the motion must be denied on this basis alone (Foley, 68 AD2d

at 568). Mr. Reifer's affidavit states that the October 2019 Statement was the "only" statement 850009/2020 HARLEM MULTIFAMILY LLC vs. EIGHT-115 ASSOCIATES, LLC Page 2 of 4 Motion No. 006

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he was able to locate, and that he was not aware he was in possession of this document because

he had received no other statements (NYSCEF Doc. No. 324 ,i 6). This new assertion, however,

is inconsistent with Mr. Reifer's previous affidavit (NYSCEF Doc. No. 201) offered in

opposition to the plaintiffs prior motion to amend its complaint (Mtn. Seq. No. 003), to which

Mr. Reifer attached as an exhibit a December 2019 statement from Signature Bank (NYSCEF

Doc. No. 202). Even putting that inconsistency aside, this does not constitute a reasonable

excuse because Mr. Reifer has evidently been in possession of this October 2019 Statement for

years and he offers no reasonable justification for his failure to adduce it previously. Renewal is

not appropriate where the movant has simply failed to exercise due diligence in making his first

factual presentation (Beiny, 132 AD2d at 210). Thus, the motion must be denied for this reason.

Second, Mr. Reifer' s motion must also be denied because it would not change the prior

determination. As discussed in the Prior Decision, the loan documents are clear that the

guarantor waived all defenses except payment, including election of remedies (NYSCEF Doc.

No. 309, at 2-3). The loan documents are also clear that all remedies are cumulative, and that

Signature Bank's decision to exercise one remedy does not preclude it from the concurrent or

subsequent exercise of any other right or remedy:

All remedies provided in this Mortgage are distinct from and cumulative to any other right or remedy under this Mortgage, the Note, any guarantee of the payment of the Note and/or of this Mortgage or any other agreement between, among others, if any, the Mortgagor and the Mortgagee executed simultaneously or in connection herewith, or afforded by law or equity, and may be exercised concurrently, independently or successively. Wherever in this Mortgage the prior consent of the Mortgagee is required, the. consent of the Mortgagee given as to one such transaction shall not be deemed to be a waiver of the right to require such consent to future or successive transactions. Any such consents shall be in writing.

(NYSCEF Doc. No. 275 § 2.2[o] [emphasis added]).

850009/2020 HARLEM MULTIFAMILY LLC vs. EIGHT-115 ASSOCIATES, LLC Page 3 of 4 Motion No. 006

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If Guarantor becomes liable for any indebtedness owing by Borrower to Lender by endorsement or otherwise other than under this Guaranty such liability shall not be in any manner impaired or affected hereby and the rights of Lender hereunder shall be cumulative of any and all other rights that Lender may ever have against Guarantor. The exercise by Lender of any right or remedy hereunder or under any other instrument or at law or in equity shall not preclude the concurrent or subsequent exercise of any other right or remedy.

(NYSCEF Doc. No. 277 § 5.10 [emphasis added]).

Thus, Signature Bank's decision to charge late fees did not effect a waiver of any other remedy,

including the charging of default interest, and Mr. Reifer's late production of the October 2019

Statement does not change the prior determination made by this Court in its Prior Decision.

The Court has considered the parties' remaining arguments and found them unavailing.

Accordingly, it is hereby

ORDERED that Mr. Reifer's motion for renewal (Mtn. Seq. No. 006) is denied.

10/28/2024 DATE ANDREW BORROK, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE 850009/2020 HARLEM MULTIFAMILY LLC vs. EIGHT-115 ASSOCIATES, LLC Page4 of 4 Motion No. 006

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