Diamond Realty Mgt., LLC v. Yakub Gold Inc

Diamond Realty Mgt., LLC v Yakub Gold Inc (2024 NY Slip Op 02588) Diamond Realty Mgt., LLC v Yakub Gold Inc 2024 NY Slip Op 02588 Decided on May 09, 2024 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: May 09, 2024 Before: Kern, J.P., Oing, Kennedy, Scarpulla, Pitt-Burke, JJ. Index No. 159522/20 Appeal No. 2240 Case No. 2023-01301 [*1]Diamond Realty Management, LLC, Plaintiff-Respondent, v Yakub Gold Inc Doing Business as Nelly's Fine Jewelry, et al., Defendants-Appellants. Jacobs P.C., New York (Eduard Kushmakov of counsel), for appellants. Tarter Krinsky & Drogin LLP, New York (Michael D. Capozzi of counsel), for respondent. Amended order, Supreme Court, New York County (Richard Latin, J.), entered February 6, 2023, which granted plaintiff's motion for summary judgment, deemed an appeal from judgment, same court and Justice, entered February 14, 2023, which entered judgment in favor of plaintiff and against defendants for rent and additional rent of $625,242.20 from April 2020 through November 2022, $44,861.70 in reasonable attorneys' fees, and pre-judgment interest at the statutory rate from April 2020, for a total sum of $832,427.51, and so considered, said judgment unanimously affirmed, with costs. Although a landlord may not recover future rent absent an acceleration clause (see 3rd & 60th Assoc. Sub LLC v Zavolunov, 223 AD3d 488, 491 [1st Dept 2024]; Utility Garage Corp. v National Biscuit Co., 71 AD2d 578, 578-579 [1st Dept 1979]), this case does seek future taxes and rents "for the remainder of the lease term" (id. at 578), but rent and additional rent only through the date of judgment. We reject defendant's argument that Supreme Court improperly granted an informal motion to amend the pleadings. No amendment was necessary, as the first cause of action asserted in the complaint sought all rent and additional rent "which may become due and owing to Plaintiff by Defendants from December 1, 2020 through and including the date Plaintiff obtains judgment against Defendants" (see Castor Petroleum, Ltd. v Petroterminal de Panama, S.A., 90 AD3d 424, 424 [1st Dept 2011]). Even if required, the pleadings were correctly conformed to the proof (see e.g. Libeson v Copy Realty Corp., 167 AD2d 376, 377 [2d Dept 1990]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: May 9, 2024