GHH Assoc. LLC v. Trenchant Funds

GHH Assoc. LLC v Trenchant Funds (2024 NY Slip Op 03328) GHH Assoc. LLC v Trenchant Funds 2024 NY Slip Op 03328 Decided on June 18, 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: June 18, 2024 Before: Manzanet-Daniels, J.P., Kennedy, Scarpulla, Shulman, Higgitt, JJ. Index No. 156936/20 Appeal No. 2527 Case No. 2023-05728 [*1]GHH Associates LLC, Respondent, v Trenchant Funds, et al., Appellants, GG Assets LLC, et al., Nonparty Respondents. Fox Rothschild LLP, New York (Matthew J. Schenker of counsel), for appellants. Kucker Marino Winiarsky & Bittens, LLP, New York (Michael S. Bennett of counsel), for GHH Associates LLC, respondent. Order, Supreme Court, New York County (Verna Saunders, J.), entered June 2, 2023, which, insofar as appealed from, granted plaintiff GHH Associates LLC's motion for the substitution of GG Assets LLC, Gorjian Assets LLC, BHH Properties LLC, and Joe H Properties LLC as plaintiffs in the action, and upon substitution, granted summary judgment to plaintiffs on the first claim for breach of contract in the amended complaint, dismissed defendants' affirmative defenses and counterclaims, and directed entry of judgment in the amount of $84,644.19, unanimously modified, on the law, to reduce the judgment by the $41,580 drawn down from defendants tenant's letter of credit, and otherwise affirmed, without costs. The motion court providently granted that branch of plaintiff landlord GHH Associates LLC's motion to substitute the new owners of the building as plaintiffs in the action and to amend the caption accordingly (CPLR 1018; CPLR 1021; Real Property Law § 223). The only amendment to the complaint was the substitution of the new owners-plaintiffs, and defendants previously interposed an answer to the substantive claims. Therefore, the court properly decided the summary judgment motion before defendants answered the new pleading (see e.g. First Am. Tit. Ins. Co. v Chavannes, 176 AD3d 678, 680 [2d Dept 2019], lv dismissed 35 NY3d 998 [2020]). Plaintiffs established their prima facie entitlement to summary judgment on their first claim for breach of contract seeking rent and additional rent against defendant tenant Trenchant Funds, USA LLC by identifying the lease, the tenant's failure to pay rent and additional rent due and owing, and resulting damages (see Fawer v Shipkevich PLLC, 213 AD3d 408, 408 [1st Dept 2023]). Defendants failed to raise a genuine issue of material fact as to plaintiff's performance under the lease based on an alleged reduction in building hours and services for two months during the pandemic. Defendants did not lay bare their proofs as to the extent the tenant was not able to use the premises, what specific damages were suffered as a result of the purported closures and limited elevator service, or why further discovery from plaintiffs would be necessary to quantify their own damages (see Erkan v McDonald's Corp., 146 AD3d 466, 467 [1st Dept 2017]). For the same reasons, defendants' affirmative defenses and counterclaim arising from the same allegations were properly dismissed under paragraph 27 of the lease, which required the payment of rent irrespective of inconveniences or interruptions in services. We modify the order solely to reduce the judgment on the first claim by the $41,580 drawn down from the tenant's letter of credit. The court directed judgment to be entered on the unpaid rent and additional rent; because plaintiffs have already availed themselves of this credit before establishing any other damages, the judgment should be reduced in that amount as contemplated by paragraph 34 the lease, notwithstanding that the [*2]third claim in the amended complaint seeking post-vacatur damages remains outstanding. We have considered defendants' remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: June 18, 2024