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.
NYSCEF DOC. NO. 72 

INDEX NO. 153624/2021 

RECEIVED NYSCEF: 07/11/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. MARY V. ROSADO 

Justice 

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18EAST41STSTREETPARTNERSLLC 

Plaintiff, 

- v -

ITAY GAMLIELI, 

Defendant. 

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PART 33M 

INDEX NO. 153624/2021 

MOTION DATE 05/11/2024 

MOTION SEQ. NO. 003 

DECISION + ORDER ON 

MOTION 

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 

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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 nonmoving 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 

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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. 

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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 

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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 

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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: 

APPLICATION: 

CHECK IF APPROPRIATE: 

CASE DISPOSED 

GRANTED 

SETTLE ORDER 

x NON-FINAL DISPOSITION 

D DENIED x GRANTED IN PART 

SUBMIT ORDER 

INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 

153624/2021 18 EAST 41ST STREET PARTNERS vs. GAMLIELI, ITAY 

Motion No. 003 

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D OTHER 

~ REFERENCE 

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