### 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 ---------------------------------------------------------------------------------X

18EAST41STSTREETPARTNERSLLC Plaintiff, 

### - v - ITAY GAMLIELI, Defendant. 

### ---------------------------------------------------------------------------------X 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 summaryjudgment as to liability is granted in part and denied in part. I. Background Plaintiffowns the building located at 18 East 41st StreetNew 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 ofthe Building (the "Premises") pursuant to a writtenlease (the "Lease") datedDecember 15, 2016 (id. at

### ii 5). DefendantItay Gamlieli executed
a written guaranty ofthe Lease on December 12, 2016 (id. at 

### ii 6). Plaintiffalleges that Tenant defaulted by failing to pay rent in March of2020. Tenant remained in the Premises for another sixteen months until June of2021, when it provided notice ofits intention to vacate on June 7, 2021. Plaintiff seeks to recoup damages for Tenant's default from Defendant pursuant to the written guaranty.

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Plaintiff is seeking summary judgment against Guarantor for arrears in the sum of $352,614.16, additionalrentdue inthe sumof$290,012.66, andfor attorneys' fees. Plaintiffargues it is entitled to summaryjudgment based on the unambiguous terms ofthe lease and guaranty, as well as the rent ledger produced. Plaintiffasserts that Defendant was provided a rent statement dated June 1, 2021 yet never objected to the statement. Plaintiffargues the rent statement shows
arrears evidencing the tenant's default and guarantor's liability. In opposition, Defendants argue the evidence used to support Plaintiffsmotionis hearsay. Defendant further argues that Plaintiffs own submissions create an issue offact as to damages because Plaintiffs fact affidavit in support ofthe 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 ofany rent abatement. In reply, Plaintiffargues that Defendant's have only asserted conclusory and self-serving arguments. Plaintiffalso producedrecords onreply indicating the rent abatement provided priorto Defendant's default. II. Discussion A. Standard Summaryjudgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence ofany material issues offact." (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burdenis a heavy one and
on a motion for summaryjudgment, facts must be viewed in the light most favorable to the nonmoving party." (Jacobsen vNew York City Health andHasps. Corp., 22 NY3d 824, 833 [2014]). Once this showing is made, the burden shifts to the party opposing the motion to produce evidentiary proof, inadmissible form, sufficientto establishthe existence ofmaterial issues offact

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which require a trial (see e.g., Zuckerman v City ofNew 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 summaryjudgment (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 ofa 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. PlaintiffMeets its PrimaFacie Burden as to Liability Plaintiffhas made itsprima facie showing ofentitlementto unpaid rent as the existence of the lease and guaranty is not in dispute. Further, there is no dispute that Plaintiffperformed under the terms ofthe lease. Nor is it disputed that tenant defaulted underthe terms ofthe lease and that Defendant agreed to guarantee tenant's defaults. Finally, the ledgers and rent statementsproduced showthatPlaintiffwas damaged as itlost expected income from the lease. Defendanthas provided
no evidence to rebut any ofPlaintiffs claims as to liability. Based onthe undisputed facts and the unambiguous terms of the lease and guaranty, which were negotiated by commercial entities, Plaintiffis entitled to summaryjudgment on liability (see Centerfor Specialty Care, Inc. v CSC Acquisition I, LLC, 185 A.D.3d 34 [1st Dept 2020]). C. Issues ofFactExist as to Damages Viewing the facts in the light most favorable to the non-movant, the Court finds there are issues offact regarding the total damages owed to Plaintiffwhich preclude granting summary judgment as to damages. Although the ledger indicates that as ofJune 2021 $381,581.75 is due, the Torre affidavit indicatesthat as ofSeptember 2021 the tenant owed $352,614.16. The Plaintiff likewise concedesinthe Torre affidavitthatthere are inaccuraciesinits ledger (see NYSCEF Doc.

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54 at**~** 28). Moreover, Plaintifffailed to provide the rent abatement statements which it seeks to recoup until it filed reply papers and therefore Defendant was deprived ofan 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, Plaintiffsmotion for summaryjudgmentis denied as to damages, and the Court refers the issue ofdamages to a Special Referee to hear and report. Accordingly, it is hereby, ORDEREDthatPlaintiff18 East41 st Street Partners LLC'smotion for summaryjudgment against Defendant Itay Gamlieli onthe issue ofliability is granted; and it is further ORDERED that a Judicial Hearing Officer ("JHO") or SpecialReferee shall be designated tohear andreporttothis courtontheissue ofthe total amountofdamages due and owing, including base rent additional rentunderthe first cause ofaction, reimbursementofrent abatementspursuant to the second cause ofaction, and attorneys' fees pursuant to the third cause ofaction; and it is further ORDERED that the powers ofthe 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 ofthe Special Referees Part (Part SRP), which, in accordance withthe Rules ofthat Part (which are posted onthe website ofthis 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 ofthis Order, submitto 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 informationcalledfortherein andthat, as soonas practical thereafter, the Special Referee Clerk shall advise counsel for the parties ofthe date fixed for the appearance ofthe matter upon the calendar ofthe 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 ofthe issue(s) specified above shall proceed from day to day until completion and counsel must arrangetheir schedules and those oftheirwitnesses 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 ofthe Judicial Hearing Officers and the Special Referees (available atthe "References"linkonthe court'swebsite) by filing same with the New York State Courts Electronic Filing System (see Rule 2 ofthe Uniform Rules); and it is further ORDEREDthat any motionto confirm ordisaffirmthe Report ofthe 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 itis 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 hereofshall be held in abeyance pending submission ofthe Report ofthe JHO/Special Referee and the determination ofthis courtthereon. 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 ofthe 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

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