104 Second Realty, LLC v. Beer Factory LLC

104 Second Realty, LLC v Beer Factory LLC (2020 NY Slip Op 02886)

104 Second Realty, LLC v Beer Factory LLC

2020 NY Slip Op 02886

Decided on May 14, 2020

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 on May 14, 2020
Friedman J.P., Gische, Kapnick, González, JJ.
11524 152095/18

Cutler Minikes & Adelman LLP, New York (Jonathan Z. Minikes of counsel), for appellant.

Andrew B. Schultz, Astoria, for respondents.

Order, Supreme Court, New York County (Louis L. Nock, J.), entered September 27, 2019, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment and a default judgment, unanimously affirmed, without costs.

Given the allegation of a lockout in November 2017, the evidence submitted by defendants that their property remained inside the premises, and defendants' counterclaim for unjust enrichment, summary judgment in plaintiff's favor is precluded by a triable issue of fact as to whether plaintiff prevented defendants from carrying out the surrender obligations under the lease and guaranties (see Insurance Corp. of N.Y. v Central Mut. Ins. Co., 47 AD3d 469, 472 [1st Dept 2008]). This result extends to plaintiff's motion for a default judgment against defendant Pitsionas, the non-appearing defendant-guarantor, against whom the identical allegations are asserted (see CPLR 3215[f]).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 14, 2020

CLERK