3350 BW 136 Inc. v. Perez

3350 BW 136 Inc. v Perez (2023 NY Slip Op 03538)

3350 BW 136 Inc. v Perez

2023 NY Slip Op 03538

Decided on June 29, 2023

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 29, 2023
Before: Kern, J.P., Moulton, Mendez, Shulman, Rodriguez, JJ.
Index No. 652363/22 Appeal No. 592 Case No. 2023-00365

Altschul & Altschul, New York (Mark M. Altschul of counsel), for appellant.

Brian R. Hoch, White Plains, for respondent.

Order, Supreme Court, New York County (Suzanne J. Adams, J.), entered January 10, 2023, which, to the extent appealed from, denied plaintiff's motion for summary judgment in lieu of complaint, unanimously affirmed, without costs.

Plaintiff commenced this action by summary judgment in lieu of complaint for unpaid rent of a retail store that was personally guaranteed by defendant, relying on, among other things, the lease, the guarantee, and a tenant ledger covering the period from August 2011 through July 2021. In opposition, defendant raised an issue of fact as to the amount of rent due and owing to plaintiff by submitting the affidavit of the retail store's manager, who averred that the only outstanding rent owed was the rent due for the period when the store was forced to close as a result of the Covid-19 pandemic, and not the amount plaintiff alleged (see e.g. Jones v Madison Plaza Commercial Owners LLC, 173 AD3d 599, 600 [1st Dept 2019]), which included the pre-pandemic as well as the pandemic period. Accordingly, plaintiff was not entitled to expedited CPLR 3213 treatment on its claim.

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

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 29, 2023