PB 2180 Pitkin Ave. LLC v. Tress

PB 2180 Pitkin Ave. LLC v Tress 2024 NY Slip Op 33674(U) October 4, 2024 Supreme Court, Kings County Docket Number: Index No. 527385/19 Judge: Ingrid Joseph 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.

INDEX NO. 527385/2019 ; FILED: ~---- KINGS ---- NYSCEF DOC. NO. 52 COUNTY - - - -CLERK - - - -10/08/2024 - - - - - - - 04:40 - - - -PM ~ RECEIVED NYSCEF: 10/08/2024 I I .1

At an lAS IAS Part Part 83 of the Supreme of the Supreme Court Court of the State ofthe State

PRESENT: PRESENT: HON.

SUPREME INGRJD JOSEPH, HON. INGRID SUPREME COURT COURT OF THE JOSEPH, J.S.C. THE STATE J.S.C. STATE OF * of New York of New York held at 360 Adams 4"'- held in and Adams Street, for the County and for Street, Brooklyn, of &/ul,d2024. day of Dt.hJ"d2024.

County of Brooklyn, New New York, Kings of Kings York, on the

NEW YORK NEW YORK COUNTY COUNTY OF KINGS KINGS ------------------------------------X ------------------------------------X 2180 PITKINAVENUELLC, PB 2180 PITKIN A VENUE LLC, Plaintiff, Plaintiff, Motion Seq. 1-2 Motion - against against- - Index No. Index No. 527385/19 527385/19 DECISION AND DECISION AND ORDER ORDER MARK TRESS, MARKTRESS, Defendant.

Defendant. -- -- -- -- -.;.-- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -x -X The following e-filed The following papers read e-filed papers read herein: herein: NYSCEF Doc NYSCEF Doc Nos. Nos. Notice of Notice Motion/Order to Show of Motion/Order Show Cause/ Cause/ Petition/Cross Motion Petition/Cross Motion andand Affidavits (Affirmations) Affidavits (Affirmations) Annexed Annexed _ _ _ _ __ 13-26 30-32 Opposition Affidavits {Affinnations) Opposition Affidavits Annexed__ (Affirmations) Annexed __ 36-37 36-37 46-50 Reply Memorandum of Reply Memorandum of Law Law _ _ _ _ _ _ _ __ 40-45

Upon the Upon the foregoing foregoing papers papers in this this action action for breach breach of of a settlement settlement agreement agreement and a personal personal guaranty, guaranty, plaintiff 2180 Pitkin plaintiff PB 2180 Pitkin Avenue A venue LLC LLC (PB 2180 2180 or Plaintiff) Plaintiff) moves moves (in motion motion sequence sequence [mot. seq.] one) one) for an order, pursuant to CPLR order, pursuant 3212, granting CPLR 3212, granting it summary judgment summary judgment (NYSCEF (NYSCEF Doc Doc No. 13). Defendant Defendant Mark Mark Tress Tress (Tress (Tress or Defendant) Defendant) cross-moves cross-moves (in mot. seq. two) for an order:(]) two) order: (1) dismissing dismissing the complaint, complaint, pursuant pursuant to CPLR CPLR 3211 (a) (7); (2) dismissing dismissing the complaint, pursuant to CPLR complaint, pursuant and/or (3) dismissing CPLR 3211 (a) (1); and/or the complaint, dismissing the pursuant to CPLR complaint, pursuant CPLR 3212 (NYSCEF (NYSCEF Doc No. 30).

Doc No. On December December 17, 2019, 2180, the owner 2019, PB 2180, landlord of owner and landlord of a commercial building at commercial building 2186-2188 Pitkin Avenue 2186-2188 Pitkin Brooklyn (Property), Avenue in Brooklyn (Property), commenced this action commenced this action by filing filing a summons summons and a complaint complaint against against Tress guarantor of Tress as guarantor tenant's rent of its tenant's rent (NYSCEF (NYSCEF Doc No. 1). The complaint Doc No.1). complaint alleges alleges that: "Mark "Mark Tress Tress was was the personal guarantor the personal guarantor for Tenant Tenant (Kinder (Kinder Stuff Stuff 10 LLC LLC who who maintained maintained space space at [the Property]) Property]) under_ under. the the terms terms and and conditions conditions of of a Lease Lease between between thethe Plaintiff Plaintiff and and the the Tenant.

Tenant. The The guaranty guaranty obligates obligates Mark· Mark Tress Tress to guarantee guarantee the the full and and timely timely performance and performance and observance observance ofof all the covenants, covenants, terms, terms, conditions conditions and and agreements agreements in the the Lease Lease that that are to be performed performed and and observed observed by the the Tenant, Tenant, including including for rental rental payments payments up to when when the the

The complaint complaint alleges alleges that that "Tenlµlt breached the Lease "Ten<;mtbreached between the Lease between parties in failing the parties failing to pay pay rent rent and additional additional expenses that it was expenses that was contractually contractually obligated obligated to pay pay for starting starting the the month month of of August August 2012" 2012" and "Plaintiff "Plaintiff commenced commenced a summary summary holdover holdover proceeding proceeding against against Tenant Tenant and Defendant Defendant to recover recover the the rent rent and and additional additional rent" (id at ,r,r rent" (id ~~ 7 and and 8). The The complaint complaint alleges alleges that that the parties parties "executed "executed a stipulation stipulation of of settlement settlement dated dated August August 31, 2013 13 acJmowledging ac~owledging that that the rental rental arrears arrears from from August August 1, 2012 through 1,2012 through August August 31, 2013 was was at $130,814.00[,]" $130,814.00[,]" after after which which the appellate appellate court court dismissed dismissed the the Landlord Landlord Tenant Tenant Petition Petition as it pertained pertained to Tress Tress for lack lack of of subject subject matter matter Jurisdiction. (id at ,r,r Jurisdiction. (id. ~~ 9 and 15). The The complaint complaint asserts asserts two two causes causes of of action action against against Tress breach of Tress for breach of the the August August 2013 2013 settlement settlement agreement agreement and for breach breach of of the personal guaranty the personal guaranty in the lease. lease.

On January January 22, 2020, 2020, Tress Tress answered answered the the complaint, complaint, denied denied the the material material allegations allegations therein therein and and asserted asserted affirmative affirmative defenses defenses (NYSCEF (NYSCEF Doc Nos. 4 and 8).

Doc Nos. On September September 29, 29, 2022, 2022, PB 2180 2180 moved moved for summary judgment on its claims summary judgment claims against against Tress Tress based based on a fact affidavit affidavit from from Philip Philip Baldeo Baldeo (Baldeo (Baldeo),), Plaintiff's Plaintiff s representative representative who who "participated "participated in the transactions transactions at issue" issue" (NYSCEF Doc No. 26 at ,r (NYSCEF Doc ~ 11). ). Baldeo Baldeo attests attests that that PB 2180 2180 is the the owner owner of of the Property Property and, on or about about December December 1, 2010, non-party 1,2010, non-party Kinder Kinder Stuff Stuff 10 LLC LLC (Tenant) (Tenant) leased leased .the the retail retail space space on the the first first floor, floor, second second floor, floor, basement basement and backyard backyard of of the the Property (id at ,r,r Property (id. ~~ 3- 4). Baldeo Baldeo attests attests that that defendant defendant Tress Tress "was "was the the personal personal guarantor guarantor for Tenant Tenant under under the the terms terms and conditions conditions of of the the Lease" (id at ,r Lease" (id ~ 6). Regarding Regarding the the guaranty, guaranty, Baldeo Baldeo attests attests that: that:

"[t]he "[t]he guaranty guaranty therein, therein, obligated obligated Tress Tress to guarantee guarantee the the full and and timely timely performance observance of performance and observance of all the the covenants, covenants, terms, terms, conditions conditions and agreements agreements in thethe Lease, Lease, including including the the rental rental payments, payments, up to when when the Premises Premises were were returned returned to landlord landlord vacant, vacant, broom broom clean clean and and in the the same same condition commencement of condition at commencement of the the Lease" (id at ,r Lease" (id ~ 7).

Baldeo Baldeo attests attests that that "Tenant "Tenant breached breached ·the the Lease Lease by failing failing to pay pay rent rent and and additional additional expenses expenses beginning beginning in August August 2012" 2012" and "Defendant "Defendant Tress Tress then breached the then breached personal guaranty the personal guaranty by refusing refusing to pay pay the the monies result of monies due as a result of Tenant's Tenant's breach" (id at ,r,r breach" (id ~~ 9-10).

9-10). Baldeo Baldeo attests attests that that "[a]s " [a]s of of this this date, pursuant to the date, pursuant the terms terms of of said said Lease, Lease, there there is due to Plaintiff Plaintiff by Defendant, Defendant,

LLC) REFERENCED HEREIN HEREIN FILLING FILLING FOR FOR BANKRUPTCY PROTECTION BANKRUPTCY PROTECTION UNDER UNDER THE BANKRUPTCY THE BANKRUPTCY CODE CODE THENTHEN THE PRINCIPALS OF THE PRINCIPALS OF SAID SAID CORPORATION CORPORATION SHALL SHALL BE HELD PERSONALLY BE HELD PERSONALLY LIABLE LIABLE FOR FOR ANYANY AND AND ALL ALL SUMS SUMS DUE LANDLORD. The intention DUE LANDLORD. intention being being that, that, the personal liability personal shall only liability shall attach ~f only attach if & when when a Bankruptcy Bankruptcy action action is commenced forestall Landlord's commenced to forestall Landlord's attempt attempt to regain possession of regain possession of the Premises Premises uponupon default payment of default in the payment rent" (NYSCEF of rent" (NYSCEF Doc Doc No. 21 at ,r 28 [emphasis at,-r [emphasis added]). added]).

Thus, Thus, according according to the the record record evidence, personal guaranty evidence, the personal guaranty by Tress Tress only only applies applies if if the Tenant Tenant files for bankruptcy bankruptcy protection. protection. Baldeo Baldeo does testify that does not testify that there there was was any bankruptcy bankruptcy filing by the Tenant after its payment Tenant after payment default. default.

However, Baldeo However, Baldeo also also asserts asserts that that Tress Tress is in breach breach of parties' August of the parties' August 31, 2013 settlement settlement agreement, agreement, in which which Tress Tress specifically specifically agreed agreed to a judgment judgment in Plaintiff Plaintiffss favor favor in the amount amount of$130.814.00, plus $15,000.00 of$130.814.00, plus $15,000.00 in attorneys' attorneys' fees for Tenant's payment default Tenant's payment default (NYSCEF (NYSCEF Doc No. 26 at ,i,i Doc ,-r,-r12-16; see also 12-16; see NYSCEF Doc also NYSCEF Doc No. 22 [settlement [settlement agreement]). 2180 also agreement]). PB 2180 submits submits an attorney attorney affirmation support of affirmation in support of its summary judgment motion summary judgment motion (NYSCEF (NYSCEF Doc No. 14).

Tress, Tress, in opposition, opposition, submits submits only an attorney attorney affirmation affirmation asserting that "since asserting that "since there there was no bankruptcy bankruptcy filing filing for the the Tenant Kinderstuff 10 LLC Tenant Kinderstuff LLC there there can be no personal liability for personal liability Defendant Defendant Mark Mark Tress" Tress" since since that that is a condition condition to the the personal personal guarantee guarantee (NYSCEF (NYSCEF Doc No. 36 Doc No. ,r 3). at,-r at On June June 27, 2023,Tress 2023,Tress cross-moved cross-moved to dismiss dismiss the complaint pursuant to CPLR complaint pursuant CPLR 3211 (a) (1) and/or and/or (a) (7) or for summary judgment, pursuant summary judgment, pursuant to CPLR CPLR 3212 3212 (NYSCEF (NYSCEF Doc No. 30). Tress Doc No. Tress submits only a two-page submits only two-page attorney attorney affirmation affirmation asserting asserting that that "there "there are no outstanding outstanding issues issues of fact, offact,

Tress Tress submits submits a memorandum memorandum oflaw of law arguing arguing that that under under the the terms terms of of the the personal personal guaranty, guaranty, Tress Tress would would only only have have guarantor liability if guarantor liability if the the Tenant Tenant filed for bankruptcy bankruptcy protection, protection, which which did not take take place place (NYSCEF (NYSCEF Doc No. 33 at 2-3). Notably, Doc No. Notably, Tress Tress admits admits in his memorandum memorandum of of law law that that the settlement settlement agreement agreement that that Tress Tress executed executed provides provides at Paragraph Paragraph 3 that "Kinderstuff 10 that "Kinderstuff LLC along along with Mark Tress with Mark Tress agrees agrees to pay pay to [PB 2180] 2180] the the sum sum of of $25,025 $25,025 in 6 equal equal monthly monthly installments installments commencing September 1, 2013 until commencing September until the the sum sum is repaid full" (id repaid in full" (id at 4; see also also NYSCEF Doc NYSCEF No. 22 at 13 Doc No. ~ 3 [settlement [settlement agreement] agreement] [emphasis [emphasis added]). added]).

Summary judgment is a drastic Summary judgment drastic remedy remedy that that deprives litigant of deprives a litigant of his or her her day in court court and should, should, thus, thus, only only be employed employed when when there there is no doubt doubt as to the the absence absence of of triable triable issues issues of of material fact (Kolivas material (Kolivas v Kirchoff, Kirchoff, 14 AD3d AD3d 493 [2d Dept 2005]; see Dept 2005]; see also Andre v Pomeroy, also Andre Pomeroy, 35 NY2d 361, 364 NY2d 364 [[1974]).

1974]). "The "The proponent proponent of of a motion motion for summary judgment must summary judgment must make make a prima prima showing of facie showing of entitlement entitlement to judgment, judgment, as a matter matter of of law, tendering tendering sufficient sufficient evidence evidence to demonstrate absence of demonstrate the absence of any any material material issues issues of fact" (Manicone of fact" (Manicone v City City of New York, 75 AD3d of New AD3d 535, 537 [2d Dept Dept 2010], 2010], quoting Alvarez v Prospect quoting Alvarez Prospect Hosp., Hosp., 68 NY2d NY2d 320, 320, 324 [1986]; see also [1986]; also Zuckerman v Cityo/New Zuckerman City of New York, 49NY2d 49 NY2d 557,562 [1980]; Winegradv 557,562 [1980]; New York Winegradv New York Univ. Med Med. Ctr., NY2d NY2d 851, 853 [1985]). [1985]). If If the the movant movant has has made made a prima prima facie facie showing showing of of entitlement entitlement to summary judgment, "the summary judgment, "the burden burden shifts shifts to the opposing opposing party party to produce produce evidentiary evidentiary proof proof in admissible admissible form form sufficient sufficient to establish establish the the existence existence of of material material issues issues of of fact fact which which require require a trial trial of action" (Garnham of the action" Han Real (Garnham & Han Real Estate Estate Brokers Brokers v Oppenheimer, Oppenheimer, 148 AD2d AD2d 493 [2d Dept Dept 1989]). "The elements of "The elements of a cause cause of of action action to recover recover damages damages for breach breach of of contract contract are the existence of existence of a contract, contract, the the performance performance under under the contract contract of of the the party party seeking seeking relief, relief, the other other party's party's breach, breach, and and resulting damages" (McMahan resulting damages" (McMahan v McMahan, McMahan, 164 AD3d AD3d 1486, 1487 [2d Dept Dept see also 2018]; see Fernandezvv Abatayo, also Fernandez Abatayo, 172 AD3d AD3d 821,822 821,822 [2d Dept Dept 2019]).

2019]). "[A] "[A] written written agreement agreement that that is complete, complete, clear clear and and unambiguous unambiguous on its face must must be enforced enforced according according to the plain plain meaning of meaning terms" (MHR of its terms" (MHR Cap. Partners Partners LP LP v Presstek, Presstek, Inc., Inc., 12 NY3d NY3d 640,645 640, 645 [2009]). [2009]).

Here, Here, Plaintiff Plaintiff has has established established its entitlement entitlement to summary judgment on its first cause summary judgment cause of of action asserted action asserted against against Tress Tress for breach breach of of the parties' parties' August August 2013 2013 settlement settlement agreement agreement based based on Baldeo' Baldeo'ss uncontested uncontested affidavit affidavit testimony testimony and production production of of the the settlement agreement in which settlement agreement which

Tress admittedly Tress admittedly agreed agreed to pay pay to petitioner petitioner the sum of $25,025.00 in 6 equal of$25,025.00 monthly installments equal monthly installments commencing commencing September September 1, 2013 until 1,2013 until the sum is repaid repaid and agreed pay Plaintiff agreed to pay Plaintiff $15,000.00 $15,000.00 in legal fees (see NYSCEF Doc No. 22 at ,i,r NYSCEF Doc ~~ 3 and 5).

In contrast, contrast, Plaintiffs Plaintiff s second second cause cause of of action action for breach breach of of the personal personal guaranty guaranty is precluded precluded since, since, under under the plain plain terms terms of of the guaranty guaranty in the December December 2010 2010 Lease Lease Rider, Rider, Tress Tress only has guarantor guarantor liability liability if if the Tenant Tenant files for b.µikruptcy b~ptcy after after a payment payment default. default. Absent Absent evidence of a bankruptcy evidence of bankruptcy filing Tenant, Plaintiff filing by Tenant, Plaintiff cannot cannot collect collect against against Tress Tress under under the personal personal guaranty. guaranty.

Tress Tress failed failed to submit submit a fact affidavit affidavit from someone with personal someone with personal knowledge knowledge in opposition opposition to Plaintiffs Plaintiffs summary judgl!lent motion summary judgI!1ent motion or in support support of of his summary judgment cross-motion. summary judgment cross-motion. "It is well well settled settled that that on a motion motion for summary judgment, a bare summary judgment, bare affirmation affirmation of of an attorney, attorney, who demonstrates demonstrates no personal personal knowledge knowledge of of the matter, matter, is unavailing unavailing and without without evidentiary evidentiary value" value" (Bahlkow Greenberg, 185 AD2d (Bahlkow v Greenberg, AD2d 829, 831 [2d Dept Dept 1992]). Consequently, absent any identifiable Consequently, absent identifiable issue issue of of fact for trial, trial, summary judgment is appropriate summary judgment appropriate and warranted warranted in favor favor of Plaintiff on of the Plaintiff its first cause cause of of action action for breach breach of of the December December 2013 settlement settlement agreement. Accordingly, it is agreement. Accordingly, hereby hereby ORDERED ORDERED that that Plaintiffs Plaintiffs summary judgment motion summary judgment motion (mot. (mot. seq. one) one) is granted granted and · Plaintiff Plaintiff,isis hereby hereby granted granted a judgment judgment against against Tress Tress on its first cause cause of of action action for breach breach of of the parties' August parties' August 2013 settlement agreement in the amount settlement agreement amount of of $130,814.00, plus $15,000.00. $130,814.00, plus $15,000.00' in attorneys' attorneys' fees for a judgment judgment of $145,814.00; and of$145,814.00; and it is further, further, ORDERED that Tress' ORDERED that Tress' summary judgment cross-motion summary judgment cross-motion (mot. (mot. seq. two) two) is denied. denied.

This This constitutes constitutes the decision, decision, order order and judgment judgment of of the court. court.

seph seph J.S.C. I.S.C. Hon.

Han. tngnd 'ngRd Joseph Joseph Supreme Court Supreme Court Justice Justice