Opinion
613 Index No. 651683/22 Case No. 2023–01786
09-26-2023
549 LLC, Plaintiff–Appellant, v. Ruben LUNA, Defendant–Respondent.
Borg & Bryks LLP, New York (Johnathan M. Borg of counsel), for appellant. Keane & Partners LLC, New York (Thomas F. Keane of counsel), for respondent.
Borg & Bryks LLP, New York (Johnathan M. Borg of counsel), for appellant.
Keane & Partners LLC, New York (Thomas F. Keane of counsel), for respondent.
Renwick, P.J., Moulton, Kennedy, Scarpulla, Higgitt, JJ.
Order, Supreme Court, New York County (Gerald Lebovitz, J.), entered on or about September 8, 2022, which denied plaintiff's motion for summary judgment in lieu of complaint and converted the matter to a plenary action, unanimously affirmed, with costs.
In opposition to plaintiff landlord's prima facie showing of entitlement to recover rent arrears and additional charges under a guaranty, defendant guarantor raised material issues of fact as to the amount owed to plaintiff where the guaranty only obligates defendant to pay for "all amounts due under the Lease." Defendant submitted evidence supporting its defense that plaintiff breached the lease and prevented the tenant from using the leased premises by failing to obtain the appropriate certificate of occupancy and remedy ongoing violations issued by the Department of Buildings. Inasmuch as the lease provides for rent abatement in the event violations caused by plaintiff affect the tenant's ability to use the leased premises, the amount allegedly owed by the tenant under the lease remains in dispute, precluding summary judgment pursuant to CPLR 3213 (see Jones v. Madison Plaza Commercial Owners LLC, 173 A.D.3d 599, 600, 100 N.Y.S.3d 862 [1st Dept. 2019] ). We have considered plaintiff's remaining arguments and find them unavailing.