Opinion
Index 655022/2021
01-06-2022
BRIXMOR SPE 6 LLC, Plaintiff, v. H&N HOLDING GROUP, LLC, HANY MOSTAFA and NISREEN YOUINS Defendants. Motion Seq. No. 001
HON. NANCY M. BANNON, JUDGE
UNPUBLISHED OPINION
MOTION DATE 12/17/2021
PRESENT: HON. NANCY BANNON, JUSTICE
DECISION + ORDER ON MOTION
HON. NANCY M. BANNON, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 were read on this motion to/for JUDGMENT - DEFAULT .
In this action to recover unpaid rent, additional rent and attorney's fees due under a commercial lease, the plaintiff landlord moves pursuant to CPLR 3215 for leave to enter a default judgment against the defendants, a corporate lessee and two personal guarantors, in the sum of $91,320.57, plus additional sums accruing after the filing of the complaint. No opposition is submitted. The motion is granted in part.
"On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing (see CPLR 3215[f]; Allstate Ins. Co. v Austin, 48 A.D.3d 720 [2nd Dept. 2008])." Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 A.D.3d 649 (2nd Dept. 2011). The proof submitted must establish a prima facie case. See Silberstein v Presbyterian Hosp., 95 A.D.2d 773 (2nd Dept. 1983).
The plaintiff submits, inter alia, the summons and complaint, an attorney's affirmation, the subject lease dated January 30, 2018, the first amendment of the lease dated May 9, 2019, a rent ledger, and the affidavit of David Mickelberg, Director of Collections for Brixmor Property Group, managing agent for the plaintiff's property in Carle Place, New York. In his affidavit, Mickelberg states that the defendants defaulted in their obligations under the lease by failing to pay rent and additional rent when due, the first of each month, as shown in the ledger. The ledger demonstrates that, apart from one missed tax payment is April 2019, the defaults started on October 1, 2019 and continued through August 21, 2021, for a total outstanding balance of $91,320.57, including late fees, as of August 1, 2021. The instant action was commenced on August 17, 2021.
The proof submitted establishes a prima facie claim for breach of contract by showing (1) the existence of a contract, (2) the plaintiff's performance under that contract; (3) the tenant's breach of that contract and (4) resulting damages. See Second Source Funding, LLC v Yellowstone Capital, LLC, 144 A.D.3d 445 (1st Dept. 2016); Harris v Seward Park Housing Corp., 79 A.D.3d 425 (1st Dept. 2010); Flomenbaum v New York Univ., 71 A.D.3d 80 (1st Dept. 2009). It is well settled that a lease is a contract which is subject to the same rules of construction as any other agreement. See George Backer Mgt. Corp. v Acme Quilting Co., Inc., 46 N.Y.2d 211 (1978); New York Overnight Partners, L.P. v Gordon, 217 A.D.2d 20 (1st Dept. 1995), aff'd 88 N.Y.2d 716 (1996). Having failed to answer, the defendants are "deemed to have admitted all factual allegations in the complaint and all reasonable inferences that flow from them." Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 70-71 (2003).
The plaintiff has also established its entitlement to relief under the second cause of action alleging breach of a guaranty. "[W]here a guaranty is clear and unambiguous on its face and, by its language, absolute and unconditional, the signer is conclusively bound by its terms absent a showing of fraud, duress or other wrongful act in its inducement." Citibank, N.A. v Uri Schwartz & Sons Diamonds Ltd., 97 A.D.3d 444, 446-47 (1st Dept. 2012) (quoting National Westminster Bank USA v Sardi's Inc., 174 A.D.2d 470, 471 [1st Dept. 1991]). The terms of the subject guaranty agreement are clear, unambiguous, absolute, and unconditional and, having defaulted in this action, the defendants have not shown, or even alleged, any fraud, duress or any other wrongful conduct by the plaintiffs in regard to the agreement. Again, having failed to answer, the defendants are "deemed to have admitted all factual allegations in the complaint and all reasonable inferences that flow from them." Woodson v Mendon Leasing Corp., supra at 70-71.
To the extent the plaintiff seeks additional damages for arrears and fees accrued after the filing of the complaint, that portion of the motion is denied. CPLR 3215(b) expressly provides that a default "judgment shall not exceed in amount or differ in type from that demanded in the complaint or stated in the notice served." CPLR 3215(b); see Mt. Hawley Ins. Co. v Am. States Ins. Co., 139 A.D.3d 497 (1st Dept. 2016); P & K Marble, Inc. v Pearce, 168 A.D.2d 439 (2nd Dept. 1990); Gluck v W. D. Allen Mfg. Co., 53 A.D.2d 584 (1st Dept. 1976); Lape v Lape, 23 A.D.2d 539 (1st Dept. 1965). The plaintiff provides no basis to depart from well-settled law that a default judgment may not exceed the amount demanded in the complaint or summons with notice.
Ordinarily, attorney's fees are merely incidents of litigation and are not recoverable absent a specific contractual provision or statutory authority. See Flemming v Barnwell Nursing Home and Health Facilities, Inc., 15 N.Y.3d 375 (2010); Coopers & Lybrand v Levitt, 52 A.D.2d 493 (1st Dept. 1976). Here, the lease and guaranty agreements each contains an attorney's fees provision entitling the plaintiff to recover attorney's fees. However, the plaintiff has submitted no proof in support of the amount of fees incurred in support of its application. It may do so by submitting supplemental papers within 30 days of the date of this order.
Generally, interest is computed "from the earliest ascertainable date the cause of action existed". CPLR 5001(b). In a breach of contract action, interest "accrues from the time of an actionable breach." Kellman v Mosley, 60 A.D.3d at 457 (1st Dept. 2009); see generally Brushton-Moira Cent. Sch. Dist. v Fred H. Thomas Assocs., P.C., 91 N.Y.2d 256 (1998); Love v State of New York, 78 N.Y.2d 540 (1991). Thus, the plaintiff is entitled to statutory interest from October 1, 2019.
Accordingly, and upon the foregoing papers, it is
ORDERED that the plaintiff's motion pursuant to CPLR 3215 for leave to enter a default judgment is granted in part, without opposition; and is otherwise denied without prejudice, and it is further
ORDERED that the Clerk shall enter judgment in favor of the plaintiff and against the defendants, jointly and severally, in the sum of $91,320.57, plus costs and statutory interest from October 1, 2019, and it is further
ORDERED that the plaintiffs application for contractual attorney's fees is granted and it may submit supplemental papers in support within 30 days of this order, with notice to the Part 42 Clerk of any such filing, if so advised.
This constitutes the Decision and Order of the court.