Opinion
6434 Index 155605/12
05-03-2018
MOON 170 MERCER, Plaintiff–Respondent, v. Zachary VELLA, Defendant–Appellant.
Steven Landy & Associates PLLC, New York (David A. Wolf of counsel), for appellant. Cordova & Schartzman, LLP, Garden City (Jonathan B. Schartzman of counsel), for respondent.
Steven Landy & Associates PLLC, New York (David A. Wolf of counsel), for appellant.
Cordova & Schartzman, LLP, Garden City (Jonathan B. Schartzman of counsel), for respondent.
Richter, J.P., Gesmer, Singh, Moulton, JJ.
Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered February 7, 2017, which denied defendant's motion to vacate a judgment, entered January 23, 2017, against him, in the amount of $1,178,518.62, unanimously affirmed, with costs. The order of this Court, entered November 21, 2017, which stayed enforcement of the aforementioned Supreme Court order pending a determination of this appeal, is vacated.
In this action to enforce a personal guaranty of rent payments pursuant to a commercial lease, plaintiff was previously granted summary judgment on the issue of defendant's liability, and the matter was remanded for discovery and a trial on damages ( Moon 170 Mercer, Inc. v. Vella, 122 A.D.3d 544, 998 N.Y.S.2d 19 [1st Dept. 2014] ). After discovery, plaintiff moved for summary judgment on the amount of damages, and defendant moved for summary judgment limiting his damages to unpaid rent that accrued while the tenant, Mephisto Management LLC (Mephisto), occupied the premises (see Moon 170 Mercer, Inc. v. Vella, 146 A.D.3d 537, 537, 45 N.Y.S.3d 415 [1st Dept. 2017], lv denied 29 N.Y.3d 919, 2017 WL 4051765 [2017] ). Defendant also cross-moved for sanctions, arguing that plaintiff withheld that after evicting Mephisto, it had re-leased the premises to two companies, and withheld the related leases in discovery ( id. at 538, 45 N.Y.S.3d 415 ). The Supreme Court denied the motions and cross motion ( id. at 537, 45 N.Y.S.3d 415 ). On appeal, in our decision dated January 12, 2017, we modified the Supreme Court's order to grant plaintiff summary judgment on its damages award, and directed entry of judgment in plaintiff's favor in the amount of approximately $1.1 million, with interest ( id. at 537, 45 N.Y.S.3d 415 ).
In rejecting defendant's arguments seeking sanctions, which were based on plaintiff's withholding that it had leased the premises to two companies, namely Indiefork Hospitality LLC (Indiefork) and Sneakerboy, we noted that Michael Shah, plaintiff's principal, had explained that "plaintiff's efforts to lease the premises to those companies had failed. There is no evidence that plaintiff hid any profits from those leases or otherwise failed to credit any amounts due towards the damages it seeks from defendant" ( id. at 538, 45 N.Y.S.3d 415 ).
Plaintiff explained in his prior motion papers to this Court, which were resubmitted with its opposition papers to the instant motion to vacate the judgment, that plaintiff at one point had sought to open a restaurant and bar in the space, and thus applied for a liquor license, which requires proof that the applicant is entitled to occupy the location covered by the prospective license. Plaintiff then submitted a lease with Indiefork to the State Liquor Authority; however, after realizing the restaurant was not feasible, the deal fell through, and Indiefork never occupied the premises. This Court, citing plaintiff's explanation that efforts to re-lease the premises had fallen through, thus rejected defendant's claim that plaintiff had re-let the premises and failed to credit rental income resulting from any tenancy by Indiefork under the Indiefork lease.
The motion court correctly denied the motion to vacate the judgment based on newly-discovered evidence because it is based on that very same Indiefork lease that was the subject of the prior summary judgment and sanctions motions, and thus, does not constitute newly-discovered evidence ( Prote Contr. Co. v. Board of Educ. of City of N.Y., 230 A.D.2d 32, 39, 657 N.Y.S.2d 158 [1st Dept. 1997] ).
Moreover, we necessarily resolved the merits of Vella's arguments in the prior appeal (146 A.D.3d 537, 45 N.Y.S.3d 415 ), so his arguments are barred by the doctrine of law of the case ( Carmona v. Mathisson, 92 A.D.3d 492, 492–493, 938 N.Y.S.2d 300 [1st Dept. 2012] ; Grossman v. Meller, 213 A.D.2d 221, 224, 623 N.Y.S.2d 857 [1st Dept. 1995] ; see also Grullon v. City of New York, 297 A.D.2d 261, 265–266, 747 N.Y.S.2d 426 [1st Dept. 2002] ).
To the extent that defendant argues that terms and conditions since discovered in the paper lease warrant vacatur of the judgment and denial of Moon's summary judgment motion for a damages award, the terms he cites would not have warranted denial of summary judgment, were not material to the court's decision, and thus do not constitute newly-discovered evidence ( Prote Contr. Co., 230 A.D.2d 32, 39, 657 N.Y.S.2d 158 ).
As the motion was properly denied and judgment has been entered, to the extent this Court, by order dated November 21, 2017, stayed enforcement of the Supreme Court's order denying the motion to vacate the judgment pending a determination of the instant appeal, on the condition that defendant maintain a bond or undertaking in the amount of the judgment plus continuing interest, that stay is now vacated.