Opinion
8926 Index 153553/16
04-04-2019
STEPHEN LLC, Plaintiff–Respondent, v. Anthony M. ZAZULA, Defendant–Appellant.
Hinckley & Heisenberg LLP, New York (Christoph C. Heisenberg of counsel), for appellant. Douglas L. Fromme, P.C., New York (Douglas L. Fromme of counsel), for respondent.
Hinckley & Heisenberg LLP, New York (Christoph C. Heisenberg of counsel), for appellant.
Douglas L. Fromme, P.C., New York (Douglas L. Fromme of counsel), for respondent.
Friedman, J.P., Gische, Kapnick, Webber, Gesmer, JJ.
Judgment, Supreme Court, New York County (Paul A. Goetz, J.), entered May 17, 2018, against defendant in favor of plaintiff, unanimously affirmed, without costs.
Defendant's guaranty of payment of the tenant's rent to plaintiff under the 2013 lease provided that the guaranty would remain in effect "even if the lease is subsequently changed, amended, modified, renewed or if the [tenant] hold[s] over after expiration or termination of the term." When the tenant remained in the apartment following the expiration of the original lease term and continued to pay rent, which plaintiff accepted, a month-to-month tenancy was created on the same terms, and subject to the same covenants, as contained in the 2013 lease (see City of New York v. Pennsylvania R.R. Co., 37 N.Y.2d 298, 300, 372 N.Y.S.2d 56, 333 N.E.2d 361 [1975] ; Levy v. Carol Mgt. Corp., 260 A.D.2d 27, 33, 698 N.Y.S.2d 226 [1st Dept. 1999] ). The broad language of the guaranty provided that the guaranty would remain in effect during this subsequent holdover period as well as when the lease was later renewed.
The motion court providently exercised its discretion in accepting plaintiff's opposition papers, which were filed after the date originally designated in the court's scheduling order, as defendant did not demonstrate any prejudice (see Sanchez v. Steele, 149 A.D.3d 458, 52 N.Y.S.3d 88 [1st Dept. 2017] ; Narvaez v. Wadsworth, 165 A.D.3d 407, 408 [1st Dept. 2018] ; but see Adotey v. British Airways, PLC, 145 A.D.3d 748, 750, 44 N.Y.S.3d 82 [2d Dept 2016] ). Plaintiff requested an adjournment of the return date pursuant to the Uniform Rules for Trial Courts ( 22 NYCRR) § 202.8(e)(2), which was granted, and defendant was afforded an opportunity to submit reply papers if he chose to do so (see Sanchez, 149 A.D.3d at 458, 52 N.Y.S.3d 88 ; Narvaez, 165 A.D.3d at 408, 84 N.Y.S.3d 479 ).
The court properly granted summary judgment to plaintiff upon its request, contained in its opposition to defendant's motion, for a search of the record (see CPLR 3212[b] ; Maggio v. 24 W. 57 APF, LLC, 134 A.D.3d 621, 628, 24 N.Y.S.3d 1 [1st Dept. 2015] ).