Opinion
Index No. 650670/2022 Motion Seq. No. 001
03-25-2024
64 WEST 10TH STREET, LLC, Plaintiff, v. L-RAY, LLC, CHRISTOPHER CHESNUTT, JOHN DOE, JANE DOE, and XYZ CORP., Defendants.
Unpublished Opinion
Motion Date 05/12/2023
PRESENT: HON. LOUIS L. NOCK Justice
DECISION + ORDER ON MOTION
HON. LOUIS L. NOCK JUSTICE
The following e-filed documents, listed by NYSCEF document numbers (Motion 001) 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 45, and 46 were read on this motion for SUMMARY JUDGMENT.
Upon the foregoing documents, so much of the motion as seeks summary judgment on the first three causes of action against defendant L-Ray, LLC ("tenant") is granted. At oral argument, counsel for defendants conceded that summary judgment against tenant was appropriate (transcript of proceedings, NYSCEF Doc. No. 41 at 3-4).
So much of the motion as seeks summary judgment against defendant Christopher Chesnutt ("guarantor") is denied, and the cross-motion seeking dismissal of the complaint against guarantor is granted, for the reasons stated in the opposition papers (NYSCEF Doc. Nos. 36-37) and the exhibits attached thereto, in which the court concurs, as summarized herein.
Guarantor signed a good guy guarantee of the original lease between plaintiff and tenant, which provided that he would guarantee "the payment and performance" of all payments, covenants, obligations and agreement on the part of tenant to be paid or performed hereunder up to and until delivery of vacant possession of the demised premises" (guarantee, NYSCEF Doc. No. 17). The guarantee does not provide that it is automatically renewed upon renewal of the underlying lease, which expired on March 31, 2018 (lease, NYSCEF Doc. No. 15 at 1). A good guy guarantee, even one that lasts until the vacate date, does not survive the expiration of the original lease unless specifically renewed (Paganini v 40 W. 127th St., LLC, 204 A.D.3d 473, 474 [1st Dept 2022]; PRG Assoc. Ltd. Partnership v Planet Organic Holding Corp., 188 A.D.3d 740, 742 [2d Dept 2020] ["the guarantor cannot be held responsible for the failure of the principal to perform an obligation other than the obligation originally guaranteed"]). The Net-Lease Extension Agreement, dated April 11, 2018, though executed by guarantor, makes no provision for or reference to any guaranty of the extended lease by guarantor. Plaintiff argues that such an obligation should be read into the extended lease given that guarantor executed it in his capacity as tenant's principal, however, it is axiomatic that "courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing" (Vermont Teddy Bear Co., Inc. v 538 Madison Realty Co., 1 N.Y.3d 470, 475 [2004])
So much of the motion as seeks summary judgment on the seventh cause of action for attorneys' fees alleged against both defendants is denied, as the lease provision relied on by plaintiff does not allow such recovery. The cross-motion seeking dismissal of this claim against guarantor is granted.
Accordingly, it is hereby
ORDERED that the motion for partial summary judgment by plaintiff is granted to the extent of the first through third causes of action against defendant L-Ray, LLC, and is otherwise denied; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment in favor of plaintiff and against defendant L-Ray, LLC on the first and second cause of action in the amount of $2,788,089.08, with interest thereon at the statutory rate from October 21, 2021 through entry of judgment, as calculated by the Clerk, and continuing to accrue thereon through the date of satisfaction of judgment, together with costs and disbursements as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further
"Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date" (CPLR 5001[b]; Kachkovskiy v Khlebopros, 164 A.D.3d 568, 572 [2d Dept 2018]).
ORDERED that the motion of plaintiff for summary judgment on the third cause of action for ejectment is granted; and it is further
ADJUDGED that plaintiff is entitled to possession of 64 West 10th Street, New York, New York as against defendant L-Ray, LLC, and the Sheriff of the City of New York, County of New York, upon receipt of a certified copy of this Order and Judgment and payment of proper fees, is directed to place plaintiff in possession accordingly; and it is further
ADJUDGED that immediately upon entry of this Order and Judgment, plaintiff may exercise all acts of ownership and possession of 64 West 10th Street, New York, New York, including entry thereto, as against defendant L-Ray, LLC; and it is further
ORDERED that the cross-motion for summary judgment dismissing the action against defendant Christopher Chesnutt is granted; and it is further
ADJUDGED and DECLARED that defendant Christopher Chesnutt is not able to plaintiff for Rent and/or Holdover Damages for the continued use of the Premises pendente lite and until the date plaintiff obtains legal vacant possession of the Premises; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment in favor of defendant Christopher Chesnutt dismissing the complaint against him.
This constitutes the decision and order of the court.