Opinion
03-02-2017
8430985 CANADA INC., Plaintiff–Respondent, v. UNITED REALTY ADVISORS LP, et al., Defendants, Jacob Frydman, Defendant–Appellant.
Wrobel Markham Schatz Kaye & Fox LLP, New York (David C. Wrobel of counsel), for appellant. The Ryan Law Group LLP, New York (Andrew J. Ryan of counsel), for respondent.
Wrobel Markham Schatz Kaye & Fox LLP, New York (David C. Wrobel of counsel), for appellant.
The Ryan Law Group LLP, New York (Andrew J. Ryan of counsel), for respondent.
ANDRIAS, J.P., FEINMAN, KAPNICK, GESMER, JJ.
Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered February 5, 2016, to the extent it awarded plaintiff the total amount of $1,302,444.80 as against defendant Jacob Frydman, and bringing up for review an order, same court and Justice, entered August 17, 2015, which granted plaintiff's motion for summary judgment in lieu of complaint, and denied defendants United Realty Advisors LP (URA) and Frydman's cross motion for summary judgment, unanimously affirmed, with costs.
Plaintiff has standing to bring this suit, as Frydman has not sustained his burden to show that plaintiff had systematic and regular unauthorized activity in New York warranting application of Business Corporation Law § 1312(a) (see Highfill, Inc. v. Bruce & Iris, Inc., 50 A.D.3d 742, 743, 855 N.Y.S.2d 635 [2d Dept.2008] ; AirTran N.Y., LLC v. Midwest Air Group, Inc., 46 A.D.3d 208, 214, 844 N.Y.S.2d 233 [1st Dept.2007] ).
The motion court properly granted plaintiff summary judgment in lieu of complaint, based on Frydman's guaranty and an affidavit from plaintiff's director establishing that there was a default in payment (see CPLR 3213 ; see also Mariani v. Dyer, 193 A.D.2d 456, 457, 597 N.Y.S.2d 358 [1st Dept.1993], lv. denied 82 N.Y.2d 658, 604 N.Y.S.2d 557, 624 N.E.2d 695 [1993] ). Frydman's payment obligations under the promissory note are not affected by the Heter Iska, and the guaranty is one for payment, not collection (see General Phoenix Corp. v. Cabot, 300 N.Y. 87, 92, 89 N.E.2d 238 [1949] ).
Because URA withdrew its notice of appeal, and because its liability to plaintiff does not affect Frydman's liability under his guaranty, we decline to consider Frydman's arguments regarding URA's claim against plaintiff.
The motion court properly denied summary judgment on the cross claim against defendant Eli Verschleiser, as issue was not properly joined (Myung Chun v. North Am. Mtge. Co., 285 A.D.2d 42, 45, 729 N.Y.S.2d 716 [1st Dept.2001] ).
We have considered Frydman's remaining contentions and find them unavailing.