Opinion
05-21-2024
FIFTH PARTNERS LLC, Plaintiff-Respondent, v. Joseph W. FOLEY, et al., Defendants-Appellants, Punch House Flatiron LLC, Defendant.
Joseph W. Foley and Nada Vasilijevic, appellants pro se. Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for respondent.
Joseph W. Foley and Nada Vasilijevic, appellants pro se.
Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for respondent.
Kern, J.P., Oing, Kapnick, Higgitt, Michael, JJ.
Judgment, Supreme Court, New York County (Gerald Lebovits, J.), entered May 11, 2023, awarding plaintiff a total sum of $252,298.16 against defendants, and bringing up for review an order, same court and Justice, entered April 27, 2023, which granted plaintiff’s motion for summary judgment on its claims for breach of the lease and guaranty and dismissed defendants’ counterclaim for fraudulent inducement, unanimously affirmed, without costs. Judgment, same court and Justice, entered October 25, 2023, awarding plaintiff a total sum of $20,590.71 in attorneys’ fees against defendants, and bringing up for review an order, same court and Justice, entered October 2, 2023, which to the extent appealed, denied defendant pro se Joseph W. Foley’s motion for reconsideration and granted plaintiff’s motion for attorneys’ fees, unanimously affirmed, without costs. Appeals from the April 27, 2023 and October 2, 2023 orders, unanimously dismissed, without costs, as subsumed in the appeals from the judgments.
[1] The motion court properly granted summary judgment to plaintiff under the lease and guaranty and dismissed defendants’ counterclaim for fraudulent inducement as barred under paragraphs 4 and 20 of the lease. The fraudulent inducement counterclaim arising from plaintiff’s representations as to the completion of the storefront work, the removal of scaffolding and the condition of the premises’ HVAC system were all precluded by paragraph 20’s specific disclaimers. Paragraph 20 states both that plaintiff had not "made any representations or promises with respect to the physical condition of the building …" and that defendant had "inspected the Building and the Demised Premises and [was] thoroughly acquainted with their condition and agree[d] to take the same ‘as is’ …". These disclaimers "destroy[ ] the allegations … that the agreement was executed in reliance upon these contrary oral representations" (Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 320-321, 184 N.Y.S.2d 599, 157 N.E.2d 597 [1959]).
[2] Additionally, paragraph 4 of the lease precludes any abatement arising from construction inconveniences, rendering summary judgment in plaintiff’s favor and the resulting money judgment proper here. Even aside from those provisions, defendant failed to "allege facts sufficient to show that [plaintiff] never intended to honor" its construction timeline, further warranting dismissal of the fraudulent inducement counterclaim (Rising Sun Constr. L.L.C. v. CabGram Dev. LLC, 202 A.D.3d 557, 559, 164 N.Y.S.3d 75 [1st Dept. 2022]).
[3, 4] The court providently declined to consider the pro se defendant’s motion for renewal based on the procedural defects, including the lack of notarization on his affidavit and failure to file a proper notice of motion (see e.g. Pollack v. Ovadia, 173 A.D.3d 464, 99 N.Y.S.3d 882 [1st Dept. 2019]). Although the amendments to CPLR 2106 that went into effect after the entry of the judgments here now permit a statement to be made "under the penalties of perjury" without notarization, defendant’s statement submitted in support of his reconsideration motion was not sworn in any manner, and in any event, defendant failed to establish that the new submissions would have changed the outcome of the original motion (CPLR 2221[e]; see also William P. Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22, 27, 588 N.Y.S.2d 8 [1st Dept. 1992]).
We have considered defendant’s remaining contentions and find them unavailing.