8430985 Canada Inc. v. United Realty Advisors LP , 148 A.D.3d 428 ( 2017 )

8430985 Can. Inc. v United Realty Advisors LP (2017 NY Slip Op 01639)

8430985 Can. Inc. v United Realty Advisors LP

2017 NY Slip Op 01639

Decided on March 2, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 2, 2017
Andrias, J.P., Feinman, Kapnick, Gesmer, JJ.

3317 653564/14

[*1]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.

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 AD3d 742, 743 [2d Dept 2008]; AirTran N.Y., LLC v Midwest Air Group, Inc., 46 AD3d 208, 214 [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 AD2d 456, 457 [1st Dept 1993], lv denied 82 NY2d 658 [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 NY 87, 92 [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. [*2]Co., 285 AD2d 42, 45 [1st Dept 2001]).

We have considered Frydman's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 2, 2017

CLERK