549 LLC v. Luna ( 2023 )

549 LLC v Luna (2023 NY Slip Op 04708)

549 LLC v Luna

2023 NY Slip Op 04708

Decided on September 26, 2023

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 and Entered: September 26, 2023
Before: Renwick, P.J., Moulton, Kennedy, Scarpulla, Higgitt, JJ.

Index No. 651683/22 Appeal No. 613 Case No. 2023-01786

[*1]549 LLC, Plaintiff-Appellant,

v

Ruben Luna, Defendant-Respondent.

Borg & Bryks LLP, New York (Johnathan M. Borg of counsel), for appellant.

Keane & Partners LLC, New York (Thomas F. Keane of counsel), for respondent.

Order, Supreme Court, New York County (Gerald Lebovitz, J.), entered on or about September 8, 2022, which denied plaintiff's motion for summary judgment in lieu of complaint and converted the matter to a plenary action, unanimously affirmed, with costs.

In opposition to plaintiff landlord's prima facie showing of entitlement to recover rent arrears and additional charges under a guaranty, defendant guarantor raised material issues of fact as to the amount owed to plaintiff where the guaranty only obligates defendant to pay for "all amounts due under the Lease." Defendant submitted evidence supporting its defense that plaintiff breached the lease and prevented the tenant from using the leased premises by failing to obtain the appropriate certificate of occupancy and remedy ongoing violations issued by the Department of Buildings. Inasmuch as the lease provides for rent abatement in the event violations caused by plaintiff affect the tenant's ability to use the leased premises, the amount allegedly owed by the tenant under the lease remains in dispute, precluding summary judgment pursuant to CPLR 3213 (see Jones v Madison Plaza Commercial Owners LLC, 173 AD3d 599, 600 [1st Dept 2019]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: September 26, 2023