35TH STREET ASSOCIATES v. $7 & Up Clothing Store, Inc. et al., Defendants. (2023)

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered July 18, 2022, which, insofar as appealed from as limited by the briefs, granted the motion of plaintiff landlord 35th Street Associates (the landlord) insofar as it sought summary judgment on the cause of action for breach of contract as against individual defendant Isaac Eshagh Sasson and directed entry of judgment in the landlord's favor, unanimously affirmed, with costs.

In this action to recover rent due under a commercial lease, the landlord established its entitlement to summary judgment by submitting evidence that Sasson, who was an officer of defendant tenant $7 & Up Clothing Store, Inc., executed an absolute and unconditional guaranty of $7 & Up's rental obligations under a commercial lease and that $7 & Up defaulted on those obligations (see Second Source Funding, LLC v. Yellowstone Capital, LLC, 144 A.D.3d 445, 446, 40 N.Y.S.3d 410 [1st Dept. 2016];  International Plaza Assoc., L.P. v. Lacher, 104 A.D.3d 578, 579, 961 N.Y.S.2d 427 [1st Dept. 2013]).  This evidence included an affidavit from the landlord's managing agent, averring that $7 & Up failed to comply with the lease by paying the entire rent due;  the original lease;  two modifications of the original lease, both executed by Sasson;  guarantees executed by Sasson;  and proof that Sasson defaulted — for example, a rent ledger showing no payments between January 2020 and October 2021 (see Chip Fifth Ave. LLC v. Quality King Distrib., Inc., 158 A.D.3d 418, 70 N.Y.S.3d 196 [1st Dept. 2018], lv dismissed 32 N.Y.3d 947, 84 N.Y.S.3d 428, 109 N.E.3d 577 [2018]).  Plaintiff also submitted attorney billing records supporting the award of counsel fees.

Sasson failed to preserve his contention that he did not guarantee the rental obligations under the subsequent lease agreements, as he failed to raise it before Supreme Court (see Shinn v. Catanzaro, 1 A.D.3d 195, 197–198, 767 N.Y.S.2d 88 [1st Dept. 2003]).  In any event, the two subsequent lease agreements expressly extended the terms of the original lease and the guaranty, and Sasson signed both subsequent lease agreements (see e.g. Paganini v. 40 West 127th St., LLC, 204 A.D.3d 473, 474, 167 N.Y.S.3d 61 [1st Dept. 2022];  Lo–Ho LLC v. Batista, 62 A.D.3d 558, 559–560, 881 N.Y.S.2d 33 [1st Dept. 2009]).  Accordingly, Sasson cannot be heard to argue that he did not consent to the terms of the later agreements, including any rent increases (see 250 West 78 LLC v. Pildes of 83rd St., Inc., 129 A.D.3d 405, 406–407, 11 N.Y.S.3d 17 [1st Dept. 2015]).

Under the circumstances presented, Supreme Court correctly determined that discovery was not warranted (see Reyes v. Park, 127 A.D.3d 459, 462, 8 N.Y.S.3d 22 [1st Dept. 2015]).