PANASIA ESTATE INC v. GLAZER (2024)

Order, Supreme Court, New York County (Mary V. Rosado, J.) entered April 8, 2024, denying plaintiff's motion for summary judgment in lieu of complaint on its claim for amounts due under the parties' guaranty, unanimously reversed, on the law, without costs, the motion granted as to liability, and the matter remanded for further proceedings consistent with this decision.

Plaintiff established its entitlement to judgment as a matter of law, as there is no question that at least certain amounts became due under the guaranty and fell outside the statutory period of repose under Administrative Code of City of New York § 22–1005 (the guaranty law).  Thus, the court should have granted plaintiff's motion as to liability and held further proceedings on damages, including whether and the extent to which the guaranty law applies here (see e.g. 558 Seventh Ave. Corp. v. Times Sq. Photo Inc., 194 A.D.3d 561, 562, 149 N.Y.S.3d 55 [1st Dept. 2021]).

Although plaintiff asks us to determine the constitutionality of the guaranty law on appeal, these arguments were raised for the first time in its reply papers in Supreme Court and therefore will not be considered (see e.g. JPMorgan Chase Bank, N.A. v. Luxor Capital, LLC, 101 A.D.3d 575, 576, 957 N.Y.S.2d 45 [1st Dept. 2012]).  However, further proceedings on damages may also include whether the guaranty law applies as a constitutional exercise of the Contracts Clause of the United States Constitution upon the parties' development of the record (see 721 Borrower LLC v. Moha, 204 A.D.3d 510, 164 N.Y.S.3d 817 [1st Dept. 2022]).  Pursuant to CPLR 1012(b)(2), plaintiff shall also serve notice on nonparty City of New York and file proof of service with the Supreme Court to enable the City to intervene in support of the guaranty law's constitutionality (45–47–49 Eighth Ave. LLC v. Conti, 220 A.D.3d 473, 474, 199 N.Y.S.3d 20 [1st Dept. 2023]).

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

Motion to take judicial notice, granted with respect to reply memorandum of law submitted to Supreme Court, and otherwise denied.