DAPER REALTY INC v. PIZZIMENTI (2025)

Judgment, Supreme Court, New York County (Nancy M. Bannon, J.), entered December 12, 2023, in plaintiff's favor against defendant guarantor, and bringing up for review an order, same court and Justice, entered on or about October 23, 2023, to the extent it denied defendant guarantor's motion for leave to amend his answer and, upon amendment, for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Judgment, same court and Justice, entered April 12, 2024, in plaintiff's favor against defendant tenant, and bringing up for review an order, same court and Justice, entered on or about February 28, 2024, which granted plaintiff's motion to confirm the Special Referee's report, unanimously affirmed, with costs.

The motion court providently denied defendant guarantor's motion for leave to amend his answer to include a defense under Business Corporation Law § 1312(a) based on a lack of capacity where, as here, the parties’ guaranty stated that the guarantor waived all defenses except payment (see e.g. Red Tulip, LLC v. Neiva, 44 A.D.3d 204, 209, 842 N.Y.S.2d 1 [1st Dept. 2007], lv dismissed 10 N.Y.3d 741, 853 N.Y.S.2d 283, 882 N.E.2d 896 [2008]).  The waiver includes any claim of fraud arising from the landlord's misleading statement in the guarantor complaint that it was authorized to do business in New York (see Citibank v. Plapinger, 66 N.Y.2d 90, 93, 495 N.Y.S.2d 309, 485 N.E.2d 974 [1985]).  Because the waiver of defenses other than payment is dispositive, the guarantor's motion for summary judgment based on the proposed amendment was properly denied.

As to plaintiff's related action against defendant tenant, as a preliminary matter, the court was entitled to consider the motion to confirm on its own initiative, irrespective of the timeliness of plaintiff's motion (see CPLR 4403;  see also Uniform Rules for Trial Cts [22 NYCRR] § 202.44[b]).

Contrary to tenant's contention, the copy of the lease presented at the hearing before the Special Referee satisfied the best evidence rule and CPLR 4539(b), as the Referee properly determined “that the proffered evidence is authentic and correctly reflects the contents of the original before ruling on its admissibility” (Schozer v. William Penn Life Ins. Co. of N.Y., 84 N.Y.2d 639, 645, 620 N.Y.S.2d 797, 644 N.E.2d 1353 [1994] [internal quotation marks omitted]).  The landlord's witness established that he was sufficiently familiar with the lease in the course of his employment to authenticate it as a business record, and he competently testified to his company's record keeping procedures (see e.g. DeLeon v. Port Auth. of N.Y. & N.J., 306 A.D.2d 146, 146, 761 N.Y.S.2d 54 [1st Dept. 2003];  see also Choudhry v. Starbucks Corp., 213 A.D.3d 521, 522, 184 N.Y.S.3d 327 [1st Dept. 2023]).  Defendant tenant failed to identify any substantive dispute as to the contents and accuracy of the lease copy submitted to preclude its admission based on a violation of the best evidence rule (see Dhillon v. Bryant Assoc., 26 A.D.3d 155, 157, 809 N.Y.S.2d 25 [1st Dept. 2006]).  The rent ledger was properly admitted into evidence as a business record through the testimony of the same employee of the managing agent, in which he stated that his company's practice in the regular course of its business was to enter amounts due under the lease contemporaneously with their occurrence (see CPLR 4518[a];  Epic W14 LLC v. Malter, 212 A.D.3d 575, 575–576, 184 N.Y.S.3d 1 [1st Dept. 2023], lv denied, 40 N.Y.3d 904, 2023 WL 6153328 [2023]).  The tenant did not dispute any of the specific charges set forth in the ledger.

We have considered defendants’ respective remaining contentions and find them unavailing.