TH HOLDCO LLC v. RUBIN (2025)

Judgment, Supreme Court, New York County (Melissa Crane, J.), entered November 14, 2024, awarding judgment in favor of plaintiff and against defendant in the total amount of $58,549,183.67, and bringing up for review an order, same court and Justice, entered October 6, 2023, granting plaintiff's motion for summary judgment in lieu of complaint, unanimously affirmed, with costs.

Plaintiff satisfied its prima facie burden on its CPLR 3213 motion for summary judgment in lieu of complaint by submitting the guaranty executed by defendant, the note and other loan documents, and evidence establishing the borrower's default and defendant's failure to perform under the guaranty (see BBM3, LLC v. Vosotas, 216 A.D.3d 403, 403–404, 188 N.Y.S.3d 39 [1st Dept. 2023];  see also Simon v. Industry City Distillery, Inc., 159 A.D.3d 505, 505, 72 N.Y.S.3d 76 [1st Dept. 2018]).  An affidavit submitted by plaintiff's Chief Investment Officer was sufficient to determine the amount owed by defendant under the guaranty (see 27 West 72nd Street Note Buyer LLC v. Terzi, 194 A.D.3d 630, 631, 150 N.Y.S.3d 34 [1st Dept. 2021], lv denied 37 N.Y.3d 913, 2021 WL 4782862 [2021]).  These documents are sufficient to establish liability on a motion for summary judgment in lieu of complaint (see Cooperatieve Centrale Raiffeisen–Boerenleenbank, B.A., “Rabobank Intl.,” N.Y. Branch v. Navarro, 25 N.Y.3d 485, 492, 15 N.Y.S.3d 277, 36 N.E.3d 80 [2015]).

In opposition, defendant failed to raise a triable issue of fact, as he does not dispute the existence of the guaranty, the underlying debt, or his failure to perform under the guaranty (see DB 232 Seigel Mezz LLC v. Moskovits, 223 A.D.3d 610, 611, 204 N.Y.S.3d 469 [1st Dept. 2024]).  Defendant's other arguments are contravened by the unambiguous terms of the relevant loan documents (see Nordea Bank Finland PLC v. Holten, 84 A.D.3d 589, 590, 923 N.Y.S.2d 464 [1st Dept. 2011]).  Moreover, his liability under the guaranty is not reduced or extinguished by the bankruptcy proceeding initiated by the borrower (see Culver v. Parsons, 7 A.D.3d 931, 932–933, 777 N.Y.S.2d 536 [3d Dept. 2004]).