PERLBINDER HOLDINGS LLC v. Hung-Wei Gianella, Defendant. (2023)

Appeal from order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered on or about April 8, 2022, which, in effect, granted plaintiff's motion for summary judgment in lieu of complaint, deemed appeal from order and judgment (one paper), same court and Justice, entered on or about April 8, 2022, in plaintiff's favor in the principal amount of $389,291.83, and as so considered, the order and judgment unanimously affirmed, with costs.  Appeal from order, same court (Kathy J. King, J.), entered June 16, 2021, which denied defendants Himansu Patel, Harshad S. Patel, and Akashi H. Patel's motion to vacate a ruling, same court (Alan C. Marin, J.), entered on or about February 27, 2020, purportedly granting plaintiff's motion for summary judgment in lieu of complaint, unanimously dismissed, without costs, as academic.

Plaintiff demonstrated prima facie entitlement to summary judgment in lieu of complaint on its claim to recover on a guaranty that defendants signed, by submitting evidence of their failure to pay, including the guaranty, the underlying lease, the assignment to the commercial tenant, and the lease ledger stating the commercial tenant's rent arrears (see iPayment, Inc. v. Silverman, 192 A.D.3d 586, 587, 146 N.Y.S.3d 51 [1st Dept. 2021], lv dismissed 37 N.Y.3d 1020, 154 N.Y.S.3d 27, 175 N.E.3d 909 [2021]).  Plaintiff's motion under CPLR 3213 was commenced on the guaranty that defendants undisputedly executed on December 16, 2015, and any references to a guaranty executed on January 20, 2016 appear to be typographical errors that were corrected by the time the motion court issued its order and judgment.  Moreover, defendants guaranteed that their obligations under the lease would not be impaired by any subsequent amendment, extension, modification, or assignment (see 2402 E. 69th St., LLC v. Corbel Installations, Inc., 183 A.D.3d 859, 862, 124 N.Y.S.3d 632 [2d Dept. 2020]).

Defendants’ submissions are insufficient to rebut the presumption of proper service created by the affidavits of service (see Ocwen Loan Servicing, LLC v. Ali, 180 A.D.3d 591, 591, 119 N.Y.S.3d 474 [1st Dept. 2020], lv dismissed 36 N.Y.3d 1046, 140 N.Y.S.3d 477, 164 N.E.3d 283 [2020]).  Indeed, this Court has already rejected these same arguments by defendants in a related action involving nearly identical affidavits of service (Perlbinder Holdings LLC v. Patel, 202 A.D.3d 578, 159 N.Y.S.3d 675 [1st Dept. 2022]).