141 AVENUE ASSOCIATES LLC v. SNEAK EZ LLC (2023)

The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 were read on this motion for DEFAULT JUDGMENT.

In this action on a commercial lease and guarantee, plaintiff-landlord, 141 Avenue A Associates, LLC, moves without opposition under CPLR 3215 for default judgment against defendant-tenant, Sneak EZ LLC, and defendant-guarantor, Kyle W. Lamberty. The motion is granted in part and denied in part.

Plaintiff has established proper service on defendants; and they have not appeared. Plaintiff seeks $117,597.11 in unpaid rent, additional rent, and late fees from tenant. Plaintiff has shown its entitlement to that amount through the affidavit of one of its members, supported by documentary evidence including copies of the lease, the guarantee, and a rent ledger. Plaintiff's request for default judgment with respect to tenant is therefore granted in full.

Plaintiff seeks those same damages as against guarantor. A portion of those claimed damages, however, is barred by the provisions of New York City Administrative Code § 22-1005. Plaintiff contends that this court should decline to give effect to the protections of § 22-1005 in light of a March 2023 decision of the U.S. District Court for the Southern District of New York that held this statute to be unconstitutional. (See NYSCEF No. 22 at 5-6, citing Melendez v City of New York, 2023 WL 2746183 [SD NY 2023].) But this court is not bound by Melendez. (See People v Kan, 78 NY2d 54, 59-60 [1991] [noting that although “the interpretation of a Federal constitutional question by the lower Federal courts may serve as useful and persuasive authority” for New York courts, only the U.S. Supreme Court's rulings on federal law are binding].) Indeed, this court previously reached a different conclusion on the constitutionality of § 22-1005. (See 45-47-49 Eighth Avenue v. Conti, 2021 NY Slip Op. 50691[U], at *5 [Sup Ct, NY County July 23, 2021]).¹ The court concludes, therefore, that plaintiff may not recover from guarantor that increment of its claimed damages that is shielded by the protections of the guarantee law, totaling $28,805.68. Plaintiff is entitled to collect only the smaller sum of $88,785.43.

Plaintiff also seeks an award of its reasonable attorney fees. Plaintiff is entitled as the prevailing party to attorney fees under the lease and guarantee. Plaintiff has established the amount of its reasonable attorney fees, $2,911.68, through an affirmation of counsel and supporting fee invoices.

Accordingly, it is

ORDERED that the branch of plaintiff's motion seeking default judgment against defendant Sneak EZ LLC is granted; and it is further

ORDERED that the branch of plaintiff's motion seeking default judgment against defendant Kyle W. Lamberty is granted in part and denied in part; and it is further

ORDERED that plaintiff is awarded a judgment against defendants, jointly and severally, for (i) $88,785.43 in unpaid rent and additional rent, with interest running at the statutory rate from the reasonable intermediate date of September 1, 2021; plus (ii) $2,911.68 in attorney fees; plus (iii) costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that plaintiff is awarded a judgment against defendant Sneak EZ LLC for $28,805.68, with interest running at the statutory rate from the reasonable intermediate date of September 1, 2021; and it is further

ORDERED that plaintiff serve a copy of this order with notice of its entry on defendants by certified mail, return receipt requested, directed to defendants’ respective last-known addresses; and on the office of the County Clerk, which shall enter judgment accordingly.

FOOTNOTES

1.   The landlord's appeal from this court's ruling in Conti has been argued before the Appellate Division but has not yet been decided.

Gerald Lebovits, J.