JER REALTY LLC v. PICK AND PACK HUB LLC (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from (1) an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated April 19, 2023, and (2) a judgment of the same court entered May 25, 2023.  The order dated April 19, 2023, granted the plaintiff's motion for leave to reargue its prior motion for summary judgment on the complaint, which had been denied in an order of the same court dated May 27, 2022, and, upon reargument, in effect, vacated the order dated May 27, 2022, and thereupon, granted the plaintiff's prior motion.  The judgment, upon the order dated April 19, 2023, is in favor of the plaintiff and against the defendant Pick and Pack Hub, LLC, in the total sum of $292,635.33 and the defendant Kidz Concepts, LLC, in the total sum of $107,505.08.

ORDERED that the appeal from the order dated April 19, 2023, is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeal from the order dated April 19, 2023, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647;  Brooker Engg., PLLC v. SK Trust, 219 A.D.3d 1479, 1480, 196 N.Y.S.3d 512).  The issues raised on the appeal from that order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

The plaintiff commenced this action against the defendants, Pick and Pack Hub, LLC (hereinafter Pick and Pack), and Kidz Concepts, LLC (hereinafter Kidz Concepts), to recover damages for breach of contract and to recover on a guaranty executed by Kidz Concepts, alleging that Pick and Pack defaulted on a lease between it and the plaintiff by failing to pay rent through the end of the lease term.  The plaintiff moved for summary judgment on the complaint.  In an order dated May 27, 2022 (hereinafter the May 2022 order), the Supreme Court denied the plaintiff's motion.

Subsequently, the plaintiff moved for leave to reargue its motion for summary judgment on the complaint.  In an order dated April 19, 2023 (hereinafter the 2023 order), the Supreme Court granted leave to reargue and, upon reargument, in effect, vacated the May 2022 order, and thereupon, granted the plaintiff's prior motion for summary judgment on the complaint.  The court entered a judgment in favor of the plaintiff and against Pick and Pack in the total sum of $292,635.33 and against Kidz Concepts in the total sum of $107,505.08.  The defendants appeal.

As an initial matter, contrary to the defendants’ contention, the Supreme Court providently exercised its discretion in granting the plaintiff leave to reargue its motion for summary judgment on the complaint (see Christopulos v. Christopulos, 209 A.D.3d 968, 969, 175 N.Y.S.3d 731;  Fuessel v. Chin, 179 A.D.3d 899, 900–901, 116 N.Y.S.3d 395).

The Supreme Court also properly determined, upon reargument, that the plaintiff was entitled to summary judgment on the complaint.  The elements of a cause of action to recover damages for breach of contract are “the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach” (Fuoco Group, LLP v. Weisman & Co., 222 A.D.3d 619, 621, 201 N.Y.S.3d 453 [internal quotation marks omitted]).  Here, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by submitting, among other things, signed copies of the lease and guaranty and an affidavit of its managing member who averred that the defendants defaulted on rental payments and additional fees owed under the lease (see Domecq Realty, LLC v. Great Spot, Ltd., 224 A.D.3d 884, 885, 207 N.Y.S.3d 91;  Turnwood Assoc., LLC v. Sutton Hay Day, Inc., 192 A.D.3d 1173, 1174, 141 N.Y.S.3d 339).

In opposition, the defendants failed to raise a triable issue of fact.  Contrary to the defendants’ contention, the email communications between the plaintiff and the defendants did not constitute a modification of the lease agreement.  To establish the modification of a contract, a party must prove “each element requisite to the formulation of a contract, including mutual assent to its terms” (Beacon Term. Corp. v. Chemprene, Inc., 75 A.D.2d 350, 354, 429 N.Y.S.2d 715;  see Lawrence M. Kamhi, M.D., P.C. v. East Coast Pain Mgt., P.C., 177 A.D.3d 726, 726–727, 112 N.Y.S.3d 189).  Here, there was no indication in the emails between the parties that the plaintiff assented to a modification of the lease term (see Lawrence M. Kamhi, M.D., P.C. v. East Coast Pain Mgt., P.C., 177 A.D.3d at 726–727, 112 N.Y.S.3d 189;  Beacon Term. Corp. v. Chemprene, Inc., 75 A.D.2d at 353, 429 N.Y.S.2d 715).

Moreover, the emails between the parties were insufficient to create a triable issue of fact as to whether the plaintiff intended to waive any rent or additional fees owed by the defendants under the lease (see Tutor Perini Corp. v. State of New York, 209 A.D.3d 692, 697, 176 N.Y.S.3d 285, citing Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., L.P., 7 N.Y.3d 96, 104, 817 N.Y.S.2d 606, 850 N.E.2d 653).

The plaintiff also established its contractual entitlement to attorneys’ fees by submitting a copy of the lease, which included a provision for attorneys’ fees in the event of a tenant default (see CSI Group, LLP v. Harper, 153 A.D.3d 1314, 1321, 61 N.Y.S.3d 592;  8109 Pizzeria of N.Y., Inc. v. Polo Pizza One Corp., 67 A.D.3d 627, 629, 888 N.Y.S.2d 580), and the defendants failed to raise a triable issue of fact in opposition (see Tutor Perini Corp. v. State of New York, 209 A.D.3d at 697, 176 N.Y.S.3d 285).

The defendants’ remaining contentions are improperly raised for the first time in reply.

DUFFY, J.P., CONNOLLY, WOOTEN and VENTURA, JJ., concur.