274 LLC v. CAAM LLC CRAIG ANTELL CRAIG ANTELL ANDREW MARCUS (2026)

This action arises from an alleged default under a commercial lease for premises located at 274 Madison Avenue in Manhattan. Plaintiff, 274 Madison Avenue Company LLC, seeks to recover unpaid rent and related damages based on a lease with defendant CAAM, LLC, and personal guaranties allegedly executed by defendants Andrew Marcus and Craig Antell.

Plaintiff brought this action in July 2013. Marcus and CAAM answered the complaint in September 2013. Antell and Craig Antell, D.O., P.C. (the Antell defendants), answered in November 2013. (See NYSCEF No. 21.) In December 2013, plaintiff moved for partial summary judgment against Antell individually (mot seq 002). In August 2015, the court (Hagler, J.) granted the motion on default (mot seq 002). (See NYSCEF No. 54 [handwritten order].) Antell then moved the vacate the default on August 21, 2015 (mot seq 004). (See NYSCEF No. 57 [OSC].) The court (Hagler, J.) vacated the default order on September 21, 2015. (See NYSCEF No. 82 [handwritten order].)

From May 2017—January 2019, the parties conducted discovery. (See NYSCEF Nos. 91, 93-96 [compliance and status conference orders].) In January 2019, Antell changed attorneys. (See NYSCEF No. 97). In May 2019, plaintiff and Marcus entered into a status-conference order that provided that the note-of-issue deadline was August 12, 2019.¹ (See NYSCEF No. 98.)

On August 9, 2019, plaintiff, Marcus, and CAAM entered into a stipulation of discontinuance (with prejudice). (See NYSCEF No. 99.) The stipulation was not the product of a motion to the court but rather was simply filed onto NYSCEF. On August 13, 2019, plaintiff filed the note of issue (NOI). (See NYSCEF No. 100.)

The Antell defendants now move to vacate the 2019 stipulation of discontinuance. They further seek to vacate the note of issue and compel discovery and to amend their answer to assert four crossclaims against Marcus. Marcus cross-moves to so-order the 2019 stipulation of discontinuance. Plaintiff cross-moves for summary judgment on liability against Antell and to strike the Antell defendants' affirmative defenses.

The motion is granted in part and denied in part. Marcus's cross-motion is granted. Plaintiff's cross-motion is granted in part and denied in part.

DISCUSSION

I. Branch of Antell Defendants' Motion to Vacate / Marcus's Cross-Motion to So-Order the Stipulation of Discontinuance

A. The Antell defendants argue that the stipulation of discontinuance between plaintiff, Marcus, and CAAM is invalid because it was not signed by counsel for all parties, as required by CPLR 3217 (a) (2). They further argues that discontinuing plaintiff's claims against Marcus would shift potential liability onto him—although, they claim, Marcus is responsible for the alleged breach of the lease and guaranty. The Antell defendants also contend that vacatur is necessary to permit them to pursue crossclaims against Marcus.

Marcus argues that notwithstanding the absence of Antell's signature, the stipulation is valid and enforceable as among plaintiff, Marcus, and CAAM. Marcus further contends that Antell waived any objection by failing to challenge the stipulation for six years. Plaintiff contends that because Antell's counsel did not appear at discovery conferences, the Antell defendants conceded that they were not interested in asserting additional claims in this action. (See NYSCEF No. 142 at 8.) Marcus and plaintiff also assert that Antell has failed to demonstrate any cognizable prejudice that he would incur by leaving the stipulation in place.

CPLR 3217 (a) (2) provides that a party may discontinue an action without court order by filing a stipulation "signed by the attorneys of record for all parties." Signatures by "the attorneys for all parties is mandatory, without which the discontinuance can be sought on motion." (C.W. Brown, Inc. v HCE, Inc., 8 AD3d 520, 521 [2d Dept 2004].) Some courts, however, have held that a stipulation of discontinuance not signed by all parties may still be enforceable when the non-signing party is not prejudiced by its enforcement. (See e.g. Matter of Cohen Swados Wright Hanifin Bradford & Brett, LLP v Frank R. Bayger, P.C., 269 AD2d 739, 742 [4th Dept 2000]; Barclays Bank of New York, N.A. v M&M Elecs. Assoc. Inc., 185 AD2d 580, 582 [3d Dept 1992].)

The 2019 stipulation of discontinuance is not enforceable. It is undisputed that the Antell defendants did not sign the stipulation. In addition, the court declines to enforce the stipulation notwithstanding that conclusion, because allowing the action to proceed solely against the Antell defendants would be inherently prejudicial. Moreover, the court is disinclined to suppose that Antell's failure to appear at the most recent discovery conference in this action demonstrates that he was no longer interested in asserting crossclaims against Marcus.

B. The next question is whether the court may grant Marcus's cross-motion to so-order the 2019 stipulation. The Antell defendants argue that the court lacks the authority to do so at this point in the litigation. They say that the cross-motion is untimely because (1) plaintiff already moved for summary judgment in this action on motion sequence 002 (before Marcus and plaintiff entered into their stipulation) and (2) in a related action (index no. 653650/2013), plaintiff cross-moved to resurrect its motion for summary judgment.² (See NYSCEF No. 167 at 9.)

Under CPLR 3217 (b), a court "may not order an action discontinued except upon the stipulation of all parties appearing in the action" once "the cause has been submitted to the court or jury to determine the facts." Submission of a summary-judgment motion is not the equivalent of an action submitted for fact-finding.³ Indeed, on a motion for summary judgment, the court is tasked with determining the existence of questions of fact, not determining the facts themselves. Only before an action is submitted to the trier of fact may a court grant a discontinuance without consent of all the parties to the action. (See Emigrant Bank v Solimano, 209 AD3d 153, 159-160 [2d Dept 2022] ["[T]he submission of the case to a jury for its findings of fact, or the submission of the case to a court during a bench trial, operates as a bright line separating the discontinuance that may be sought using the pre-deliberative mechanisms of CPLR 3217(a)(2) and (b) from the mechanism of CPLR 3217(b) which attaches once the deliberative phase begins."]; Wiener v Spahn, 2015 WL 13079348, *5 [Sup Ct, Bronx County 2015] [holding "that a motion to discontinue may be considered, despite the submission of a summary judgment motion"].) The existence of pending summary-judgment motions thus does not preclude this court from so-ordering the 2019 stipulation.

The branch of the Antell defendants' motion to vacate the stipulation of discontinue is granted. Marcus's cross-motion to so-order the stipulation is also granted. Marcus may re-submit a proposed stipulation for so-ordering within 14 days.

II. Branch of the Antell Defendants' Motion to Vacate the Note of Issue and Compel Disclosure

The Antell defendants seek to vacate the August 2019 NOI and to compel compliance with its discovery demands. They contend that discovery is incomplete and point to multiple compliance conference orders from 2017 2019 with which, they say, plaintiff failed to comply. The Antell defendants further argue that the NOI's certificate of readiness inaccurately represented that discovery had been completed or waived. In addition, the Antell defendants claim that their new counsel has been unable to obtain the complete litigation file from prior counsel; they therefore seek all previously exchanged discovery.

Marcus and plaintiff oppose, arguing that the motion is untimely and without merit. They contend that the Antell defendants had more than six years, from commencement of this action in 2013 through the filing of the note of issue in 2019, to pursue discovery but failed to do so. They further argue that the Antell defendants did not move to vacate the note of issue within 20 days of its filing, as required by 22 NYCRR 202.21 (e), and has failed to demonstrate any unusual or unanticipated circumstances arising after the filing that would justify vacatur at this late stage. They also contend that issues relating to prior counsel or missing files do not satisfy that standard and that the certificate of readiness asserted only that discovery then known to be necessary was completed.

The branch of the Antell defendants' motion to vacate the note of issue is denied. The Antell defendants did not move timely to vacate the NOI within 20 days (see 22 NYCRR 202.21 [e]); they moved six years after plaintiff filed the NOI. Moreover, to the extent Antell defendants claim that discovery is outstanding, they do not explain why they waited years before moving to compel plaintiff to comply with their discovery demands. Moreover, "[t]he substitution of new counsel or the delinquencies of predecessor counsel alone is insufficient to show the presence of unusual or unanticipated circumstances subsequent to the filing of the note of issue and certificate of readiness."⁴ (Utica Mut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794 [2d Dept 2006].)

III. Branch of the Antell Defendants' Motion for Leave to Amend Their Answer

The Antell defendants seek to amend their answer to raise an affirmative defense for breach of covenant of good faith and fair dealing and four crossclaims against Marcus: common-law indemnification, contribution, forgery, and breach of the covenant of good faith and fair dealing. (See NYSCEF No. 111 [proposed answer].)

On a CPLR 3025 (b) "motion for leave to amend, plaintiff need not establish the merit of its proposed new allegations, but simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit." (MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, 500 [1st Dept 2010] [internal citation omitted].) If "the amendment is sought after a long delay, and a statement of readiness has been filed, judicial discretion in allowing the amendment should be discreet, circumspect, prudent and cautious." (Jacobson v Croman, 107 AD3d 644, 645 [1st Dept 2013] [internal quotation marks omitted].) Lateness alone is insufficient to defeat a CPLR 3025 motion, however: "It must be lateness coupled with significant prejudice to the other side." (Id.) The prejudice shown must "traceable not simply to the new matter sought to be added, but also to the fact that it is only now being added" and "[t]here must be some special right lost in the interim, some change of position or some significant trouble or expense that could have been avoided had the original pleading contained what the amended one wants to add." [Id. [quotation marks omitted].)

Marcus argues that the proposed amendments are both untimely and substantively meritless. Marcus contends that Antell was aware of potential crossclaims as early as 2013, when Marcus asserted crossclaims against Antell, yet failed to assert any crossclaims before now. Marcus further argues that Antell has failed to submit a sufficient affidavit of merit and that each proposed crossclaim is legally deficient.

The Antell defendants seek leave to amend more than twelve years after filing their answer and nearly six years after the note of issue was filed. But the delays alone are not enough. Nor will this court deny the Antell defendants an opportunity to amend for lack of an affidavit of merit. (See Johnson v Montefiore Med. Ctr., 203 AD3d 462, 464 [1st Dept 2022] [holding that an affidavit of merit is not required to support proposed amendments rather that movant must "simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit"] [internal quotation marks omitted].) Nor is this court persuaded that Marcus will experience prejudice severe enough to warrant denial of a motion to amend. (Cf. Jacobson v McNeil Consumer & Specialty Pharm., 68 AD3d 652, 654-655 [1st Dept 2009] ["Prejudice does not occur simply because a defendant is exposed to greater liability or because a defendant has to expend additional time preparing its case. Rather, prejudice occurs when the party opposing amendment has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position."] [internal citations and quotations marks omitted].)

Even if the delay was excusable, however, part of the request to amend must be denied as unmeritorious.

To start, the Antell defendants' proposed crossclaims for common-law indemnification and contribution are meritless. Those claims must be premised on negligence, whereas here plaintiff's claims arise from breach of lease and breach of guaranty. (See Chatham Towers, Inc. v Castle Restoration & Const., Inc., 151 AD3d 419, 420 [1st Dept 2017] ["Common-law indemnification may be pursued by parties who have been held vicariously liable for the party that actually caused the negligence that injured the plaintiff."]; Sendar Dev. Co., LLC v CMA Design Studio P.C., 68 AD3d 500, 504 [1st Dept 2009] ["[C]ontribution is unavailable where a plaintiff's direct claims against a codefendant seek only a contractual benefit of the bargain recovery."].)

Next, the proposed crossclaim and affirmative defense for breach of the implied covenant of good faith and fair dealing are unmeritorious. This claim and defense must arise from a contract between the parties. And Antell does not identify any contract between himself and Marcus that would give rise to such a duty.

On the forgery claim, Antell alleges that he did not execute the guaranty and that Marcus knows who signed the guaranty with Antell's signature. (NYSCEF No. 111 at 6-7 [proposed answer].) This claim sounds in aiding and abetting fraud. (See Stanfield Offshore Leveraged Assets, Ltd. v Metro. Life Ins. Co., 64 AD3d 472, 476 [1st Dept 2009] [explaining that the element of for an aiding-and-abetting-fraud claim include ""(1) the existence of an underlying fraud; (2) knowledge of this fraud on the part of the aider and abettor; and (3) substantial assistance by the aider and abettor in achievement of the fraud"] internal quotation marks omitted].)

Marcus argues that Antell has previously admitted (in a separate action; Index No. 652561/2012) that he signed the guaranty. (See NYSCEF No. 128 at ¶ 24.) Marcus further argues that if one compares the 2010 guaranty signature with other documents that contain Antell's signature, one will see that the signatures look the same. (Compare NYSCEF No. 127 [2010 guaranty] with NYSCEF No. 129 [operating reports from bankruptcy action].)

On reply, Antell provides the report of a handwriting expert who opines that the signature on the 2010 guaranty is not genuine. (See NYSCEF No. 166 at 3 [pdf pagination].) In addition, he contends that the affidavit he admitted to signing a concerned a guaranty signed in 2001, not the 2010 guaranty on which this action is based.

The court concludes that issues of fact remain about whether Antell's signature on the 2010 guaranty is a forgery. Although Antell does not identify who allegedly used his signature, he has alleged that Marcus was present or has knowledge about its procurement. The branch of the Antell defendants' motion to add a crossclaim against Marcus for forgery—really aiding and abetting fraud— is not devoid of merit. The Antell defendants may amend their answer to assert this crossclaim.

IV. The Branch of Plaintiff's Cross-Motion for Summary Judgment and to Strike the Antell Defendants' Affirmative Defenses

Plaintiff cross-moves for summary judgment on liability against Antell individually as guarantor, and to strike Antell defendants' affirmative defenses. Plaintiff previously sought this relief on motion sequence 002. On August 3, 2015, the court (Hagler, J.) granted the motion on default. (See NYSCEF No. 54 [handwritten order].) The court then vacated that order on September 21, 2015 (mot seq 004).  ⁵ (See NYSCEF No. 82 [handwritten order, Hagler, J.].)

Plaintiff's makes its current cross-motion for summary judgment on the same grounds as it did on motion sequence 002 and explicitly incorporates its motion papers from that motion into this cross-motion. (See NYSCEF No. 142 at 14.) On those papers, plaintiff made out a prima facie case that Antell is liable as guarantor by submitting the guaranty (see NYSCEF No. 27) and representing that tenant failed to pay rent (see NYSCEF No. 25 at 2.)

Summary judgment must be denied. The Antell defendants have raised an issue of fact about whether Antell signed the guaranty or whether his signature was forged based on their submission of the expert report and Antell's affidavit (as discussed above on the branch of the motion to amend).

The branch of plaintiff's cross-motion for summary judgment on liability is denied.⁶

In contrast, the branch of plaintiff's motion for summary judgment striking the affirmative defenses is granted. Plaintiff provides no grounds for maintaining those defenses. The Antell defendants assert that Marcus aided and abetted fraud only as a crossclaim, not as a defense.

Accordingly, it is

ORDERED that the branch of Antell defendants' motion to vacate the 2019 stipulation of discontinuance among plaintiff, Marcus, and CAAM is granted; and that stipulation is hereby vacated; and it is further

ORDERED that the branch of Marcus's cross-motion to resubmit the 2019 stipulation for this court to so-order is granted, and Marcus may submit a proposed stipulation for so-ordering within 14 days entry of this order; and it is further

ORDERED that the branch of the Antell defendants' motion to vacate the note of issue and compel disclosure is denied; and it is further

ORDERED that the branch of the Antell defendants' motion to amend their answer to include additional affirmative defenses and crossclaims against Marcus is denied, except that the portion of the motion to add a crossclaim against Marcus for aiding and abetting fraud is granted, and the Antell defendants may file an amended answer adding the aiding-and-abetting claim within 30 days entry of this order; and it is further

ORDERED that the branch of plaintiff's cross-motion for summary judgment on the complaint is denied; and it is further

ORDERED that the branch of plaintiff's cross-motion for summary judgment dismissing the Antell defendants' affirmative defenses is granted.

DATE 5/27/2026

GERALD LEBOVITS, J.S.C.

FOOTNOTES

1.   It is unclear why the Antell defendants were not parties to the May 2019 conference order. Regardless, the Antell defendants do not appear to dispute the validity of that conference order or its NOI deadline.

2.   The court sees no indication of a pending summary-judgment motion on Index No. 653650/2013. Nor is it clear why a summary-judgment motion pending in another action would bear on a stipulation of discontinuance in this action.

3.   To the extent other courts have held that a court may not so-order a stipulation of discontinuance absent signatures from all parties when a summary-judgment motion is pending (see e.g. Scholtz v Catholic Health Sys. of Long Is., Inc., 2008 Slip Op 52236(U), *8 [Sup Ct, Suffolk County 2008], affd on other grounds 70 AD3d 808 [2d Dept 2010]), those decisions are not binding.

4.   The court does not reach plaintiff's contention that the Antell defendants' proposed discovery is barred by law-of-the-case doctrine based on Justice Hagler's ruling in a related case (Index No. 653650/2013). (See NYSCEF No. 142 at 11-14.)

5.   According to the Antell defendants, the court then determined in an oral decision that the motion should be denied, thereby resolving the motion. (See NYSCEF No. 167 at 23.) The Antell defendants say that they requested a copy of the transcript from the hearing on motion sequence 004 but were told that the court reporter would not have a copy of a transcript from an argument that occurred 10 years earlier. (See NYSCEF No. 167 at 23 n 5.) And they have no other evidence about the resolution of the motion. They further contend that the current cross-motion for summary judgment is untimely in that it was filed more than 60 days past the NOI deadline, as required by the part rules of this court. In contrast, plaintiff says that motion sequence 002 is still pending because the order memorializing that decision provides only for vacatur of the default judgment and restored the "case to the motion calendar." (NYSCEF No. 82.) But whether the request for summary judgment stems from an earlier motion or from this cross-motion makes no difference given this court's conclusion that a triable issue of fact exists.

6.   In its notice of cross-motion, plaintiff seeks to transfer this action to Justice Shlomo Hagler. But Justice Hagler no longer sits in Supreme Court. He is currently an Additional Justice of the Appellate Division, First Department.

Gerald Lebovits, J.