BRIDGE STREET ENTERPRISES v. PASTINO ITALIAN GRILL INC 55

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Supreme Court, Appellate Division, Fourth Department, New York.

BRIDGE STREET ENTERPRISES, Plaintiff-Appellant, v. PASTINO'S ITALIAN GRILL, INC., Russell Digristina, Charles Digristina, 55 Cheyenne Realty Corp., Carmel Ezzo, Defendants-Respondents, et al., Defendants.

Decided: September 28, 2007

PRESENT:  HURLBUTT, J.P., GORSKI, LUNN, FAHEY, AND PERADOTTO, JJ. Hancock & Estabrook, LLP, Syracuse (R. John Clark of Counsel), for Plaintiff-Appellant. Law Offices of Donald R. Gerace, Utica (Donald R. Gerace of Counsel), for Defendants-Respondents Pastino's Italian Grill, Inc., Russell Digristina and Charles Digristina. Saunders, Kahler, Amoroso & Locke, L.L.P., Utica (Gregory J. Amoroso of Counsel), for Defendants-Respondents 55 Cheyenne Realty Corp. and Carmel Ezzo.

 We agree with plaintiff that Supreme Court erred in denying its motion for summary judgment insofar as it seeks judgment on liability against defendants-respondents (defendants) and dismissal of the counterclaims asserted by defendants Pastino's Italian Grill, Inc. (Pastino's), Russell Digristina and Charles Digristina.   We therefore modify the order accordingly.   Pastino's is the third tenant-assignee on the lease between plaintiff as owner and defendant Carmella's Café of Dewitt, Inc. Defendant 55 Cheyenne Realty Corp. (Cheyenne) was the second tenant-assignee on the lease.   Russell Digristina and Charles Digristina are the guarantors of Pastino's obligations under the lease, and defendant Carmel Ezzo was the guarantor of Cheyenne's obligations under the lease.   We conclude that plaintiff met its initial burden with respect to defendants' liability by establishing that Pastino's violated the provisions of the lease by closing its restaurant, vacating the property, and ceasing to pay plaintiff rent.   Pastino's allegations that plaintiff “tacitly agreed” or “tacitly consented” to such actions and Russell Digristina's averments that plaintiff's property manager consented to such actions are insufficient to raise an issue of fact.   There is no evidence in the record before us indicating that plaintiff's property manager had power to act as an agent for plaintiff with respect to the lease.   In any event, any such consent would constitute a nonbinding oral modification of the lease inasmuch as the terms of the lease expressly prohibit oral modifications (see General Obligations Law § 15-301[1];  Netti v. LeFrois, 303 A.D.2d 971, 972, 758 N.Y.S.2d 442;  Fleet Bank v. Pine Knoll Corp., 290 A.D.2d 792, 795, 736 N.Y.S.2d 737).

 We further conclude that plaintiff established that it properly terminated the lease by letter dated November 30, 2005 and that defendants failed to raise an issue of fact with respect thereto.   The contentions of defendants that the termination letter was invalid because it recited the incorrect date of termination and was not signed by the proper party are raised for the first time on appeal and are thus not preserved for our review (see generally Barry v. Gorecki, 38 A.D.3d 1213, 1216, 833 N.Y.S.2d 329;  Giangrosso v. Kummer Dev. Corp., 8 A.D.3d 1037, 1038, 778 N.Y.S.2d 332).   We further reject the contention of Pastino's and the Digristinas that there are issues of fact precluding dismissal of their counterclaims.   The first, second, third and fifth counterclaims are premised in part on inadmissible hearsay, which is insufficient to raise an issue of fact with respect to the counterclaims (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718), and the counterclaims also rely on statements that, even if made, are merely nonbinding oral modifications of the lease (see Netti, 303 A.D.2d at 972, 758 N.Y.S.2d 442;  Fleet Bank, 290 A.D.2d at 795, 736 N.Y.S.2d 737).   Moreover, the purported fourth counterclaim for “unjustified damage” to the “ commercial reputation” of those defendants fails to state a cause of action (see State of New York v. General Elec. Co., 199 A.D.2d 595, 596, 604 N.Y.S.2d 355;  see also CPLR 3016[a] ).   Finally, we conclude that the court properly denied that part of plaintiff's motion seeking judgment on damages, inasmuch as there are issues of fact on the record before us with respect to plaintiff's damages (see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion insofar as it seeks judgment on liability against defendants Pastino's Italian Grill, Inc., Russell Digristina, Charles Digristina, 55 Cheyenne Realty Corp. and Carmel Ezzo and dismissal of the counterclaims and dismissing the counterclaims and as modified the order is affirmed without costs.

MEMORANDUM: