Brixmor Sunshine Square LLC v. Vision Ctr. of Medford

2022 NY Slip Op 31243(U)

BRIXMOR SUNSHINE SQUARE LLC, Plaintiff, v. VISION CENTER OF MEDFORD, INC. D/B/A VISION WORLD OF MEDFORD, JOSEPH GRAFFEO, BRADLEY POLAN Defendant.

Index No. 656507/2019

Supreme Court, New York County

April 11, 2022

Unpublished Opinion

Motion Date 04/08/2022

Motion Seq. No. 002

PRESENT: HON. LAURENCE LOVE, JUSTICE

DECISION + ORDER ON MOTION

LAURENCE LOVE, JUDGE

The following e-filed documents, listed by NYSCEF document number (Motion 002) 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87 were read on this motion to/for JUDGMENT - SUMMARY .

Upon the foregoing documents, the decision on plaintiff's motion for summary judgment and defendant, VISION CENTER OF MEDFORD INC. d/b/a VISION WORLD OF MEDFORD cross-motion seeking leave to serve and file a Late Answer is as follows:

In an Order dated November 13, 2020, this Court denied plaintiff's initial motion, seeking summary judgment in lieu of complaint, which this Court converted to a regular summary judgment motion as the Court "could not ascertain based upon plaintiff's rent ledger how the total amount of rent due was calculated and plaintiff's affidavit is silent on the day that defendants actually vacated the premises." Plaintiff having corrected said deficiencies seeks an order: (i) pursuant to CPLR 3215, granting Plaintiff default judgment against defendant Vision Center of Medford, Inc. d/b/a Vision World of Medford ("Tenant") for not less than $39, 717.57 based upon Tenant's failure to appear in this action; (ii) pursuant to CPLR 3212, granting Plaintiff summary judgment against defendants Joseph Graffeo, and Bradley Polan (collectively, "Guarantors") and awarding Plaintiff a money judgment for not less than $39, 717.57 and (iii) dismissing Guarantors' affirmative defenses.

Summary Judgment should not be granted where there is any doubt as to the existence of a material issue of fact. Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595 (1980). The function of the court when presented with a motion for Summary Judgment is one of issue finding, not issue determination. Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957); Weiner v. Ga-Ro Die Cutting, Inc., 104 A.D.2d 331, 479 N.Y.S.2d 35 (1^st Dept., 1984) aff'd 65 N.Y.2d 732, 429 N.Y.S.2d 29 (1985). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985). Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party. Assaf v. Ropog Cab Corp., 153 A.D.2d 520 (1st Dep't 1989). Summary judgment will only be granted if there are no material, triable issues of fact Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957).

In support of its motion, plaintiff submits the affidavit of David Mickelburg, Director of Collections for Brixmor Property Group, an affiliate of plaintiff Brixmor Sunshine Square LLC, the relevant lease agreement, a personal guarantee signed by defendants Joseph Graffeo and Bradley Pollan, the stipulation of settlement in the underlying commercial landlord and tenant holdover action and the rent ledger. Plaintiff leased a premises located at 700 Patchogue Yaphank Road, Building Unit 165001, Store No. 15, Medford, NY 11763 to defendant, Vision Center of Medford, Inc. pursuant to a written commercial lease agreement, dated February 19, 2014 for a term ending April 30, 2019. Said lease was personally guaranteed by defendants Joseph Graffeo and Bradley Pollan such that each were responsible for fifty percent of the guaranteed amounts. Following the expiration of the lease, defendants remained in possession of the demised premises resulting in a summary holdover proceeding against Tenant in Suffolk County District Court, Sixth District, entitled Brixmor Sunshine Square LLC v. Vision Center of Medford, Inc. d/b/a/ Vision World of Medford (L&T Index No. LT-001585-19). Said proceeding was resolved by a stipulation of settlement which provided that Tenant "owes $42, 910.25 in rent and additional rent through April 30, 2019 and use and occupancy through May 31, 2019," and that Landlord's claim for rent and...