54 THOMPSON ST, PH LLC v. DANIEL FINE
Index No. 659549/2024
Supreme Court, New York County
May 2, 2025
2025 NY Slip Op 31606(U)
Hon. Arthur F. Engoron
Cases posted with a “30000” identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System‘s eCourts Service. This opinion is uncorrected and not selected for official publication.
54 THOMPSON ST, PH LLC, Plaintiff, - V - DANIEL FINE, Defendant.
PART 37
INDEX NO. 659549/2024
MOTION DATE 12/10/2024
MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, were read on this motion for SUMMARY JUDGMENT IN LIEU OF COMPLAINT.
Upon the foregoing documents, and for the reasons stated hereinbelow, the motion for summary judgment in lieu of complaint is granted on liability only.
Background
On April 15, 2024, non-party FineCo, LLC, (“Tenant“) entered into a two-year residential lease (the “Lease“) with plaintiff, 54 Thompson St, PH LLC, as landlord, for a penthouse apartment on the 7th floor of the condominium building located at 54 Thompson Street, New York, NY. NYSCEF Doc. No. 5. The Lease commenced on June 1, 2024 and expires on May 31, 2026. Pursuant to the Lease, Tenant agreed to pay monthly rent in the amount of $45,000, plus additional rent, such as monthly electricity charges based on Tenant‘s usage. Section 13 of the Lease, which governs electricity and other utilities, states in part: “Stopping or reducing of service(s) will not be reason for Tenant to stop paying Rent, to make a money claim or to claim constructive eviction.”
On April 21, 2024, defendant, Daniel Fine, executed a personal guaranty of the Lease (the “Guaranty“). NYSCEF Doc. No. 8. Upon execution of the Lease, Tenant paid $45,000 toward the first month‘s rent (June 2024) and paid a $45,000 security deposit. NYSCEF Doc. No. 3.
Plaintiff alleges that since July 1, 2024, Tenant has remained in the apartment and failed to pay any rent. Id. Further, “Tenant has been consuming copious amounts of electricity[,]” with monthly charges totaling in the thousands, which Tenant has also failed to pay. Id.
On September 18, 2024, plaintiff filed a non-payment petition against Tenant in Civil Court of the City of New York, New York County, captioned 54 Thompson St, PH LLC v FineCo Enterprises, LLC et al, Index No. LT-31654-2024/NY (the “L&T Action“). The L&T Action remains pending. Pursuant to the Lease, Tenant is obligated to pay plaintiff‘s attorneys’ fees incurred as a result of Tenant‘s default, including in the L&T Action.
On December 10, 2024, pursuant to
In opposition, defendant underscores, inter alia, that: this is not a straightforward case for breach of a guaranty of a residential lease as alleged; plaintiff is suing the condominium board in another action; and plaintiff “conspicuously avoids the defective and on-going problems” that have been present from the outset and render the apartment “unlivable.” NYSCEF Doc. No. 33. Defendant alleges that, inter alia, the apartment has “no heating system in the winter months, multiple water leaks, no hot water, frequent water shut offs, and no AC during the summer months.” NYSCEF Doc. No. 16. Defendant cites text messages with Nick Lounsbury, an employee of non-party XL Management, which managed the condominium, confirming that Tenant would receive a rent abatement in August 2024 because of said apartment issues; however, defendant later received payment requests from plaintiff for that month. Id. Defendant alleges that despite repeated requests to plaintiff and its management, they have not resolved the problems with the apartment. Id.
Defendant argues it was “entirely within [its] right to withhold rent” because plaintiff breached the warranty of habitability. NYSCEF Doc. No. 33. To demonstrate this alleged breach, defendant attaches various emails, photographs, and text messages between Tenant, plaintiff, and XL Management from June 2024 through January 2025 documenting apartment issues, as well as his reports to 311. NYSCEF Doc. Nos. 17-28. Defendant cites Kerin v Kaufman, 296 AD2d 336, 337 (1st Dept 2002), for the proposition that
Defendant argues that due to the alleged breach of the warranty of habitability and disputed August 2024 rent abatement, the Guaranty does not qualify for
In reply, plaintiff attests, inter alia, that the apartment is “indisputably habitable, with all required services functioning properly.” NYSCEF Doc. No. 34. While Tenant has admitted to remaining in the apartment (albeit intermittently), plaintiff alleges that defendant and/or Tenant “illegally sublet the apartment to 4 other individuals, without the consent or permission of the landlord as required under the Lease.” Id. Plaintiff notes that it is the condominium, not plaintiff, that provides much of the services defendant complains of, such as heating, cooling, electricity, and hot water. Id. Further, plaintiff contends that “any complaints of damage or nonfunctioning items in the Apartment were caused solely by [d]efendant and/or Tenant and their demonstrated
Plaintiff argues that an unsubstantiated breach of warranty of habitability claim does not warrant a denial of plaintiff‘s motion. NYSCEF Doc. No. 40. Plaintiff points out that defendant does not dispute that the Guaranty is an instrument for the payment of money only, but only the amount of damages owed. Plaintiff notes that it is well-settled that “a dispute over the amount of damages is not a defense to liability pursuant to
Discussion
“When an action is based upon an instrument for the payment of money only ... the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint.”
Whether or not plaintiff has breached the warranty of habitability, defendant‘s assertion of a defense based on facts extrinsic to the Guaranty is insufficient to defeat the motion.
Contrary to defendant‘s argument, plaintiff has demonstrated that is entitled, pursuant to
In considering defendant‘s evidence submitted as to the August 2024 rent abatement from plaintiff‘s management, this Court recognizes that the amount of damages is in dispute. The Court has considered defendant‘s other arguments and finds them to be unavailing and/or non-dispositive.
Thus, the motion is granted as to liability only against defendant.
Thus, the motion of plaintiff, 54 Thompson St, PH LLC, for summary judgment in lieu of complaint is granted, and the Clerk is hereby directed to enter judgment against defendant, Daniel Fine, on liability only.
It is further ordered that the issue of damages and reasonable attorney‘s fees are hereby severed for an evidentiary hearing. Accordingly plaintiff shall, within 20 days of the date of this Decision and Order, serve a copy of this Decision and Order upon counsel for all parties and upon the Clerk of the General Clerk‘s Office and shall serve and file with said Clerk a Note of Issue and Statement of Readiness and shall pay the fee therefor. Plaintiff is further directed to contact chambers at SFC-Part37@nycourts.gov, within 20 days of filing the Note of Issue, to schedule the hearing.
5/2/2025
DATE
HON. ARTHUR F. ENGORON
ARTHUR F. ENGORON, J.S.C.
CHECK ONE: [ ] CASE DISPOSED [X] NON-FINAL DISPOSITION
APPLICATION: [X] GRANTED [ ] DENIED [ ] GRANTED IN PART [ ] OTHER
CHECK IF APPROPRIATE: [ ] SETTLE ORDER [ ] SUBMIT ORDER [ ] FIDUCIARY APPOINTMENT [ ] REFERENCE [ ] INCLUDES TRANSFER/REASSIGN