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Arthur at the Westchester, Inc. v Westchester Mall, LLC Published Decision

By Massimo F. D'Angelo


Arthur at the Westchester, Inc. v Westchester Mall, LLC 2013 NY Slip Op 01509 Decided on March 12, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 12, 2013
Mazzarelli, J.P., Saxe, DeGrasse, Manzanet-Daniels, Clark, JJ.
9499 600293/10

[*1]Arthur at the Westchester, Inc., etc., et al., Plaintiffs-Appellants-Respondents,

v

Westchester Mall, LLC, Defendant-Respondent-Appellant.

Tenenbaum Berger & Shivers LLP, Brooklyn (David M.
Berger of counsel), for appellants-respondents.
Braff, Harris & Sukoneck, New York (Massimo F. D’Angelo
of counsel), for respondent-appellant.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered February 21, 2012, which, insofar as appealed from, denied plaintiffs’ motion to the extent that it sought to dismiss the counterclaims for rent against plaintiff guarantor and granted their motion to the extent that it sought summary judgment as to liability on their causes of action for wrongful eviction, unanimously affirmed, with costs.

The guaranty, which recited that it was made to induce execution of a lease, was supported by consideration notwithstanding that it was signed before the lease (see Teitelbaum v Mordowitz, 248 AD2d 161 [1st Dept 1998]; Michelin Mgt. Co. v Mayaud, 307 AD2d 280, 281 [2nd Dept 2003]).

Vacatur of the default judgment in the summary proceeding for improper service of process precludes any argument that the evictions were lawful (see Maracina v Shirrmeister, 105 AD2d 672, 673 [1st Dept 1984]). We note that the lease did not authorize the landlord’s re-entry to the commercial premises without legal process (see North Main St. Bagel Corp. v Duncan, 6 [*2]AD3d 590, 591 [2nd Dept 2004]).

We have considered the remaining contentions of the parties and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 12, 2013

CLERK

Related Attorneys

Massimo F. D'Angelo

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS