The opinion
Eldad Prime, LLC v Aryeh
2025 NY Slip Op 30142(U)
January 14, 2025
Supreme Court, New York County
Docket Number: Index No. 652687/2019
Judge: Louis L. Nock
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.
INDEX NO. 652687/2019
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/14/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LOUIS L. NOCK PART 38M
Justice
---------------------------------------------------------------------------------X INDEX NO. 652687/2019
ELDAD PRIME, LLC,
MOTION DATE 05/26/2023
Plaintiff,
MOTION SEQ. NO. 002
-v-
NATHANIEL ARYEH and HEALTH WORKS LEASING BH,
DECISION + ORDER ON
LLC,
MOTION
Defendants.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document numbers (Motion 002) 24, 25, 26, 27, 28,
29, 30, 31, 32, 33, 34, 35, 36, and 37
were read on this motion to VACATE - DECISION/ORDER/JUDGMENT/AWARD.
LOUIS L. NOCK, J.S.C.
Upon the foregoing documents, defendant Nathaniel Aryeh’s motion to vacate the court’s
order of April 18, 2023, which granted summary judgment in favor of plaintiff Eldad Prime,
LLC (“plaintiff” or “landlord”) (NYSCEF Doc. No. 17), is denied, for the reasons set forth in the
affirmation in opposition of Mark F. Magnozzi, Esq. (NYSCEF Doc. No. 36), in which the court
concurs, as summarized herein. Plaintiff’s cross-motion to lift the stay of the court’s prior order
is granted.
On a motion to vacate a judgment or order for excusable default, the party seeking to
vacate must establish a reasonable excuse for its default and a meritorious defense to the claim
(CPLR 5015[a][1]; e.g., Bendeck v Zablah, 105 AD3d 457 [1st Dept 2013]). Defendant Aryeh
offers, as a reasonable excuse, that his attorney’s office mis-calendared the date on which Aryeh
was to submit opposition papers to the motion (Rahman aff., NYSCEF Doc. No. 27, ¶ 4). Law
office failure, sufficiently detailed, is a reasonable excuse for purposes of the statute (Blanco v
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Quality Gas Corp., 214 AD3d 432, 433 [1st Dept 2023]). The court notes that this is the second
time that Aryeh failed to submit opposition to the motion for summary judgment, but does not
find that, as plaintiff urges, Aryeh has engaged in a pattern of dilatory conduct that should
preclude law office failure as an excuse (e.g. Chelli v Kelly Group, P.C., 63 AD3d 632, 633 [1st
Dept 2009]).
But although Aryeh has established a reasonable excuse for his default, he fails to
establish a meritorious defense to the motion. In the court’s prior summary judgment decision,
the court found that plaintiff had established prima facie entitlement to summary judgment
against Aryeh for breaching his guarantee of the lease between plaintiff and defendant Health
Works Leasing BH, LLC (“tenant”) (decision and order, NYSCEF Doc. No. 17 at 1-2). As a
defense, Aryeh argues that plaintiff may have accepted tenant’s surrender of the premises in
exchange for retaining the security deposit and first month’s rent. He also argues that the lease
was never validly commenced in the absence of a commencement letter sent to tenant. Neither
defense is successful. As to the lack of commencement letter, Aryeh’s affidavit on this point is
based on information and belief (Aryeh aff., NYSCEF Doc. No. 28, ¶ 7), which is insufficient to
create a triable issue of fact (Life Sourcing Co., Ltd. V Shoez, Inc., 179 AD3d 439 [1st Dept
2020]). Aryeh also admits that plaintiff gave tenant possession of the premises in May of 2016
and billed tenant for rent for June 2016 following the first month’s rent paid by tenant when it
executed the lease (Aryeh aff., NYSCEF Doc. No. 28, ¶¶ 9, 14, 16; see also tenant ledger,
NYSCEF Doc. No. 14, Exhibit 4), thus fixing the date for the beginning of the lease.
As to whether plaintiff accepted an early surrender of the premises, Aryeh alleges that his
son, tenant’s principal, decided unilaterally to back out of the lease (Aryeh aff., NYSCEF Doc.
No. 28, ¶ 15. Neither the lease nor the guaranty allows defendants to unilaterally terminate the
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agreements. Both the lease and guaranty also provide that any modification to their terms must
be in a writing signed by plaintiff. Specifically, the lease provides as follows with respect to the
surrender of the premises:
No act or thing done by Landlord or Landlord’s agents during the Term shall be
deemed an acceptance of a surrender of the Premises, and no agreement to accept
such surrender shall be valid unless in writing signed by Landlord. No employee
of Landlord or of Landlord’s agents shall have any power to accept the keys of
the Premises prior to the termination of this Lease. The delivery of keys to any
employee of Landlord or of Landlord’s agents shall not operate as a termination
of this Lease or a surrender of the Premises.
(Lease, NYSCEF Doc. No. 14, Exhibit 1, ¶ 24 [B].) The lease also contains a standard merger
clause (id., ¶ 24 [E]). Likewise, Aryeh’s guaranty provides that “[n]o waiver or modification of
any provision of this Guaranty nor any termination of this Guaranty shall be effective unless in
writing and signed by Landlord” (guaranty, NYSCEF Doc. No. 14, Exhibit 2, ¶ 18). No oral
agreement to modify the terms of the agreements is enforceable (General Obligations Law § 15-
301 [1]; Subway Real Estate Corp. v Jahedi, 220 AD3d 433, 434 [1st Dept 2023]). Aryeh fails
to submit any writing signed by plaintiff that would satisfy these provisions. For these reasons,
Aryeh fails to establish a meritorious defense to the motion for summary judgment and the
motion to vacate must be denied.
Accordingly, it is hereby
ORDERED that defendant Aryeh’s motion to vacate the court’s prior decision granting
summary judgment to plaintiff is denied; and it is further
ORDERED that the stay of the court’s prior decision established by the court’s interim
order dated April 25, 2023 is vacated.
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NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/14/2025
This constitutes the decision and order of the court.
ENTER:
1/14/2025 $SIG$
DATE LOUIS L. NOCK, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
APPLICATION:
GRANTED
SETTLE ORDER
X DENIED GRANTED IN PART
SUBMIT ORDER
□ OTHER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT
□ REFERENCE
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