The opinion
10839 Assoc. v Big Apple Time LLC
2025 NY Slip Op 32284(U)
June 23, 2025
Supreme Court, New York County
Docket Number: Index No. 651757/2023
Judge: Lori S. Sattler
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.
FILED: NEW YORK COUNTY CLERK 06/25/2025 10:23 AM INDEX NO. 651757/2023
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 06/25/2025
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 02M
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10839 ASSOCIATES, INDEX NO. 651757/2023
Plaintiff,
MOTION DATE 02/17/2025
-v-
MOTION SEQ. NO. 002
BIG APPLE E TIME LLC,KEN LEUNG
Defendant.
DECISION + ORDER ON
MOTION
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HON. LORI S. SATTLER:
The following e-filed documents, listed by NYSCEF document number (Motion 002) 38, 39, 40, 41
were read on this motion to/for REARGUMENT/RECONSIDERATION .
In this action alleging breach of a commercial lease, Defendants Big Apple E Time LLC
(“Big Apple”) and Ken Leung (“Leung”) (collectively “Defendants”) move for an order granting
leave to reargue the Court’s January 22, 2025 Decision and Order (NYSCEF Doc. No. 35, “Prior
Decision”) and, upon reargument, modifying the Prior Decision to deny plaintiff 10839
Associates (“Plaintiff”) summary judgment as to liability and restoring Defendants’ third and
fourth affirmative defenses. Plaintiff opposes the motion.
The Court incorporates by reference the factual background set forth at length in the Prior
Decision. In relevant part, this action arises out of a ten-year lease (NYSCEF Doc. No. 11,
“Lease”) executed by Big Apple for a restaurant space in Plaintiff’s building located at 108 West
39th Street in Manhattan (“Premises”) on January 22, 2020. Leung, Big Apple’s principal,
concurrently executed a limited guaranty for Big Apple’s obligations under the Lease (NYSCEF
Doc. No. 12, “Guaranty”).
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FILED: NEW YORK COUNTY CLERK 06/25/2025 10:23 AM INDEX NO. 651757/2023
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The Lease provided that its term began on the “Commencement Date,” defined as the
“Delivery of Possession Date” set forth in its Article 6, which in turn defined the latter date as
“the date on which Landlord shall deliver vacant possession of the Premises” (Lease § 6.03[a]).
Per section 6.03(b)(ii), the “Delivery of Possession date” was to be “confirmed by Landlord and
Tenant in a ‘Commencement Date Certificate’ in the form attached hereto as Exhibit C.”
Plaintiff did not annex a copy of that Commencement Date Certificate to its papers in the prior
motion. The Lease provided Big Apple a rent abatement from the earlier of either ninety days
after the Commencement Date or on the date Big Apple opened for business.
The parties do not dispute Defendants never opened a restaurant on the Premises or that
Big Apple took possession of the Premises. They do, however, dispute when Big Apple took
possession of the Premises and when its obligation to pay rent began. Plaintiff claims that Big
Apple took possession upon executing the Lease in January 2020, while Defendants claim that
Big Apple was prevented from taking possession of the Premises due to a Department of
Buildings Peremptory Vacate Order that was in effect through March 9, 2020. The parties
executed a Surrender Agreement in May 2022 in which they agreed that it was without prejudice
for Plaintiff’s claims to rent, additional rent, and other amounts owing under the Lease and
Guaranty. Big Apple accrued arrears through May 2022, which remained unpaid after the
Surrender Agreement’s execution, and Plaintiff continued charging arrears until it commenced
this action in April 2023.
In the Prior Decision, the Court found that Plaintiff was entitled to summary judgment as
to liability only on its first and third causes of action against Big Apple and Leung for their
respective breach of the Lease and Guaranty. It found no issue of fact as to Defendants’ breach
of their respective obligations, based upon Plaintiff’s submission of a rent ledger showing
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accrued rent arrears and an affidavit from its managing agent establishing Big Apple’s default,
and Defendants’ admission that Big Apple defaulted under the lease (Prior Decision at 3, citing
NYSCEF Doc. No. 22, Leung aff ¶ 3). The Court found that there was a material issue of fact as
to the rent commencement date that precluded an award of damages.
The Court also, in relevant part, dismissed Defendants’ third affirmative defense alleging
constructive eviction and their fourth affirmative defense seeking to limit Plaintiff’s damages to
rent obligations accruing through May 2022, based upon Plaintiff’s acceptance of Big Apple’s
surrender of the Premises. It found that the constructive eviction defense was without merit
because Defendants failed to specify a hazardous condition that caused the putative constructive
eviction and that their alternative bases for this defense, a lack of gas or damage to the
ventilation system, were expressly waived in the Lease. As to the fourth affirmative defense, the
Court found that the Surrender Agreement expressly preserved Plaintiff’s rights under the Lease
to recover rent that came due after any termination.
Defendants now seek to reargue these portions of the Prior Decision. A motion for leave
to reargue must “be based upon matters of fact or law allegedly overlooked or misapprehended
by the court in determining the prior motion” (CPLR 2221[d][2]). Defendants claim that the
Court should not have granted Plaintiff summary judgment as to liability or dismissed the fourth
affirmative defense because there was an issue of fact as to whether Leung was induced to sign
the Surrender Agreement by a promise that rent obligations would cease upon surrender of the
Premises, citing paragraphs 21 through 28 of Leung’s affidavit in opposition to the prior motion
where he advances this claim. They further argue that the Court failed to consider the language
of the Guaranty wherein Leung guaranteed payment of all rent and additional rent “through the
Surrender Date” (Guaranty ¶ 1). Last, Defendants argue that the third cause of action for
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constructive eviction should be reinstated because the Court failed to consider that the
Peremptory Vacate Order in effect in January 2020 was “prima facie proof that a hazardous
condition existed in the premises” (NYSCFE Doc. No. 39 ¶ 37).
The motion is denied as Defendants fail to cite any facts or law that the Court overlooked
in rendering the Prior Decision. Rather, they merely reiterate arguments raised in the prior
motion that the Court rejected. As to summary judgment on liability, the Court considered the
evidence proffered by the parties, including Defendants’ admission by way of Leung’s affidavit
conceding that they did owe rental arrears, and found that Defendants could be held liable for
their respective breaches of the Lease and Guaranty. The Court deferred the question of
damages to trial based on the lack of evidence as to the Lease’s commencement date.
In declining to rule that Plaintiff could only be entitled to rent arrears accruing through
May 2022, and in dismissing Defendants’ fourth affirmative defense to that effect, the Court
relied on the express language of the Surrender Agreement and Lease, which provides for the
recovery of rental arrears accruing after termination (see Surrender Agreement ¶ 3; Lease §
26.01[b]). Defendants’ argument that the Court should have limited Leung’s liability for post-
termination rent under the Guaranty must fail, as the Guaranty specifies that his liability for
unpaid rent is limited to those accruing through the “Surrender Date,” defined therein as “at least
90 days after,” inter alia, “Tenant has paid all Rent and Additional Rent for any and all other
charges then accrued under the Lease” (Guaranty ¶ 2). The Court also rejects Defendants’
contention as to the constructive eviction affirmative defense, as this argument was not raised in
opposition to the prior motion.
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FILED: NEW YORK COUNTY CLERK 06/25/2025 10:23 AM INDEX NO. 651757/2023
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 06/25/2025
Accordingly, it is hereby:
ORDERED that the motion is denied in its entirety.
6/23/2025 $SIG$
DATE LORI S. SATTLER, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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