# 36th HY LLC v. Yan Rong Zhen

> New York Supreme Court, New York County · February 26, 2026 · 2026 NY Slip Op 30702(U)

URL: https://www.frixlaw.com/law-library/cases/11279463

## Case

- **Court:** New York Supreme Court, New York County
- **Decided:** February 26, 2026
- **Citations:** 2026 NY Slip Op 30702(U)
- **Precedential status:** Unpublished
- **Opinion:** Opinion by Emily Morales-Minerva
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

36th HY LLC v Yan Rong Zhen
2026 NY Slip Op 30702(U)
February 26, 2026
Supreme Court, New York County
Docket Number: Index No. 159766/2021
Judge: Emily Morales-Minerva
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.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.1597662021.NEW_YORK.001.LBLX036_TO.html[03/10/2026 3:45:51 PM]
FILED: NEW YORK COUNTY CLERK 02/27/2026 04:41 PM INDEX NO. 159766/2021
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/27/2026

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 42M
X
36TH HY LLC INDEX NO. 159766/2021

Plaintiff,
MOTION DATE 04/03/2025
- V -
MOTION SEQ. NO. 001
YAN RONG ZHEN,

Defendant.
DECISION+ ORDER ON
MOTION
X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13,
14, 15, 16, 17, 18, 19,20,21,22
were read on this motion to/for JUDGMENT-SUMMARY

APPEARANCES:

Kueker Marino Winiarsky & Bittens, LLP, New York, New York
(Michael Stephen Bennett, Esq., of counsel) for plaintiff.

HON. EMILY MORALES-MINERVA:

In this action for breach of a guaranty, plaintiff 36TH HY

LLC moves, by notice of motion (sequence number 01), for (1) an

order, pursuant to CPLR § 3212, granting it summary judgment

against defendant YAN RONG ZHEN; for (2) an order, pursuant to

CPLR § 3025 (c), amending the pleadings to conform them to the

proof; and for (3) an order, pursuant to CPLR § 3211 (b),

dismissing defendant's six affirmative defenses. Defendant does

not appear or submit opposition to the motion.

For the reasons set forth below, the motion (seq. no. 01) is

granted without opposition.

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Motion No. 001

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BACKGROUND

Pursuant to a 10-year commercial lease agreement, plaintiff

36TH HY LLC (owner-landlord), as owner and landlord, leased the

ground floor retail space and mezzanine of 367 West 36th Street,

New York, New York 10008 (premises) to non-party tenant Zhen Dim

Sum LLC (tenant) (see New York State Court Electronic Filing

System [NYSCEF] Doc. No. 01, complaint; see also NYSCEF Doc. No.

12, commercial lease agreement, dated September 13, 2018).

On the same date the lease agreement was executed between

owner-landlord and tenant, defendant YAN RONG ZHEN (guarantor)

guaranteed tenant's obligations under the lease, including the

monetary obligations thereunder, pursuant to a separate

unconditional guaranty (see NYSCEF Doc. No. 01, complaint; see

also NYSCEF Doc. No. 14, limited personal lease guaranty, dated

and notarized on September 13, 2018 [the body of said guaranty

identifies the guarantor as defendant YAN RONG ZHEN, includes a

signature with said defendant's name in print, a witness, and an

endorsement of a notary public]).

Specifically, the guaranty provides, in part:

" [T] he undersigned ('Guarantor' ) , a
shareholder of [non-party tenant], hereby
jointly and severally personally guarantees
to the Owner, its successors and assigns,
the full and prompt payment of all annual
rent and additional rental, as set forth in
the Lease, and any and all other sums and
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Motion No. 001

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charges payable by Tenant, its successors
and assigns, under the Lease .

"[I]f tenant shall default in the payment or
performance of any of the Obligations,
Guarantor shall forthwith pay such amounts
due and perform such other of the
Obligations to and for Owner, its successors
and assigns, including without limitation,
all reasonable attorneys' fees and
disbursements incurred by Owner in
connection with or caused by any such
default under the Lease and/or by the
enforcement of this Guaranty.

"This Guaranty is an absolute and
unconditional Guaranty of payment and of
performance. It shall be enforceable against
Guarantor, her successors and assigns,
without necessity for any suit or
proceedings on Owner's part against Tenant,
its successors and assigns, and without the
necessity of any notice of non-payment, non-
performance, or of any other notice of
demand to which Guarantor might otherwise be
entitled, all of which Guarantor hereby
expressly waives . .

"This Guaranty shall be a continuing
Guaranty, and the liability of Guarantor
hereunder shall in no way be affected,
modified or diminished by reason of
any . . . modification or extension of or
under the Lease or by reason of any
modification or waiver of or change in any
of the terms of the Lease . "

(NYSCEF Doc. No. 14, limited personal lease guaranty).

Thereafter, On October 23, 2018, owner-landlord and non-

party tenant executed a modification of the lease, which, among

other things not relevant here, modified the amount of the

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Motion No. 001

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annual base rent and security deposit (see NYSCEF Doc. No. 13,

first amendment to the lease, dated October 23, 2018).

At or around October of 2019, things began to sour between

non-party tenant and owner-landlord (see NYSCEF Doc. No. 01,

complaint). Specifically, non-party tenant ceased paying the

rent due under the lease, and guarantor failed to cover non-

party tenant's rent obligations (see id.; see also NYSCEF Doc.

No. 02, rent ledger). Consequently, owner-landlord commenced a

summary nonpayment proceeding against non-party tenant in the

Civil Court of the City of New York (see NYSCEF Doc. No. 17,

36th HY LLC v Zhen Dim Sum LLC, Index No. LT-050084-20/NY [filed

on or about January 20, 2020]).

In the meanwhile, while the summary nonpayment proceeding

remained pending, owner-landlord commenced this action against

guarantor for breach of the guaranty agreement, seeking payment

of rental arrears, additional rent, and attorneys' fees (see

NYSCEF Doc. No. 01, complaint, dated October 27, 2021).

Specifically, owner-landlord sought $204,420.45 in rent and

additional rent due, "and such further rent and additional rent

that accrues [] until the date of judgment", as well as

$42,977.34 in attorneys' fees (see id.).

Guarantor answered, asserting six affirmative defenses (see

NYSCEF Doc. No. 05, answer with affirmative defenses). The

defenses include (1) plaintiff's failure to perform under the
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Motion No. 001

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lease with the non-party tenant; (2) plaintiff's refusal to sign

off on applications to the DOB, interfering with non-party

tenant's business; (3) lack of entitlement to attorneys' fees;

(4) plaintiff's failure to meet the conditions precedent to

payment, "i.e. performance under the contract"; (5) plaintiff's

refusal to sign documents necessary for non-party tenant to

complete construction at the premises; and (6) plaintiff's

unclean hands, in that plaintiff "knew his actions in refusing

to sign necessary documents for construction would prevent [non-

party] tenant from" operating its restaurant (see id.).

While this action remained pending, the summary nonpayment

action proceeded to trial in the Civil Court of the City of New

York, and concluded on November 30, 2024 (see NYSCEF Doc. No.

17, trial decision and order [36th HY LLC v Zhen Dim Sum LLC,

Index No. LT-050084-20/NY (Civ Ct, NY Cnty [S. Ally, A.J.S.C])

The court (S. Ally, A.J.S.C.) found in favor of owner-landlord,

and awarded a money judgment in the total amount of

$2,684,641.26 1 for unpaid rent, additional rent, and attorneys'

fees against non-party tenant (see NYSCEF Doc. No. 18, Civil

Court judgment, dated January 24, 2025 [36th HY LLC v Zhen Dim

1 The judgment provides, "IT IS ADJUDGED that possession of the premises be
awarded to [owner-landlord] alone with a monetary judgment in the amount of
$1,764,253.61 due through December 1, 2024, plus interest from January 20,
2020, the date of the petition, in the amount of $783,906.04, plus costs and
disbursements in the amount of $135.00, plus legal fees in the amount of
$136,346.61, for a total judgment of $2,684,641.26" (NYSCEF Doc. No. 18,
civil court judgment [emphasis in original]).
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Sum LLC, Index No. LT-050084-20/NY (Civ Ct, NY Cnty [S. Ally,

A.J.S.C]). Thereafter, non-party tenant was evicted from the

premises (see NYSCEF Doc. No. 19, marshal's notice of legal

possession, dated March 07, 2025).

Now, owner-landlord moves for (1) an order, pursuant to

CPLR § 3212 [governing motions for summary judgment], granting

it summary judgment against defendant YAN RONG ZHEN; for (2) an

order, pursuant to CPLR § 3025 (c) [governing amendments to

conform the pleadings to the evidence], conforming the pleadings

to the proof to increase the damages sought against guarantor to

the amount awarded in Civil Court against non-party tenant; and

for (3) an order, pursuant to CPLR § 3211 (b), dismissing

defendant's six affirmative defenses.

Therein, owner-landlord contends entitlement to summary

judgment, arguing no triable issues of fact exist that guarantor

is liable to owner-landlord for the amount of the money judgment

entered in Civil Court (see NYSCEF Doc. No. 21, owner-landlord's

memorandum of law in support of instant motion) Specifically,

owner-landlord argues that the September 13, 2018 guaranty is

unconditional, clear and unambiguous, and guarantor has failed to

perform under said guaranty.

In support of its motion, owner-landlord submits the

affirmation of Justin Gorjian, managing agent of owner-landlord

and owner of the premises (NYSCEF Doc. No. 09); the deed to the
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premises (NYSCEF Doc. No. 11); the lease agreement entered into

between owner-landlord and tenant, dated September 13, 2018

(NYSCEF Doc. No. 12); the first amendment and modification to the

lease, dated October 23, 2018 (NYSCEF Doc. No. 13); the guaranty,

executed and notarized on September 13, 2018 (NYSCEF Doc. No. 14);

the Civil Court's decision and order issued pursuant to 36th HY

LLC v Zhen Dim Sum LLC, Index No. LT-050084-20/NY (NYSCEF Doc. No.

17); the Civil Court judgment issued pursuant to 36th HY LLC v

Zhen Dim Sum LLC, Index No. LT-050084-20/NY (NYSCEF Doc. No. 18);

the marshal's legal possession of the premises (NYSCEF Doc. No.

19); and attorneys' fees invoices (NYSCEF Doc. No. 20).

Though defendant continues to be represented by counsel in

this proceeding, defendant does not appear or submit opposition

to the motion (seq. no. 01).

ANALYSIS

"On a motion for summary judgment, the moving party must

'make a prima facie showing of entitlement to judgment as a

matter of law, tendering [evidentiary proof in admissible form]

to demonstrate the absence of any material issues of fact'"

(Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP,

26 NY3d 40, 49 [2015], quoting Alvarez v Prospect Hosp., 68 NY2d

320, 324 [1986]; Friends of Thayer Lake LLC v Brown, 27 NY3d
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1039, 1043 [2016] [stating the same principle]). It is black

letter law that such proof shall include the "affidavit" of a

person having personal knowledge of the facts, "a copy of the

pleadings" and "other available proof, such as depositions and

written admissions" (see CPLR § 3212 [bl).

"Once this burden is met, the burden shifts to the opposing

party to submit proof in admissible form sufficient to create a

question of fact requiring a trial" (Kershaw v Hospital for

Special Surgery, 114 AD3d 75, 82 [1st Dept 2013], citing Kesson

v Algaze, 84 NY2d 1019 [1995]; De Lourdes Torres v Jones, 26

NY3d 742, 763 [2016] [holding that if the moving party makes the

requisite showing, the non-moving party then has the burden "'to

establish the existence of [factual issues] which require a

trial of the action'"]).

With respect to establishing liability under a guaranty,

the proponent of said relief must demonstrate "the existence of

the guaranty, the underlying debt, and the guarantor's failure

to perform under the guaranty" (Cooperatieve Centrale

Raiffeisen-Boerenleenbank, B.A. v Navarro, 25 NY3d 485, 492

[2015]; 3 East 54th New York LLC v Chatiris, 225 AD3d 413 [1st

Dept 2024]).

In that regard, "[a] guaranty is a promise to fulfill the

obligations of another party, and is subject 'to the ordinary

principles of contract construction'" (Cooperatieve Centrale
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Raiffeisen-Boerenleenbank, B.A., 25 NY3d at 492; Wilson v 2600

Elmwood LLC, 236 AD3d 1213, 1214 [3d Dept 2025]). Under those

principles, "a written agreement that is complete, clear and

unambiguous on its face must be enforced according to the plain

meaning of its terms" (Greenfield v Philles Records, 98 NY2d

562, 569 [2002]).

Here, owner-landlord demonstrates its prima facie

entitlement to judgment as a matter of law in connection with

the guaranty. Owner-landlord submits proof of the existence of

the unconditional guaranty (NYSCEF Doc. No. 14, guaranty); the

underlying lease agreement (NYSCEF Doc. No. 12, lease) and debt

owed (NYSCEF Doc. No. 18, Civil Court judgment); and guarantor's

failure to make payment in accordance with the terms of the

guaranty (NYSCEF Doc. No. 09, affirmation of Joseph Gorjian,

managing agent for owner-landlord and owner of the premises

[stating that "to date, neither tenant nor guarantor has paid

any monies due under the judgment and the entire $2,684,641.26

remains due"]).

Specifically, the Civil Court judgment and order entered in

owner-landlord's favor against non-party tenant represents the

rent arrears owed through December 1, 2024, thereby establishing

the existence and amount of the debt owed (see NYSCEF Doc. No.

09 at 6). Further, managing agent and owner Joseph Gorjian

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attests to non-party tenant's failure to pay the amount due

under the January 24, 2025 Civil Court money judgment (see id.).

That unpaid judgment establishes guarantor's liability

pursuant to the express terms of the guaranty (see STl Realty

LLC v Carroll, 234 AD3d 510, 511 [1st Dept 2025] [holding "the

landlord submitted the Civil Court money judgment and orders

against the tenant [] representing all monies owed [] thus

establishing the guarantor's liability for the amounts of the

money judgment]; 27 W 72nd St. Note Buyer LLC v Terzi, 194 AD3d

630, 630-631 [1st Dept 2021]). It is well established that "a

guarantor is bound by a judgment resulting from a breach of a

lease they guaranteed, even if the guarantor was not a party to

the underlying action or proceeding" (Deco Towers Assoc., LLC v

Fisch, 219 AD3d 1245, 1246 [1st Dept 2023]; [holding that

"contrary to defendants' contention, they are bound by the

judgment that was entered in Civil Court as guarantors of the

tenant's obligation"]; see also Marina Towers Assoc., L.P. v Yu,

177 AD3d 469, 469 [1st Dept 2019] [stating the same

principles]).

Further, by failing to oppose the motion or otherwise

appear, guarantor has failed to raise any material, triable

issue of fact (Sears Holding Mgmt. Corp. v Rockaway Realty

Assocs., LP, 176 AD3d 433, 433 [1st Dept 2019] [holding: "as

defendants submitted no relevant admissible evidence in
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opposition to the motion, we affirm the granting of summary

judgment for breach of contract in plaintiff's favor"];

Zuckerman v City of New York, 49 NY2d 557, 560 [1980]).

Therefore, this court grants summary judgment to owner-landlord.

Likewise, guarantor's six affirmative defenses are stricken

and dismissed as a matter of law. The guaranty agreement

executed by guarantor is unconditional and absolute, and waives

the affirmatives defenses guarantor asserts in her answer (see

NYSCEF Doc. No. 14, guaranty, 1 4 ["This guaranty is an absolute
and unconditional guaranty of payment"]; 1 8 ["Guarantor hereby
waives all defenses which might be available to a surety"]).

Additionally, the affirmatives defenses all relate to non-party

tenant, and are not guarantor's defenses to assert (see I Bldg,

Inc. v Hong Mei Chung, 137 AD3d 478 [1st Dept 2016]) . 2

Even if guarantor did not waive her defenses pursuant to

the express language of the guaranty, the six affirmative

defenses would nonetheless be dismissed. Guarantor's

affirmative defenses consist of nothing more than bare legal

conclusions, and guarantor, in failing to oppose the instant

motion, presents no factual or legal basis for maintaining said

defenses (Chrysler East Building, LLC v Keenwawa, Inc., 217 AD3d

494, 494-495 [1st Dept 2023]; see also ConnectOne Bank v Legacy

2 Indeed, non-party tenant asserted many of the same affirmative defenses in
the summary nonpayment proceeding, all of which were dismissed by the Civil
Court (see NYSCEF Doc. No. 17).
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Builders/Developers Corp., 238 AD3d 632, 633 [1st Dept 2025]

["Supreme Court providently exercised its discretion when it

dismissed defendants' 11 affirmative defenses as 'only a bare

legal conclusion without supporting facts'"]}.

Next, the Court turns to the branch of owner-landlord's

motion seeking to conform the pleadings to the proof pursuant to

CPLR § 3025 (c} -- namely, the Civil Court money judgment

entered in favor of owner-landlord and against non-party tenant

-- so as to increase the amount of damages sought herein to

$2,684,641.26. "A motion to conform the pleadings to the proof

[pursuant to CPLR § 3025 (c}] 3 is a matter committed to the trial

court's sound discretion and, absent undue prejudice or

surprised, should be freely granted" (Paton v Weltman, 23 AD3d

895, 896 [3d Dept 2005], citing Murray v City of New York, 43

NY2d 400, 404-405 [1977]; see also Castor Petroleum, Ltd. v

Petroterminal de Panama, S.A., 90 AD3d 424 [1st Dept 2011]}.

Here, owner-landlord submits the Civil Court money judgment

entered against non-party tenant, which represents all monies

owed to owner-landlord (NYSCEF Doc. No. 18}. Pursuant to the

unambiguous language of the guaranty, guarantor promised to, in

the event of tenant's default, fulfill non-party tenant's

obligations under the lease, including the payment of rent,

3 CPLR § 3025 (c) provides, "The court may permit pleadings to be amended
before or after judgment to conform them to the evidence, upon such terms as
may be just including the granting of costs and continuances."
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additional rent, and reasonable attorneys' fees incurred by

owner-landlord (see NYSCEF Doc. No. 14, guaranty). Accordingly,

owner-landlord is entitled to conform the pleadings to the proof

to increase the damages sought against guarantor to

$2,684,641.26, representing the unpaid rent, additional rent,

and attorneys' fees owed by non-party tenant and, by virtue of

the guaranty, by guarantor.

Further, amending the complaint to seek the full amount due

under the January 24, 2025 money judgment does not unduly

surprise or prejudice guarantor. Guarantor was on notice of her

obligation to pay these sums under both the express terms of

the guaranty and the complaint, which seeks "such further rent

and additional rent that accrues [] until the date of judgment"

(see Briarpatch Ltd., L.P. v Briarpatch Film Corp., 60 AD3d 585

[1st Dept 2009] [holding that "there was no showing of prejudice

or surprise from plaintiffs' delay in asserting new claims to

conform the complaint to the proof and to increase the ad damnum

clause"]). Notably, by failing to oppose or otherwise appear on

the instant motion, guarantor proffers no proof of prejudice.

Lastly, owner-landlord seeks to recover from guarantor the

attorneys' fees incurred in this action, which total $1,922.92

( ~ NYSCEF Doc. No. 21, memorandum of law, p 8; see also NYSCEF

Doc. No. 20, invoices). "Under the American Rule, a prevailing

party in litigation generally may not recover attorney's fees
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from the losing party . . . unless an award is authorized by

agreement between the parties, statute or court rule" (Sage

Sys., Inc. v Liss, 39 NY3d 27, 29 [2022], citing Hooper Assoc. v

AGS Computers, 74 NY2d 487, 491 [1989]). Here, paragraph three

of the guaranty expressly provides for the recovery of

"reasonable attorneys' fees incurred by [owner-landlord] in

connection with or caused by any such default under the Lease

and/or by the enforcement of this Guaranty" (NYSCEF Doc. No. 14,

guaranty [emphasis added]). Therefore, owner-landlord is

entitled to recover its reasonable attorneys' fees from

guarantor, and the Court shall direct an inquest to determine

the appropriate amount.

Accordingly, it is hereby

ORDERED that the motion (seq. no. 01) of plaintiff 36TH HY

LLC to amend the complaint to increase the damages sought in the

complaint to include all amounts due pursuant to the Civil Court

money judgment entered on January 24, 2025, is granted, without

opposition; it is further

ORDERED that the motion of plaintiff 36TH HY LLC for summary

judgment against defendant YAN RONG ZHANG is granted, without

opposition; it is further

ORDERED that the motion of plaintiff 36TH HY LLC to dismiss

defendant's YAN RONG ZHANG six affirmative defenses is granted,

without opposition;
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ORDERED the Clerk of Court is directed to enter judgment in

favor of plaintiff 36TH HY LLC and against defendant YAN RONG ZHANG

in the principal amount of $2,684,641.26; it is further

ORDERED that, within twenty days from the date of this

decision and order, plaintiffs shall serve a copy of this order

with notice of entry on defendant, as well as on the Clerk of

the Court, who shall enter judgment accordingly; it is further

ORDERED that a hearing on plaintiff's claim for attorneys'

fees shall be held on June 03, 2026 at 12:00 P.M., in Courtroom

574, located at 111 Centre Street, New York County Supreme

Court; and it is further

ORDERED that the Clerk of Court shall mark the file

accordingly.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

2/26/2026
DATE
e~~~A-~~
EMILY MOi.ALES-MINERVA, J.S.C.
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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Motion No. 001

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11279463. Public record. Not legal advice.