The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55 were read on this motion to/for PARTIAL SUMMARY JUDGMENT. DECISION ORDER ON MOTION Upon the foregoing documents and for the reasons set forth hereinbelow, (1) the instant joint cross-motion, pursuant to CPLR 3211(a)(8), by defendants, Myoung Joo Yi and Houng Chul Yi, to dismiss the instant complaint, is denied; and (2) the instant motion, pursuant to CPLR 3212, by plaintiff, 159 West 23rd LLC, for partial summary judgment, on its first cause of action, for breach of contract, against defendants, jointly and severally, in the amount of $197,279.00. Background Briefly stated, in the instant action, plaintiff, 159 West 23rd LLC, alleges that defendants, Myoung Joo Yi and Houng Chul Yi, essentially breached their obligations pursuant to November 8 and 9, 2017 guaranties of a lease for the subject premises for their business, Spa Ciel de NY Corp. (“the Tenant”), by failing to pay rent, failing to pay use and occupancy, and damaging the subject premises. (NYSCEF Doc. 1.) On February 6, 2020, the Appellate Term, First Department granted plaintiff summary judgment of possession with a warrant to issue forthwith; dismissed the Tenant’s Affirmative Defenses; and remanded the matter back to Civil Court for a hearing to determine the amount of rent/use and occupancy and attorney’s fees that the Tenant owed to plaintiff (NYSCEF Doc. 1). That matter was a summary proceeding against the Tenant that addressed possession; the instant matter is an action against individual defendants/guarantors, for monetary damages. Thus, the former does not preclude the latter. Plaintiff now moves, pursuant to CPLR 3212(e), for partial summary judgment, on its first cause of action, for breach of contract, against both defendants, in the amount of $197,279.00 (NYSCEF Doc. 4). Defendants now jointly cross-move, pursuant to CPLR 3211(a)(8), to dismiss the instant complaint for lack of personal jurisdiction (NYSCEF Doc. 30). Discussion Defendants’ Instant CPLR 3211(a)(8) Cross-Motion to Dismiss This Court finds that plaintiff has established personal jurisdiction over defendants. The alleged misstatement of the name of the natural person upon whom plaintiff served process as defendant Myoung Joo Yi rather than non-party Mi Young Hahn (defendants’ housekeeper) arose from an error by Ms. Hahn, not by plaintiff and was not prejudicial. Furthermore, plaintiff has demonstrated that, pursuant to CPLR 308(2), it also served process upon defendant Houng Chul Yi via mail at the address that defendants share (NYSCEF Doc. 2). This Court has considered defendants’ other arguments in support of its cross-motion and finds them to be unavailing and/or non-dispositive. Therefore, this Court will deny defendants’ joint cross-motion, pursuant to CPLR 3211(a)(8), to dismiss plaintiff’s instant complaint for lack of personal jurisdiction. Plaintiff’s Instant CPLR 3212 Motion for Summary Judgment To prevail on summary judgment, the moving party must tender sufficient evidence to demonstrate the absence of any material issue of fact, and entitlement to judgment in its favor as a matter of law. See Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Ayotte v. Gervasio, 81 NY2d 1062 (1993). Once the movant’s initial burden has been met, the burden then shifts to the party opposing the motion to submit evidentiary proof sufficient to create material issues of fact requiring a trial; mere conclusions and unsubstantiated allegations are insufficient. See Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); see generally American Sav. Bank v. Imperato, 159 AD2d 444, 444 (1st Dep’t 1990) (“The presentation of a shadowy semblance of an issue is insufficient to defeat summary judgment”). The Court finds that plaintiff has established that there are no material issue(s) of fact in the instant matter, and that plaintiff is entitled to judgment as a matter of law. As plaintiff asserts, defendants have waived defenses as to the Tenant’s security deposit and “rent waiver clawback,” inter alia. Defendants have failed to meet their burden to submit evidentiary proof establishing a material issue of fact. This Court has considered defendants’ other arguments and finds them to be unavailing and/or non-dispositive. Therefore, this Court will grant plaintiff’s motion, pursuant to CPLR 3212, for partial summary judgment, on its first cause of action, for breach of contract, against defendants, Myoung Joo Yi and Houng Chul Yi, jointly and severally, in the amount of $197,279.00. Conclusion The Court hereby severs plaintiff’s first cause of action from plaintiff’s second through fourth causes of action, which plaintiff may pursue in due course. Thus, for the reasons stated hereinabove, (1) the instant joint cross-motion, pursuant to CPLR 3211(a)(8), by defendants, Myoung Joo Yi and Houng Chul Yi, to dismiss the instant complaint is hereby denied; and (2) the instant motion, pursuant to CPLR 3212, by plaintiff, 159 West 23rd LLC, for partial summary judgment on its first cause of action, for breach of contract, against defendants, jointly and severally, in the amount of $197,279.00, is hereby granted. Accordingly, the Clerk is hereby directed to enter judgment in favor of plaintiff and against defendants, jointly and severally, on plaintiff’s first cause of action, in the amount of $197,279.00. Dated: June 28, 2021
