The following e-filed documents for Motion Sequences 01 and 02, listed by NYSCEF document numbers “6,” “7,” “8,” “24,” “25,” “28,” “29,” “30,” “39,” “40,” “41,” “42,” and “43″ attachments and exhibits thereto have been read on this motion: Motion Sequence 01 Notice of Motion and Affidavits X Memorandum of Law in Support X Affirmation in Opposition X Reply Affirmation X Motion Sequence 02 Notice of Cross-Motion and Affidavits X Affirmation in Opposition X Reply Affirmation X The plaintiff moves this Court for an order granting the plaintiff summary judgment in its favor against the defendants pursuant to CPLR §3212 in the amount of $66,300.00 and, if summary judgment is determined to be warranted to part but not all of the plaintiff’s claims, granting plaintiff partial summary judgment to the extent warranted with interest that such claims granted summary judgment be severed with the plaintiff to immediately execute the judgment, and an award of attorneys’ fees, costs and disbursements incurred in the prosecution of the action and collection of the amount owed. The defendants oppose the motion. The plaintiff submits a reply. The defendants cross-move for an order pursuant to CPLR §3212 granting them partial summary judgment dismissing the plaintiff’s complaint as to defendant Said Habibian (“Habibian”). The plaintiff opposes the cross-motion. The defendants submit a reply. The plaintiff initiated this proceeding by way of Summons and Verified Complaint alleging two causes of action sounding in breach of contract and account stated. The plaintiff contends that it entered into a written lease agreement with defendant Shoes Etc., Inc a/k/a Shoes Etc. (“Shoes Etc.”) on or about June 9, 1995 (“Lease Agreement”) for the use of commercial premises located at 277 South Broadway, Hicksville, commonly known as “Delco Plaza Shopping Center.” The plaintiff asserts that the Lease Agreement was personally guaranteed by Habibian. It is alleged that the Lease Agreement was renewed, modified and amended from time to time, with the last agreement being made on or about June 30, 2014, which extended the term of the lease for one year and modified the rental obligations to $3,900.00 per month. On or about July 1, 2015, the Lease Agreement expired, and the defendants remained in possession of the subject premises as a month-to-month tenant at the same time rental rate as provided in the June 30, 2014 renewal, to wit, $3,900.00 per month. According to the Verified Complaint, the defendants paid the rent through and until January 12, 2020. As of February 1, 2020, the defendants allegedly stopped paying the plaintiff rent and, as so, the plaintiff maintains that the defendants breached the Lease Agreement. In support of the motion, the plaintiff submits an affidavit by Richard E. Rush (“Rush”), General Partner for the plaintiff and owner of Delco Plaza Shopping Center. Rush’s affidavit provides that the plaintiff entered into the Lease Agreement with Shoes Etc. and Habibian, both of which are listed as tenants therein. Rush states that after the execution of the Lease Agreement, the defendants came into possession of the subject premises. Rush attests that the parties renewed and modified terms of the Lease Agreement periodically with the last renewal having been executed on June 30, 2014. The Lease Agreement expired by its terms and the defendants became month-to-month tenants on July 1, 2015, whereby the defendants continued paying $3,900.00 through January 2020 and stopped paying rent as of February 1, 2020, despite remaining in possession of the subject premises. The plaintiff sent the defendants an “open items statement” that showed the amount of rent the defendants owed to the plaintiff on a monthly basis. In addition, the plaintiff’s counsel sent the defendants a letter on May 6, 2021, demanding payment of the unpaid rent, which then totaled $62,400.00. Based on Rush’s affidavit, the plaintiff established prima facie entitlement to summary judgment in that (1) the Lease Agreement demonstrates the existence of a contract; (2) plaintiff performed under the Lease Agreement by providing the subject premises to the defendants for occupancy; (3) the open item statements and the letter by plaintiff’s counsel demonstrate defendants’ breach of the Lease Agreement by failing to pay, and plaintiff’s demand thereof; and (4) the unpaid rent demonstrates the resulting damages. (Trinity Ctr. LLC v. Stern & Montana, LLP, 2017 NY Slip Op 32565[U], *3). As an initial matter, the defendants “do not dispute that rent is due and owing” by Shoes Etc. and submit no arguments in opposition to the plaintiff’s arguments regarding Shoes Etc.’s breach of the Lease Agreement. “Where a party fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movant’s papers may be deemed admitted as there is, in effect, a concession that no question of fact exists.” (114 Woodbury Realty, LLC v. 10 Bethpage Rd., LLC, 178 AD3d 757, 761-762). Accordingly, the defendants fail to raise a material issue with respect to Shoes Etc. As to Habibian, the defendants argue in opposition to the plaintiff’s motion and in support of their cross motion that the June 30, 2014 renewal establishes Habibian is not personally liable for the unpaid rent under the terms of the Lease Agreement because Habibian modified his signature block to reflect that he was signing in his capacity as Shoes Etc.’s president rather than in his personal capacity. The defendants claim that the plaintiff acknowledged Habibian’s modification by countersigning the June 30, 2014 renewal and returning it to the defendants. It is well settled precedent that an “agent executing a contract on behalf of a disclosed principal is not liable for a breach of the contract unless it clearly appears that he or she intended to bind himself or herself personally.” (Y.B. Assoc. Group, LLC v. Rubin, 216 AD3d 851, 853). “[T]here [must be] clear and explicit evidence of the agent’s intention to substitute or superadd his [or her] personal liability for, or to, that of his [or her] principal.” (Id.). As such, to impose personal liability upon a party who simply signs as agent requires clear and unequivocal evidence in the writing itself demonstrating that the agent intended to assume such a liability. (Id.). Here, Exhibit H to the Lease Agreement is a “Guaranty of Lease” signed by Habibian pursuant to which Habibian agreed to “unconditionally and absolutely guarantee” the terms and obligations set forth in the Lease Agreement. The Lease Agreement and Guaranty of Lease annexed thereto establishes clear and explicit evidence that Habibian intended to substitute his personal liability for Shoes Etc. (Id.). The defendants’ argument that Habibian intended to relieve himself of personal liability by adding the title “President” to his signature block is unavailing. A review of the various renewals to the Lease Agreement shows that Habibian either added to or modified his signature block to reflect his title of “President.” Thus, Habibian adding his corporate title while signing the June 30, 2014, renewal does not refute the Guaranty of Lease which identifies him as an individual guarantor as it was his custom and practice to do so on prior renewals. Considering Habibian has not established his freedom from personal liability coupled with the defendants’ concession that rent is due and owing, the defendants fail to raise a material fact requiring trial with respect to the plaintiff’s cause of action sounding in breach of contract. With respect to the plaintiff’s cause of action sounding in account stated, it is well settled that “[a]n account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance. Although an account stated may be based on an express agreement between the parties as to the amount due, an agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time or makes partial payment on the account.” (Givens v. De Moya, 193 A.D.3d 691, 693). “In order to establish a prima facie case to recover on an account stated, the plaintiff must establish that it submitted invoices and that the defendant received and retained the invoices without objection for an unreasonable period of time.” (Alliance Natl. Ins. Co. v. Hagler, 219 AD3d 1393, 1394-1395). The plaintiff established its prima facie entitlement to summary judgment through Rush’s affidavit which provides that the Lease Agreement expired by its terms, the defendants became month-to-month tenants after the expiration of the Lease Agreement and paid rent through January 2020. Rush states that the plaintiff sent the defendant monthly open item statements showing the amounts owed to the plaintiff after the plaintiff ceased paying rent in February 2020 and the defendants never objected to or dispute the statements or amounts owed. (Id.). The defendants argue in opposition that there is not an account stated as to Habibian because the monthly open item statements were addressed only to Shoes Etc. However, as argued by the plaintiff, Habibian testified that he received the monthly open item statements and the amount set forth in each statement was correct. Since Habibian acknowledged that he received the open item statements and does not dispute the amounts owed, the defendants fail to raise a material issue of fact requiring trial on the plaintiff’s claim for account stated. Considering the plaintiff established prima facie entitlement to summary judgment as to its causes of action for breach of contract and account stated and the defendants fail to raise a material issue of fact requiring a trial, a finding of summary judgment in favor of the plaintiff is warranted under these circumstances and the defendants’ cross-motion should be denied on the same grounds. The Court has considered the remaining contentions of the parties and finds that they do not require discussion or alter the determination herein. Based upon the foregoing, it is hereby ORDERED, that the branch of the plaintiff’s motion (Motion Sequence 01) for an order granting summary judgment against the defendants pursuant to CPLR §3212 in the amount of $66,300.00 for rent due and owing to the plaintiff is granted, and it is further ORDERED, that with respect to the branch of the plaintiff’s motion for an award of attorney’s fees, costs and disbursements incurred in the prosecution of the instant action and collection of the amount owed, all parties shall appear for an in-person hearing on February 8, 2024 at 11:00 AM to determine the amounts due to the plaintiff, if any, and it is further ORDERED, that the defendants’ cross-motion (Motion Sequence 02) for an order granting them partial summary judgment dismissing the plaintiff’s complaint as to defendant Said Habibian is denied. This constitutes the decision and order of the Court. Dated: January 12, 2024
