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Atlantic Properties LLC v. DiFiore

New York City Court, City of Rochester

June 24, 2013

ATLANTIC PROPERTIES LLC, Plaintiff,
v.
Judy DiFIORE, a/k/a Judith DiFiore, Defendant.

[968 N.Y.S.2d 848] Andrew Dick, Esq., for plaintiff.

No appearance by defendant.

ELLEN YACKNIN, J.

Page 914

Plaintiff Atlantic Properties LLC has sued defendant Judith DiFiore to recover the expenses associated with alleged damages to an apartment formerly rented by Andrew DiFiore, defendant's son. Plaintiff contends that defendant, who was not a tenant in the apartment, is nevertheless financially responsible for her son's alleged damages because she signed the original lease as a guarantor. Defendant denies financial liability for any money damages that her son may owe to plaintiff.

Plaintiff has moved for summary judgment against defendant. Defendant has failed to respond to plaintiff's motion. Regardless of defendant's failure to respond, plaintiff is entitled to summary judgment against defendant only if the factual allegations demonstrate its entitlement to a judgment as a matter of law. See Liberty Taxi Management, Inc. v. Gincherman, 32 A.D.3d 276, 277 n. 1, 820 N.Y.S.2d 49 (1st Dep't 2006); Cugini v. Sys. Lbr. Co., 111 A.D.2d 114, 115, 489 N.Y.S.2d 492 (1st Dep't), app. dismissed 65 N.Y.2d 1053, 494 N.Y.S.2d 1061, 484 N.E.2d 1059 (1985) (" A movant's failure to sufficiently demonstrate its right to summary judgment requires a denial of the motion regardless of the sufficiency, or lack thereof, of the opposing papers." ).

Page 915

FACTUAL BACKGROUND

On June 27, 2003, Andrew DiFiore signed a Lease Agreement to rent an apartment at 604 Farmstead Court in Churchville, New York owned by plaintiff Atlantic Properties LLC [Atlantic]. Under the lease, Mr. DiFiore's monthly rent was $755.00. The June 27, 2003 Lease Agreement expired on September 30, 2004.

At her son's request, defendant Judith DiFiore signed the June 27, 2003 lease as a guarantor. The " Guaranty of Payment" provisions that Ms. DiFiore signed included the following:

2. GUARANTY

The following is my Guaranty:

I guaranty the full performance of the Lease by the Tenant. This Guarantee is absolute and without any conditions. It includes, but is not limited to, the payment of rent, added rent and other damages or charges under the lease.

3. CHANGES IN LEASE HAVE NO EFFECT

This guaranty will not be affected by any change in the Lease whatsoever. This includes, but is not limited to, any extension of time or renewals for which I remain fully responsible for Tenant's payment and performance until Tenant has vacated the ...


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