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Winner Communications, Inc. v. Bell

Supreme Court, New York County

August 7, 2013

WINNER COMMUNICATIONS, INC., Plaintiff,
v.
BARBARA BELL, Defendant. Index No. 150110/2012

Unpublished Opinion

Submission Date: May 1, 2013

For Plaintiff Roger J. Bernstein, Esq

For Defendants:. Sperber Denenberg & Kahan, By Jacqueline Handel-Harbour, Esq.

DECISION AND ORDER

ELLEN M. COIN JUDGE

Papers considered in review of this motion:

Papers Numbered
Notice of Motion with Attached Exhibits......................................................................................1
Affirmation in Opposition..............................................................................................................2
Affirmation in Reply......................................................................................................................3

Defendant moves pursuant to CPLR 2221(d) for leave to reargue the Court's decision and order of January 31, 2013, dismissing defendant's counterclaim for lost profits. This litigation concerns the rights and obligations of parties to a month-to-month commercial lease and personal guaranty, with plaintiff Winner Communications, Inc. (Winner), as landlord, and defendant Barbara Bell (Bell), as tenant. The relevant facts were set forth in the January 31, 2013 decision and order. Some facts bear repeating due to their particular relevance here.

On June 30, 2009, Winner entered into a three-month lease with Bell for the entire third floor of Winner's building. The term of the lease began on July 1, 2009, and ended on September 30, 2009. During the lease negotiations, Bell allegedly indicated that she intended to form a new corporation and needed the third-floor space for a physical therapy facility she wished to open. She maintains that because she had not yet incorporated a new corporate entity, she and Winner agreed to enter into a short-term lease in her name for the benefit of the soon-to-be incorporated entity. Three days after signing the lease agreement, on July 3, 2009, Bell incorporated Gotham Physical Therapy P.C. ("Gotham"). Bell became its president and principal shareholder.

Following expiration of the three-month lease, Bell continued occupying the third floor premises on a month-to-month basis, subject to the same terms and covenants as those contained in the expired lease.

The first page of the lease rider states that the tenant is Park South Physical Therapy Group P.C. (the previous tenant, of which Bell had been a shareholder), but Bell signed the rider as "Tenant, " with no indication that ...


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