| RCSH Operations, LLC v Manhattan Sports Rests. of Am. LLC |
| 2016 NY Slip Op 00877 |
| Decided on February 9, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on February 9, 2016
Mazzarelli, J.P., Moskowitz, Richter, Gische, JJ.
151 151125/13
v
Manhattan Sports Restaurants of America LLC, et al., Defendants-Respondents.
Herrick, Feinstein LLP, New York (John P. Sheridan of counsel), for appellant.
Jaroslawicz & Jaros PLLC, New York (David Jaroslawicz of counsel), for respondents.
Order, Supreme Court, New York County (Peter H. Moulton, J.), entered September 11, 2014, which, to the extent appealed from, denied plaintiff's motion for summary judgment, unanimously affirmed, without costs.
Plaintiff failed to make a prima facie showing of its entitlement to recover under the parties' guaranty, as it did not submit sufficient evidence showing the underlying debt (City of N.Y. v Clarose Cinema Corp. , 256 AD2d 69, 71 [1st Dept 1998]). The affidavit from its lawyer is silent as to who read the meters, which plaintiff was required to do under the parties' sublease.
Even if plaintiff had met its burden, in opposition, defendants raised material issues of fact. Defendants submitted four affidavits, including the affidavit submitted by plaintiff's own expert in a related case, showing that the bills plaintiff sent to defendants appear inaccurate on their face. There is at least a question of fact as to whether plaintiff read the meters incorrectly or even at all, or whether the invoices were inaccurate for some other reason.
We have considered plaintiff's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 9, 2016
CLERK