ROSENBERG & ESTIS SECURES SUMMARY JUDGMENT FOR

State Supreme Court Ruling Provides for Three Times Arears, Retroactive Interest & Hearing to Determine Attorneys' Fees

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Rosenberg & Estis, P.C. has been granted summary judgment in a retail holdover proceeding, securing for its client triple rent, or $67,750, retroactive interest at 10 percent, and a hearing to determine attorneys' fees.

Bradley S. Silverbush, member, represented the plaintiff, Wassel, Corp., owner of 566 Amsterdam Avenue in Manhattan, before Justice David Benjamin Cohen in New York State Supreme Court, New York County.

The case focused on a restaurant tenant that held over in its space for six weeks beyond the expiration of the lease without the landlord's consent, and subsequently surrendered possession to the landlord without paying the last month's rent. The defendant, Schelzen Islamaj, was guarantor of the lease, and had signed a so-called "good guy" clause.

Under the terms of the parties' lease, in the event the tenant failed to vacate as required, both the tenant and its guarantor were liable for three times the rent last paid. The property owner retained Rosenberg & Estis, P.C. to commence an action against the guarantor for three times the amount of the unpaid rent, plus attorneys' fees. After filing suit, Rosenberg & Estis moved for summary judgment. The tenant opposed, claiming that the triple rent constituted an impermissible and unenforceable penalty.

Justice Cohen ruled that the defendant's arguments in opposition were without merit, and granted Rosenberg & Estis' arguments in toto, issuing a judgment for three times the amount of the arrears, plus interest retroactive to the date the arrears began to accrue. In addition, the judge set the matter down for hearing within 20 days to determine the amount of attorneys' fees to be awarded to the landlord.

"The court made it very clear that if you sign a "good guy" guaranty you better be a good guy -- otherwise the court is apt to show little sympathy," Silverbush said. "This ruling shows that owners can successfully pursue claims for liquidated damages even in a case of a brief holdover."