• Failure to Attach Rule 19-a Statement Does Not Doom Motion: North River Restaurant LLC v Paratore et al.
  • June 6, 2011 | Author: Aaron E. Zerykier
  • Law Firm: Farrell Fritz, P.C. - Uniondale Office
  • In a March 28, 2011 decision by Justice Bransten the Court denied plaintiff’s motion to amend and partially granted defendants’ motion for summary judgment. The case arose from a leasing dispute over a restaurant. Defendant Paratore originally operated a restaurant in New York City. After his restaurant went out of business plaintiffs sought to open a new restaurant at the same location, with some of the same personnel, including Paratore. Paratore allegedly told plaintiff that he would either negotiate a lease for the restaurant on the same terms as his old lease or assign his old lease to plaintiff. That didn’t happen and plaintiff brought suit.

    Defendants moved for summary judgment and plaintiff moved to amend the complaint. The Court denied the motion to amend because: (i) it was untimely and (ii) it was not supported by any real evidence of merit (the supporting attorney’s affirmation was insufficient as was a client “affidavit” which was not notarized). The Court also granted defendants summary judgment on the fraudulent misrepresentation and negligent misrepresentation claims but allowed the common law fraud and unjust enrichment claims continue because there were issues of fact.

    Of note, the Court granted the summary judgment motion even though defendant did not to include in his submission a statement pursuant to Commercial Division Rule 19-a; finding “there is no requirement that the court must deny a motion for summary judgment to dismiss on this ground.”

    North River Restaurant LLC v Paratore et al, Sup Ct, New York County, March 28, 2011, Bransten, J, Index No. 110410/2008