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23 East 39th Street Developer, LLC,
Counterclaim-Plaintiff,
-against-
Allen Gutterman,
Counterclaim-Defendant.
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It is further
ORDERED that, within 30 days of entry of this order, plaintiff shall serve a copy of
this order with notice of entry upon: (1) all parties; (2) the County Clerk and the Clerk of the
Trial Support Office, who shall mark their records to reflect the amendment to the caption; and
(3) the Clerk of the Judicial Support Office to arrange a calendar date for the reference to a
Special Referee.
Dated:June 21, 2011
DORIS LING-COHAN, J.S.C.
Footnotes
Footnote 1: According to Alan Gutterman,
plaintiff's president, despite being entitled to the $400,000 security deposit due to defendant's
alleged conversion, "in an effort to expedite this lawsuit, [he is] willing to have the taxes, rent
and insurance payments due under the Lease offset against the security" [¶17, Gutterman
Affidavit], and thus, the complaint seeks $115,044.19, rather than $400,000.
Footnote 2: Although the section in
counsel's affirmation is entitled "The Corp. Did Not Pay Any Security Deposit," the individual
statements therein only address that plaintiff did not give a security deposit to the individual
defendants. See Guy Affirmation in Opp ¶¶ 26-27.
Footnote 3: As previously noted, plaintiff
concedes that when it vacated the subject premises, rent and other charges were owed and
therefore in its complaint plaintiff sought damages in the amount of $115,944.19, rather than the
full amount of the security deposit, $400,000.
Footnote 4: The amount to be determined by
a Special Referee, shall reflect plaintiff's admission of owing defendant $284,055.81 for rent and