Todd & levi, LLP, New York (Jill Levi of counsel), for Robert S. Wolf and Barry Zone, appellants.

Robinson Brog Leinwand Greene Genovese & Gluck P.C., New York (Nicholas Caputo of counsel), for David E. Danovitch, appellant.

Stempel Bennett Claman & Hochberg, P.C., New York (Dennis H. McCoobery of counsel), for respondent.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered June 29, 2016, which, to the extent appealed from, granted plaintiff's motion for partial summary judgment as to liability against defendants Robert S. Wolf, Barry Zone, and David E. Danovitch, and denied Danovitch's cross motion for summary judgment, unanimously modified, on the law, to grant plaintiff partial summary judgment as against Danovitch only to the extent that plaintiff incurred damages after February 15, 2012, and to deny partial summary judgment as against Zone, and otherwise affirmed, without costs.

Plaintiff, the successor in interest to the landlord, submitted prima facie evidence of Danovitch's liability for damages incurred after February 15, 2012 (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Specifically, it submitted the Lease, the Guaranty, the Third Amendment, and an amended Schedule 11 executed by Danovitch on February 15, 2012. It also submitted the affidavit of the general counsel of plaintiff's managing agent, who attested to the law firm's default on the Lease payments. While the Third Amendment contained ambiguous provisions regarding the "Guarantors" listed on "Schedule 11," Danovitch admitted in his answer and in a separate settlement agreement that he was a guarantor of the Lease (Impala Partners v Borom, 133 AD3d 498, 499 [1st Dept 2015]). In opposition to plaintiff's motion, Danovitch failed to raise a triable issue of fact. His argument regarding lack of consideration for the guaranty is unavailing, as the landlord continued to perform under the Lease each month by permitting the law firm to occupy the space, and by doing so provided consideration to Danovitch, a partner at the firm (see Sun Oil Co. v Heller, 248 NY 28, 32-33 [1928]; Columbus Trust Co. v Campolo, 110 AD2d 616, 617-618 [2d Dept 1985], affd 66 NY2d 701 [1985]). In addition, even if Danovitch's guaranty was provided for "past consideration" (i.e., to induce the landlord into extending the Lease), it should not be denied legal effect as a valid contract, as it was in writing and executed by Danovitch (see General Obligations Law § 5-1105; Samet v Binson, 122 AD3d 710, 711 [2d Dept 2014]). Danovitch's discovery request does not affect this appeal and primarily concerns his cross claim, which is not the subject of any of the underlying motions.

Plaintiff also submitted prima facie evidence in support of its claims against defendants Wolf and Zone, by providing the Lease, Guaranty, Assumption of Guaranty signed by Wolf, and the Third Amendment Schedule 11 executed by Wolf and Zone. In response, Zone raised triable [*2]issues of fact warranting denial of partial summary judgment against him. The Guaranty provides that when a guarantor resigns as a member/partner in the law firm, they "shall thereafter be released" from the Guaranty provided that (1) the Lease is not in default, (2) no more than one member/partner is released during any two year period, and (3) there are no fewer than four member/partners serving as guarantors. Both Zone and Wolf attest that Zone should have been immediately released in June 2011 when he resigned because the lease was not in default, and Danovitch was a guarantor at the time thereby leaving four member/partners as guarantors. Although Danovitch attested that he was not a guarantor at the time, and although Zone submitted an email that creates a question as to when the landlord became aware of Zone's resignation, these are issues to be decided by the trier of fact.

In contrast, Wolf has not raised a triable issue of fact. For Wolf to be released from the Guaranty, he had to obtain the landlord's explicit consent. There is no evidence or even allegation in this record that the landlord provided such consent. Nor has Wolf shown that further discovery was necessary to oppose plaintiff's motion (see CPLR 3212 [f]). Concur—Acosta, J.P., Mazzarelli, Manzanet-Daniels, Gische and Kahn, JJ. [Prior Case History: 2016 NY Slip Op 31233(U).]

Matter of Lamar A.

149 AD3d ?

Lamar A., Matter of

149 AD3d ?

2017 NY Slip Op 03064

Matter of Lamar A.149 AD3d ?

Lamar A., Matter of

[—– NYS3d —–]

[*3]

In the Matter of Lamar A., a Person Alleged to be a Juvenile Delinquent, Appellant. Tamara A. Steckler, The Legal Aid Society, New York (Raymond E. Rogers of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Susan Paulson of counsel), for presentment agency. HEADNOTES Crimes Identification of Defendant Photographic Array Crimes Sexual Abuse Sufficiency and Weight of Evidence Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about February 10, 2016, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of sexual abuse in the first and third degrees, forcible touching and attempted criminal obstruction of breathing or blood circulation, and placed him on probation for a period of 24 months, unanimously modified, on the law, to the extent of vacating the finding as to sexual abuse in the third degree and dismissing that count, and otherwise affirmed, without costs. Order of disposition, same date, court and Judge, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of sexual abuse in the third degree and forcible touching, and placed him on probation for a concurrent period of 24 months, unanimously affirmed, without costs. Regarding the incident resulting in a finding of, among other things, first-degree sexual abuse, the court properly denied appellant's motion to suppress the victim's identification of appellant in a photo array. The array was not tainted by the victim's identification, 10 days earlier, of the perpetrator in a surveillance videotape, which, as the victim confirmed, depicted the perpetrator following the victim into her apartment building immediately before the incident occurred in that building. In doing so, the victim "was simply ratifying the events as revealed in the videotape rather than selecting [appellant] as the perpetrator" (People v Lara, 130 AD3d 463, 464 [1st Dept 2015] [internal quotation marks omitted], lv denied 27 NY3d 1001 [2016]; see People v Gee, 99 NY2d 158 [2002]). Appellant's argument that the array was tainted in light of the 17-day gap between the incident and the victim's viewing of the video prior to the array is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find it unavailing. The record also shows that the photo array was not unduly suggestive. Appellant and the fillers appeared reasonably similar in the photos, and minor discrepancies involving facial hair and apparent age were limited to two fillers and did not create a substantial likelihood of unfairly singling out appellant (see People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833 [1990]). Although not dispositive (see People v Perkins, 28 NY3d 432 [2016]), it is notable that the victim's description of the perpetrator did not mention facial hair (see People v Brown, 147 AD3d 570 [1st Dept 2017]). However, as the presentment agency concedes, the count of third-degree sexual abuse pertaining to that incident should be dismissed as a lesser included offense. Regarding the other incident, the court's finding was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]). There is no basis for disturbing the court's credibility determinations. The evidence [*4]abundantly established that the 15-year-old appellant acted for the purpose of gratifying his sexual desire, and for the purpose of degrading or abusing the 30-year-old victim, in that he approached her as she was leaving an elevator and heading toward her apartment, and repeatedly slapped or grabbed her buttocks and breasts (see Matter of Narvanda S., 109 AD3d 710, 711 [1st Dept 2013]). Concur—Acosta, J.P., Mazzarelli, Manzanet-Daniels, Gische and Kahn, JJ.