Absolute Financial Services, LLC v. 535 Broadhollow Realty LLC

304 A.D.2d 682, 757 N.Y.S.2d 757, 2003 N.Y. App. Div. LEXIS 4349

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 21, 2003
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendant Ted Doukas appeals from an order of the Supreme Court, Suffolk County (Buirke, J.), dated May 28, 2002, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is affirmed, with costs.

On the parties’ prior appeal, this Court stated that “[t]he obligor under a contract cannot assign obligations under the contract without the consent of the obligee” (Absolute Fin. Servs. v 535 Broadhollow Realty, 292 AD2d 327, 328 [2002]). Contrary to the appellant’s contentions, he failed to demonstrate, prima facie, that the plaintiff consented to substitute new guarantors in his stead. The 1998 assumption agreements demonstrate that the plaintiff consented to the assignment of the two 1995 equipment leases in issue, and the assumption agreements suggest that the plaintiff may have accepted the new 1998 guarantees as additional security for the leases, which were by then in default. However, the appellant failed to offer any documentary evidence substantiating his claims that the new guarantees were intended to supplant his original 1995 guarantees of the leases, and that the plaintiff thus consented to release him from liability thereon. As such, the Supreme Court correctly denied the appellant’s motion for summary judgment.

The appellant’s remaining contentions are without merit. S. Miller, J.P., Goldstein, McGinity and Mastro, JJ., concur.