Cavendish Realty L. L. C. v. Mistero

Appellate Division of the Supreme Court of New York

Cavendish Realty L. L. C. v. Mistero

268 A.D.2d 333, 701 N.Y.S.2d 415, 2000 N.Y. App. Div. LEXIS 498

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 20, 2000

StatusPublished

Cited by1 cases

This text of 268 A.D.2d 333 (Cavendish Realty L. L. C. v. Mistero) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cavendish Realty L. L. C. v. Mistero, 268 A.D.2d 333, 701 N.Y.S.2d 415, 2000 N.Y. App. Div. LEXIS 498 (N.Y. Ct. App. 2000).

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Opinion

—Judgment, Supreme Court, New York County (Barry Cozier, J.), entered November 10, 1998, granting plaintiffs motion for summary judgment in the principal amount of $237,738.20, unanimously reversed, on the law, without costs, the motion denied, and the judgment vacated.

Plaintiffs assignor leased property to Misty’s Restaurant in 1987. Defendants individually guaranteed the tenant’s performance under the lease, and expressly waived notice of the tenant’s nonpayment, nonperformance, proof or notice of demand to trigger the guaranty. In 1997, Misty’s defaulted in payment of rent and consented to judgment in Nassau County District Court, in the amount of $237,738.20. However, the parties stipulated that the “aforesaid money judgment shall not be executed against any person, property or entity other than the named [tenant].” One month later, plaintiff brought this action to recover the amount of the judgment under the guaranty. The IAS Court viewed the guaranty as absolute and unconditional, and rejected defendants’ argument that the stipulation in any way limited enforcement of the judgment.

Without passing upon the merits of plaintiffs ultimate claim against the guarantors, we hold that the stipulation in the consent judgment precluded summary recovery on that judgment against any party but the named tenant. Defendants are thus entitled to contest liability in a plenary action on the guaranty, particularly with reference to the extent of Misty’s default in performance of the lease obligations and the damages actually incurred. Concur—Sullivan, J. P., Williams, Wallach, Lerner and Saxe, JJ.

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—Judgment, Supreme Court, New York County (Barry Cozier, J.), entered November 10, 1998, granting plaintiffs motion for summary judgment in the principal amount of $237,738.20, unanimously reversed, on the law, without costs, the motion denied, and the judgment vacated.

Plaintiffs assignor leased property to Misty’s Restaurant in 1987. Defendants individually guaranteed the tenant’s performance under the lease, and expressly waived notice of the tenant’s nonpayment, nonperformance, proof or notice of demand to trigger the guaranty. In 1997, Misty’s defaulted in payment of rent and consented to judgment in Nassau County District Court, in the amount of $237,738.20. However, the parties stipulated that the “aforesaid money judgment shall not be executed against any person, property or entity other than the named [tenant].” One month later, plaintiff brought this action to recover the amount of the judgment under the guaranty. The IAS Court viewed the guaranty as absolute and unconditional, and rejected defendants’ argument that the stipulation in any way limited enforcement of the judgment.

Without passing upon the merits of plaintiffs ultimate claim against the guarantors, we hold that the stipulation in the consent judgment precluded summary recovery on that judgment against any party but the named tenant. Defendants are thus entitled to contest liability in a plenary action on the guaranty, particularly with reference to the extent of Misty’s default in performance of the lease obligations and the damages actually incurred. Concur—Sullivan, J. P., Williams, Wallach, Lerner and Saxe, JJ.

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Bluebook (online)

268 A.D.2d 333, 701 N.Y.S.2d 415, 2000 N.Y. App. Div. LEXIS 498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cavendish-realty-l-l-c-v-mistero-nyappdiv-2000.

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