G3-Purves Street, LLC v. Thomson Purves, LLC

101 A.D.3d 37, 953 N.Y.2d 109

This text of 101 A.D.3d 37 (G3-Purves Street, LLC v. Thomson Purves, LLC) 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
G3-Purves Street, LLC v. Thomson Purves, LLC, 101 A.D.3d 37, 953 N.Y.2d 109 (N.Y. Ct. App. 2012).

Opinion

OPINION OF THE COURT

Florio, J.P.

On these appeals, we are called upon to determine whether a provision of the guaranty at issue, which allowed for full recourse liability against the guarantors upon the happening of a “springing recourse event” under the attendant loan agreement, is, in effect, a liquidated damages provision which imposes an unenforceable penalty. Viewing the unambiguous terms of the loan and guaranty under existing jurisprudence, we hold that the provision merely affixes liability, and is not, in effect, a liquidated damages provision that imposes an unenforceable penalty.

The plaintiff, G3-Purves Street, LLC (hereinafter the lender), financed the development of certain real property by the defendant, Thomson Purves, LLC (hereinafter the borrower), via a mortgage-backed loan. The loan was supported by a Guaranty of Recourse Obligations (hereinafter the guaranty) entered into between the defendants Baruch Singer and David Weiss (hereinafter the guarantors) and the lender. Pursuant to the loan agreement, the borrower was required to, among other things, avoid allowing liens or other encumbrances to be placed upon the mortgaged premises by paying real estate taxes and other charges as they became due. The loan agreement provided that, under most circumstances, the loan was nonrecourse, but the loan agreement included “carve-out” clauses which provided for full recourse against the borrower based upon, among other things, the occurrence of certain “springing recourse events.” Specifically, the loan agreement stated:

“Lender’s agreement not to pursue personal liability of Borrower as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Debt shall be fully recourse to [39]*39Borrower in the event that one or more of the following occurs (each, a “Springing Recourse Event”): . . . (iii) the occurrence of any condition or event described in . . . Section 8.1 (f) hereof, or (iv) Borrower creates, incurs, assumes, permits or suffers to exist any Lien on all or any portion of the Property ... or incurs any indebtedness other than the Permitted Indebtedness.”

Section 8.1 (f) of the loan agreement stated: “8.1 Events of Default. An ‘Event of Default’ shall exist with respect to the Loan if any of the following shall occur: ...(f) Borrower . . . or Guarantor shall make an assignment for the benefit of creditors, or shall generally not be paying . . . debts as they become due.”

The guaranty, which was executed contemporaneously with the loan agreement, stated that the guarantors agreed “absolutely and unconditionally” to pay certain “Joint and Several Obligations.” These obligations included, “(ii) from and after the date that any Springing Recourse Event occurs, payment of all the Debt as and when the same is due in accordance with the Loan Documents (and whether accrued prior to, on or after such date).”

It is undisputed that approximately 16 months after the loan agreement and guaranty were entered into, the lender accelerated the loan’s maturity date when the borrower, in violation of the loan agreement, failed to pay certain real estate taxes assessed on the mortgaged premises. The lender thereafter commenced this action, inter alia, to foreclose the mortgage and to obtain a deficiency judgment against the guarantors, alleging, among other things, that “springing recourse events” had occurred, including the filing of certain liens against the property. Notably, no party contests the lender’s right to a judgment of foreclosure and sale of the property; the issue on this appeal is whether the lender is entitled, pursuant to the guaranty, to recover from the guarantors the total amount due on the mortgage.

The lender moved for summary judgment on the complaint, and the guarantors cross moved for summary judgment dismissing the complaint insofar as asserted against them. In opposition to the lender’s motion and in support of their cross motion, the guarantors contended, in pertinent part, that the parties to the guaranty only intended to impose full liability for the entire debt upon the guarantors if they or the borrower committed an [40]*40affirmative act that interfered with the lender’s ability to recover the property. They argued that the provision of the guaranty that imposed full liability on them for the entire debt upon the occurrence of a springing recourse event was, in effect, a liquidated damages provision that imposed an unenforceable penalty, as the remaining balance on the loan was grossly disproportionate to the amounts of the liens that had been filed against the subject property.

The Supreme Court granted the lender’s motion and denied the guarantors’ cross motion, finding that the subject carve-out clauses of the loan agreement were enforceable. As to the main issue on appeal, the Supreme Court concluded that the guaranty allowed for full recourse liability against the guarantors if the borrower committed an act delineated in the “springing recourse event” portions of the loan agreement, and that the subject provision of the guaranty was not, in effect, a liquidated damages provision that imposed an unenforceable penalty. We agree.

It is well settled that a “written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Greenfield v Philles Records, 98 NY2d 562, 569 [2002]; see Etzion v Etzion, 84 AD3d 1015, 1016 [2011]). Where the terms of an agreement are unambiguous, interpretation is a question of law for the court (see Aivaliotis v Continental Broker-Dealer Corp., 30 AD3d 446, 447 [2006]). “ ‘[W]hen interpreting a contract, the court should arrive at a construction which will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized’ ” (Zuchowski v Zuchowski, 85 AD3d 777, 778 [2011], quoting Herzfeld v Herzfeld, 50 AD3d 851, 851 [2008] [some internal quotation marks omitted]).

Furthermore, “[a] guaranty is a contract, and in interpreting it we look first to the words the parties used” (Louis Dreyfus Energy Corp. v MG Ref. & Mktg., Inc., 2 NY3d 495, 500 [2004]). A guaranty must be read in the context of the loan agreement, which was executed contemporaneously (see Greenwich Capital Fin. Prods., Inc. v Negrin, 74 AD3d 413, 415 [2010]). “A guaranty must be construed ‘in the strictest manner’ ” (Arlona Ltd. Partnership v 8th of Jan. Corp., 50 AD3d 933, 933 [2008], quoting White Rose Food v Saleh, 99 NY2d 589, 591 [2003]), and a guarantor should be bound to the express terms of the written guaranty (see 665-75 Eleventh Ave. Realty Corp. v Schlanger, 265 AD2d 270, 271 [1999]; Walker v Roth, 90 AD2d 847 [1982]).

[41]*41Generally, a nonrecourse loan agreement containing carve-out provisions similar to the ones contained in the subject loan agreement is valid and enforceable (see First Nationwide Bank v Brookhaven Realty Assoc., 223 AD2d 618 [1996]). Here, it is undisputed that the loan agreement entered into is a nonrecourse loan which largely exempts the borrower and guarantors from personal liability for the remaining debt in the event of a default, and leaves the lender with the sole recourse of repossession of the property which served as security under the loan agreement.

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Bluebook (online)
101 A.D.3d 37, 953 N.Y.2d 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/g3-purves-street-llc-v-thomson-purves-llc-nyappdiv-2012.