Gansevoort 69 Realty LLC v. Laba

130 A.D.3d 521, 12 N.Y.S.3d 543

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 14, 2015
• Docket: 15196 651010/13
• Status: Published

Opinion

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered February 27, 2014, which, to the extent appealed from as limited by the briefs, granted plaintiff Gansevoort 69 Realty LLC’s motion for summary judgment, and denied defendant Laba’s cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

“On a motion for summary judgment to enforce a written guaranty, all that the creditor need prove is an absolute and unconditional guaranty, the underlying debt, and the guarantor’s failure to perform under the guaranty” (City of New York v Clarose Cinema Corp., 256 AD2d 69, 71 [1st Dept 1998]). Plaintiff creditor met its initial burden on the motion with evidence satisfying each of these requisites of its claim.

In opposition, Laba failed to create an issue of fact. Laba claims that the parties entered into an oral agreement to release Laba from any claims arising from the guaranty, provided Laba introduced plaintiff to a buyer that purchased the subject building. Laba’s reliance on this purported oral agreement fails in light of the parties’ agreement that all modifications to the guaranty were to be in writing, and Laba’s failure to point to any performance of the purported oral agreement that is “unequivocally referable to the oral modification” (Rose v Spa Realty Assoc., 42 NY2d 338, 343-344 [1977]).

We have considered defendant’s remaining contentions, and find them unavailing. Concur — Tom, J.P., Friedman, DeGrasse, Richter and Kapnick, JJ.