Kensington House Co. v. Oram

293 A.D.2d 304, 739 N.Y.S.2d 572, 2002 N.Y. App. Div. LEXIS 3580

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 9, 2002
• Status: Published

Opinion

Order, Supreme Court, New York County (Walter Tolub, J.), entered on or about August 6, 2001, which, to the extent appealed from, denied the motion of plaintiff commercial landlord Kensington House Company (Kensington) for summary judgment insofar as such motion sought an award of additional obligations under the lease guaranteed by the defendants, including additional rent, late charges, water and sewer charges, costs, disbursements and attorney’s fees, unanimously reversed, on the law, without costs, Kensington’s motion for summary judgment granted in its entirety, and the matter remanded for a determination of plaintiff’s reasonable attorney’s fees in the underlying landlord/ tenant rent dispute.

Where, as here, a creditor seeks summary judgment upon a written guaranty, the creditor need prove no more than an absolute and unconditional guaranty, the underlying debt, and the guarantor’s failure to perform under the guarantee (City of New York v Clarose Cinema Corp., 256 AD2d 69, 71). These conditions of recovery have been satisfied by plaintiff. While the guaranty here at issue does not explicitly provide for costs and attorney’s fees incurred by Kensington in attempting to obtain payment of the underlying debt, the language of the guaranty, obligating the guarantors to the full performance of all monetary obligations under the lease, incorporates the explicit terms of the lease, which clearly provide for full payment of the additional rent, late charges, water and sewer charges, costs, disbursements and attorney’s fees sought by Kensington (see, BNY Fin. Corp. v Clare, 172 AD2d 203). Concur—Nardelli, J.P., Mazzarelli, Andrias, Rosenberger and Friedman, JJ.