Plaza Tower LLC v. Ruth's Hospitality Group, Inc.

126 A.D.3d 579, 3 N.Y.S.3d 584

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 2015
• Docket: 14570 100279/13
• Status: Published

Opinion

Order, Supreme Court, New York County (Peter H. Moulton, J.), entered September 15, 2014, which, to the extent appealed from as limited by the briefs, denied plaintiffs motion for summary judgment on its claim for air conditioning charges, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Defendant’s defense of overcharges is barred by its unconditional guaranty and waiver of defenses (see Citibank v Plapinger, 66 NY2d 90, 94-95 [1985]; LFR Collections LLC v Blan Law Offs., 117 AD3d 486 [1st Dept 2014]; Red Tulip, LLC v Neiva, 44 AD3d 204, 209-213 [1st Dept 2007], lv dismissed 10 NY3d 741 [2008]). Defendant’s reliance on Walcutt v Clevite Corp. (13 NY2d 48 [1963]), which recognized failure of consideration as a defense to enforcement of a guaranty, is misplaced; the guaranty in Walcutt was not unconditional and did not contain a waiver of defenses (see Harrison Ct. Assoc. v 220 Westchester Ave. Assoc., 203 AD2d 244 [2d Dept 1994]).

Concur — Mazzarelli, J.P., DeGrasse, Richter and Feinman, JJ.