Shalik v. Stein

116 A.D.3d 604, 983 N.Y.S.2d 794

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 22, 2014
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Anil C. Singh, J.), entered November 27, 2012, awarding plaintiff the aggregate amount of $333,591.74, pursuant to an order, same court and Justice, entered October 9, 2012, which granted plaintiffs motion for summary judgment, unanimously affirmed, with costs. Appeal from aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The parties’ indemnification and contribution agreement was unambiguous in requiring that defendant pay 50% of any amount paid by plaintiff on the debt they had co-guaranteed. This was particularly true in light of the language in the precatory clauses (see Grand Manor Health Related Facility, Inc. v Hamilton Equities Inc., 65 AD3d 445, 447 [1st Dept 2009]). Furthermore, defendant’s reading of the agreement, that indemnification is only triggered upon payment of the entire loan amount, would impose only those obligations upon defendant that the law automatically imposes on a co-guarantor (see Panish v Rudolph, 282 AD2d 233 [1st Dept 2001]; see also Beltrone v General Schuyler & Co., 229 AD2d 857 [3d Dept 1996]), and would render the agreement superfluous. Given the lack of ambiguity in the agreement, and the other undisputed facts, it was not error for the court to grant summary judgment prior to discovery. Concur — Tom, J.E, Renwick, Richter, Feinman and Gische, JJ.