Opinion
2012-05-17
AMERICAN CYBERSYSTEMS, INC., Plaintiff–Respondent, v. GLOBAL RISK MANAGEMENT, LLC, et al., Defendants,David C. Zakheim, Defendant–Appellant.
Harry L. Klein, Brooklyn, for appellant. Nathaniel B. Smith, New York, for respondent.
Harry L. Klein, Brooklyn, for appellant. Nathaniel B. Smith, New York, for respondent.
Order and amended order, Supreme Court, New York County (Emily Jane Goodman, J.), entered October 20, 2010 and October 29, 2010, respectively, which, insofar as appealed from as limited by the briefs, denied defendant David C. Zakheim's cross motion for summary judgment dismissing the third cause of action, unanimously affirmed, without costs.
The IAS Court properly denied the motion to dismiss the third cause of action for rent and other charges allegedly owed under a document executed by defendant Zakheim, guaranteeing the payment of all charges owed by defendant Global Risk Management, LLC to the nonparty overtenant under a sublease. Subsequent to the execution of the guaranty, the overtenant assigned the lease to plaintiff. Given that the limited guaranty contained no express provision prohibiting assignment, and the sublease expressly permitted assignment, Zakheim failed to show that the cause of action against him does not fit within any cognizable legal theory ( see Cardarelli v. Scodek Constr. Corp., 304 A.D.2d 894, 895, 758 N.Y.S.2d 188 [2003]; WHCS Real Estate Ltd. Partnership v. 1610 O.C.R. Operating, 232 A.D.2d 548, 648 N.Y.S.2d 667 [1996], lv. dismissed 91 N.Y.2d 849, 667 N.Y.S.2d 684, 690 N.E.2d 493 [1997] ).