Summary
finding that guarantors were not released from their obligations by tenant's assignment of lease to a third party, as guaranty expressly provided that it would include and extend to any modifications of the underlying agreements
Summary of this case from Davis v. JT BuildingOpinion
November 15, 1995
Appeal from the Supreme Court, Oneida County, Shaheen, J.
Present — Denman, P.J., Green, Fallon and Boehm, JJ.
Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted plaintiff partial summary judgment dismissing defendants' affirmative defenses and counterclaims. Because plaintiff withdrew his proceeding for eviction before the Carbone defendants vacated the premises, the court properly dismissed the defense alleging that plaintiff elected his remedy by terminating the landlord-tenant relationship (see, 2 Rasch, New York Landlord and Tenant — Summary Proceedings § 23:56, at 221 [3d ed], citing Swerdlow v Harrow, 213 App. Div. 521; Baldwin v Thibaudeau, 17 N.Y.S 532). The Purchase and Sale Agreement expressly provides that the Country defendants were entering into the agreement based upon matters revealed in their independent investigation and that plaintiff "does not make any representation or warranty as to the accuracy of any information." Thus, the affirmative defenses alleging fraudulent inducement also were properly dismissed (see, Clanton v Vagianelis, 187 A.D.2d 45, 47-48).
Summary judgment was properly granted against the Country defendants on the issue of liability for breach of the Lease and Closing Memorandum. Plaintiff did not release the Country defendants from their obligations under those agreements and, therefore, the Country defendants remain liable to perform those obligations following the assignment to the Carbone defendants (see, Mandel v Fischer, 205 A.D.2d 375, 376; Leeirv Corp. v S E Realty Co., 178 A.D.2d 403; 185 Madison Assocs. v Ryan, 174 A.D.2d 461). The Country defendants also remain liable to make payments under the Consulting Services Agreement and Restrictive Covenant Agreement notwithstanding the assignment (see, Castiglia v Franchise Realty Interstate Corp., 107 A.D.2d 1025). Evidence that plaintiff is a shareholder in a Manlius automobile dealership that has customers residing in the Utica area is not sufficient to raise a question of fact whether plaintiff breached the Restrictive Covenant Agreement. The court properly determined that the individual guarantors were not released from their obligations because the Guarantee expressly provides that it shall include and extend to any modifications of the underlying agreements (see, Morgan v Smith, 70 N.Y. 537; Hall Co. v Continental Cas. Co., 34 A.D.2d 1028, affd 30 N.Y.2d 517; 63 N.Y. Jur 2d, Guaranty and Suretyship, § 207, at 284). Finally, the Country defendants are not aggrieved by that part of the order reserving decision on their motion to disqualify plaintiff's counsel and, therefore, that part of the order is not appealable (see, CPLR 5701 [a] [2]; Cobb v Kittinger, 168 A.D.2d 923).