Opinion
2013-03-26
INTERNATIONAL PLAZA ASSOCIATES, L.P., Plaintiff–Respondent, v. Michael A. LACHER, et al., Defendants–Appellants.
Anderson Kill & Olick, P.C., New York (Adam J. Rader of counsel), for appellants. Harwood Reiff LLC, New York (Donald A. Harwood of counsel), for respondent.
Anderson Kill & Olick, P.C., New York (Adam J. Rader of counsel), for appellants. Harwood Reiff LLC, New York (Donald A. Harwood of counsel), for respondent.
GONZALEZ, P.J., SWEENY, RENWICK, MANZANET–DANIELS, ROMÁN, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered July 12, 2011, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for a protective order striking defendants' second request for production of documents and interrogatories 1–28 in defendants' second set of interrogatories, and denied defendants' cross motion to compel plaintiff to respond to the above discovery requests, unanimously affirmed, with costs, with leave to defendants to serve a proper request for production of documents. Order, same court and Justice, entered May 21, 2012, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on the issue of liability under defendant Michael A. Lacher's guaranty, unanimously affirmed, with costs.
We defer to the trial court's determination regarding disclosure ( see e.g. Don Buchwald & Assoc. v. Marber–Rich, 305 A.D.2d 338, 761 N.Y.S.2d 617 [1st Dept. 2003] ), especially because plaintiff argued that many of defendants' second discovery requests were duplicative of their first discovery requests and that the court had resolved issues arising from the first discovery requests at a January 2009 conference, of which there is no transcript in the appendix. Although some of defendants' second discovery requests may have been relevant and non-duplicative, the motion court appropriately vacated the requests in their entirety ( Editel, N.Y. v. Liberty Studios, 162 A.D.2d 345, 346, 557 N.Y.S.2d 21 [1st Dept. 1990];Dykowsky v. New York City Tr. Auth., 124 A.D.2d 465, 507 N.Y.S.2d 626 [1st Dept. 1986] ). The court indicated that it would have allowed a second set of document requests restricted to documents that defendants had specifically requested during depositions. Therefore, we grant defendants leave to serve a proper request for production of documents.
Plaintiff's motion for summary judgment as to liability under Lacher's guaranty was supported not only by affidavits from a witness whose name plaintiff had not previously disclosed but also by numerous exhibits ( compare Williams v. ATA Hous. Corp., 19 A.D.3d 406, 796 N.Y.S.2d 128 [2d Dept. 2005], and Concetto v. Pedalino, 308 A.D.2d 470, 764 N.Y.S.2d 638 [2d Dept. 2003], with Bethlehem Steel Corp. v. Solow, 70 A.D.2d 850, 418 N.Y.S.2d 40 [1st Dept. 1979], appeal dismissed48 N.Y.2d 754 [1979] ). We also note that the court has given defendants an opportunity to depose the previously undisclosed witness.
Defendants' argument that plaintiff failed to prove the debt underlying the guaranty is unavailing ( see e.g. Reliance Constr. Ltd. v. Kennelly, 70 A.D.3d 418, 893 N.Y.S.2d 548 [1st Dept. 2010], lv. dismissed15 N.Y.3d 848, 909 N.Y.S.2d 19, 935 N.E.2d 812 [2010];Sterling Natl. Bank v. Biaggi, 47 A.D.3d 436, 849 N.Y.S.2d 521 [1st Dept. 2008] ). It is undisputed that defendant Law Office of Michael A. Lacher, LLP, d/b/a Lacher & Lovell–Taylor (LLT) has paid no rent from June 2006 onward, although it occupied the premises through October 31, 2006. To be sure, LLT has arguments as to why it should not have to pay rent. However, the lease states that rent is payable on the first day of the month and that “[t]he minimum rent and additional rent shall be payable by [LLT] without any set-off, abatement or deduction whatsoever.” Hence, at least the minimum and additional rent was “due under the Lease,” as the guaranty requires. Furthermore, the guaranty states that it “shall not be ... affected by ... any defense available to Guarantor” and it is an unconditional guaranty ( cf. Madison Ave. Leasehold, LLC v. Madison Bentley Assoc. LLC, 30 A.D.3d 1, 10, 811 N.Y.S.2d 47 [1st Dept. 2006], affd. 8 N.Y.3d 59, 828 N.Y.S.2d 254, 861 N.E.2d 69 [2006] ). Contrary to defendants' contention, a guarantor's liability may exceed the scope of the principal's liability ( Raven El. Corp. v. Finkelstein, 223 A.D.2d 378, 636 N.Y.S.2d 292 [1st Dept. 1996], lv. dismissed88 N.Y.2d 1016, 649 N.Y.S.2d 382, 672 N.E.2d 608 [1996] ).