Opinion
2014-04-22
Eugene SHALIK, Plaintiff–Respondent, v. Michael STEIN, Defendant–Appellant.
Buchanan Ingersoll & Rooney, P.C., Miami, FL (Richard A. Morgan of the bar of the State of Florida, admitted pro hac vice, of counsel), for appellant. David Bolton, P.C., Garden City (David Bolton of counsel), for respondent.
Buchanan Ingersoll & Rooney, P.C., Miami, FL (Richard A. Morgan of the bar of the State of Florida, admitted pro hac vice, of counsel), for appellant. David Bolton, P.C., Garden City (David Bolton of counsel), for respondent.
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 plaintiff's 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 A.D.3d 445, 447, 885 N.Y.S.2d 255 [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 A.D.2d 233, 723 N.Y.S.2d 442 [1st Dept.2001];see also Beltrone v. General Schuyler & Co., 229 A.D.2d 857, 645 N.Y.S.2d 914 [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. TOM, J.P., RENWICK, RICHTER, FEINMAN, GISCHE, JJ., concur.