150 Broadway N.Y. Assocs., L.P. v. Shandell

Full title: 150 BROADWAY N.Y. ASSOCIATES, L.P., Plaintiff–Appellant–Respondent, v…

Court: Supreme Court, Appellate Division, First Department, New York.

Date published: Dec 13, 2011

90 A.D.3d 498 (N.Y. App. Div. 2011)

934 N.Y.S.2d 154

2011 N.Y. Slip Op. 8991

Opinion

2011-12-13

150 BROADWAY N.Y. ASSOCIATES, L.P., Plaintiff–Appellant–Respondent, v. Richard SHANDELL, Defendant–Respondent,Shoshanna Bookson, Defendant–Respondent–Appellant,Burt Blitz, et al., Defendants.

Avrom R. Vann, New York, for appellant-respondent. Law Offices of Fred L. Seeman, New York (Peter Kirwin of counsel), for respondent-appellant.

MAZZARELLI

Avrom R. Vann, New York, for appellant-respondent. Law Offices of Fred L. Seeman, New York (Peter Kirwin of counsel), for respondent-appellant. Lazare Potter & Giacovas LLP, New York (David E. Potter of counsel), for respondent.MAZZARELLI, J.P., ANDRIAS, FREEDMAN, MANZANET–DANIELS, JJ.

Order, Supreme Court, New York County (Judith J. Gische, J.), entered May 17, 2010, which granted defendant Shandell's motion for summary judgment dismissing the complaint as against him, denied plaintiff's cross motion for summary judgment on such claims, denied plaintiff's motion for summary judgment on its claims against defendant Bookson and denied Bookson's application for summary judgment dismissing the claims as against her upon a search of the record, unanimously affirmed, without costs.

In an action against former law firm partners seeking to recover the firm's rent arrears and other charges from the individual partner guarantors, the motion court properly interpreted the guaranty's provision for the release of withdrawing partners' obligations. The guaranty's requirement that the firm be “then current” in its payment of rent at the time of a guarantor's withdrawal is not to be interpreted in a hypertechnical manner that is contrary to the purpose of the guaranty and would have the effect of broadening the guarantors' obligations ( see Lo–Ho LLC v. Batista, 62 A.D.3d 558, 559–560, 881 N.Y.S.2d 33 [2009] ). We note with respect to the cross appeal that plaintiff's mere silence as to its reason for rejecting Bookson's notice of withdrawal did not waive its right to enforce the release provision ( see Bank of New York v. Murphy, 230 A.D.2d 607, 608, 645 N.Y.S.2d 800 [1996], lv. dismissed 89 N.Y.2d 1030, 658 N.Y.S.2d 245, 680 N.E.2d 619 [1997] ).

We have considered the parties' other contentions for affirmative relief and find them unavailing.