Opinion
2015-03206, Index No. 5203/13.
10-18-2017
82–90 BROADWAY REALTY CORP., respondent, v. NEW YORK SUPERMARKET, INC., et al., appellants, et al., defendant.
Michael T. Lamberti, New York, NY, for appellants. Nicole L. Bruszewski, Bayside, NY (Michael A. Santucci of counsel), for respondent.
Michael T. Lamberti, New York, NY, for appellants.
Nicole L. Bruszewski, Bayside, NY (Michael A. Santucci of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, and VALERIE BRATHWAITE NELSON, JJ.
In an action, inter alia, to recover damages for breach of contract, the defendants New York Supermarket, Inc., and Long Deng appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Pineda–Kirwan, J.), dated December 1, 2014, as granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action, inter alia, to recover damages for breach of contract and to recover on a personal guaranty. It alleged in the complaint that it leased commercial property to the defendant New York Supermarket, Inc. (hereinafter N.Y. Supermarket), pursuant to a lease dated January 15, 2000, and that in March of 2001, the defendant Long Deng executed a personal guaranty of N.Y. Supermarket's obligations under the lease. The plaintiff alleged that N.Y. Supermarket had defaulted on the payments required by the lease, and that Long Deng had failed to satisfy his obligations pursuant to the guaranty. Thereafter, the plaintiff moved, inter alia, for summary judgment on the issue of liability. In support of its motion it submitted, among other things, a copy of a personal guaranty allegedly executed by Long Deng on March 27, 2001, which guaranteed the terms of a lease between the plaintiff and N.Y. Supermarket "dated on January 15, 2001." N.Y. Supermarket and Long Deng (hereinafter together the defendants) opposed the motion, arguing that the plaintiff had failed to establish by admissible evidence the amounts N.Y. Supermarket owed the plaintiff under the lease. The defendants further argued that Long Deng was not liable under the personal guaranty since it was not notarized, he had not signed it, and the guaranty referred to a lease dated January 15, 2001, while the lease in this case was dated January 15, 2000. The Supreme Court, inter alia, granted the plaintiff's motion for summary judgment on the issue of liability. The defendants appeal.
The plaintiff established its prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action to recover damages for breach of contract by submitting a copy of the lease and an affidavit from its president (see Great Neck Terrace Owners Corp. v. McCabe, 101 A.D.3d 944, 945, 957 N.Y.S.2d 216 ; cf. Elm Realty Assoc., LLC v. Leben, LLC, 22 A.D.3d 790, 792, 803 N.Y.S.2d 683 ). Since the plaintiff's motion was for summary judgment on the issue of liability only, it was not required to submit proof of the amount of damages (see Northway Mall Assoc. v. Bernlee Realty Corp., 90 A.D.2d 739, 739–740, 455 N.Y.S.2d 684 ). In opposition to the plaintiff's prima facie showing, the defendants failed to raise a triable issue of fact (see Elm Realty Assoc., LLC v. Leben, LLC, 22 A.D.3d at 793, 803 N.Y.S.2d 683 ; Town of Hempstead v. Lizza Indus., Inc., 232 A.D.2d 628, 629, 648 N.Y.S.2d 988 ).
The plaintiff also established its prima facie entitlement to judgment as a matter of law on the cause of action to recover on the personal guaranty by demonstrating that Long Deng guaranteed all terms and rent payments of the lease, and that Long Deng defaulted on his obligations under the guaranty (see Barnaba Realty Group, LLC v. Solomon, 121 A.D.3d 730, 730, 994 N.Y.S.2d 356 ; TD Bank, N.A. v. Clinton Ct. Dev., LLC, 105 A.D.3d 1032, 1034–1035, 965 N.Y.S.2d 129 ). In opposition, the defendants failed to raise a triable issue of fact.
Initially, the defendants argue that the personal guaranty was not notarized. However, while a personal guaranty must be in writing (see Philip F. Alba, P.C. v. Lindenman, 289 A.D.2d 550, 550, 735 N.Y.S.2d 613 ), it does not have to be notarized to make it legally binding on the parties (see Columbus Trust Co. v. Campolo, 110 A.D.2d 616, 617, 487 N.Y.S.2d 105, affd. 66 N.Y.2d 701, 496 N.Y.S.2d 425, 487 N.E.2d 282 ; cf.
Seaboard Sur. Co. v. Earthline Corp., 262 A.D.2d 253, 253, 692 N.Y.S.2d 375 ).
Contrary to the defendants' contention, the typographical error in the guaranty relating to the year of the lease did not render the guaranty unenforceable. "Where there is no mistake about the agreement and the only mistake alleged is in the reduction of that agreement to writing, such mistake of the scrivener, or of either party, no matter how it occurred, may be corrected" ( Born v. Schrenkeisen, 110 N.Y. 55, 59, 17 N.E. 339 ; see Nash v. Kornblum, 12 N.Y.2d 42, 47, 234 N.Y.S.2d 697, 186 N.E.2d 551 ; Simek v. Cashin, 292 A.D.2d 439, 440, 738 N.Y.S.2d 393 ). In such a case, there is no need to reform the contract (see Castellano v. State of New York, 43 N.Y.2d 909, 911, 403 N.Y.S.2d 724, 374 N.E.2d 618 ; Simek v. Cashin, 292 A.D.2d at 440, 738 N.Y.S.2d 393 ). "[I]n the absence of a claim for reformation, courts may as a matter of interpretation carry out the intentions of the parties by transposing, rejecting, or supplying words to make the meaning of the contract more clear" ( Hickman v. Saunders, 228 A.D.2d 559, 560, 645 N.Y.S.2d 49 ; see Ross v. Sherman, 95 A.D.3d 1100, 1100, 944 N.Y.S.2d 620 ).
Here, the Supreme Court did not err in finding that the date of the lease in the guaranty should have read "January 15, 2000," rather than "January 15, 2001," notwithstanding the fact that the plaintiff did not seek to reform the contract. The plaintiff's president asserted in his affidavit that, pursuant to the lease, Long Deng was required to execute a guaranty of the lease when he purchased N.Y. Supermarket from its previous owner in March of 2001. The guaranty refers to the same parties and premises as are set forth in the lease, and the same date of the lease except for the incorrect year. Moreover, Long Deng acknowledged that he is the president of N.Y. Supermarket and did not provide a copy of any lease dated January 15, 2001, to which the guaranty could apply. As such, the court correctly interpreted the lease and the guaranty to carry out the intentions of the parties (see Ross v. Sherman, 95 A.D.3d at 1100–1101, 944 N.Y.S.2d 620 ; Hickman v. Saunders, 228 A.D.2d at 560, 645 N.Y.S.2d 49 ).
With regard to the forgery defense, the plaintiff correctly notes that no such defense was raised in the defendants' answer (see Seaboard Sur. Co. v. Nigro Bros., 222 A.D.2d 574, 574, 635 N.Y.S.2d 296 ; see also CPLR 3018 [b] ; UCC 3–307 ). Moreover, in opposition to the plaintiff's prima facie showing of a valid guarantee, Long Deng submitted only his affidavit which conclusorily asserted that he did not sign the guaranty. Although, as the defendants correctly contend, an expert opinion was not necessary to raise a triable issue of fact regarding a forgery allegation, Long Deng was required to submit more than his bald assertion of forgery to create an issue of fact (see
Banco Popular N. Am. v. Victory Taxi Mgt., 1 N.Y.3d 381, 384, 774 N.Y.S.2d 480, 806 N.E.2d 488 ; Kitovas v. Megaris, 133 A.D.3d 720, 722, 20 N.Y.S.3d 393 ; TD Bank, N.A. v. Piccolo Mondo 21st Century, Inc., 98 A.D.3d 499, 500, 949 N.Y.S.2d 444 ).
The defendants' remaining contentions are either improperly raised for the first time on appeal or without merit.
Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability.