Opinion
2013-03-12
ARTHUR AT THE WESTCHESTER, INC., etc., et al., Plaintiffs–Appellants–Respondents, v. WESTCHESTER MALL, LLC, Defendant–Respondent–Appellant.
Tenenbaum Berger & Shivers LLP, Brooklyn (David M. Berger of counsel), for appellants-respondents. Braff, Harris & Sukoneck, New York (Massimo F. D'Angelo of counsel), for respondent-appellant.
Tenenbaum Berger & Shivers LLP, Brooklyn (David M. Berger of counsel), for appellants-respondents. Braff, Harris & Sukoneck, New York (Massimo F. D'Angelo of counsel), for respondent-appellant.
MAZZARELLI, J.P., SAXE, DeGRASSE, MANZANET–DANIELS, CLARK, JJ.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered February 21, 2012, which, insofar as appealed from, denied plaintiffs' motion to the extent that it sought to dismiss the counterclaims for rent against plaintiff guarantor and granted their motion to the extent that it sought summary judgment as to liability on their causes of action for wrongful eviction, unanimously affirmed, with costs.
The guaranty, which recited that it was made to induce execution of a lease, was supported by consideration notwithstanding that it was signed before the lease ( see Teitelbaum v. Mordowitz, 248 A.D.2d 161, 669 N.Y.S.2d 811 [1st Dept. 1998];Michelin Mgt. Co. v. Mayaud, 307 A.D.2d 280, 281, 762 N.Y.S.2d 108 [2nd Dept. 2003] ).
Vacatur of the default judgment in the summary proceeding for improper service of process precludes any argument that the evictions were lawful ( see Maracina v. Shirrmeister, 105 A.D.2d 672, 673, 482 N.Y.S.2d 14 [1st Dept. 1984] ). We note that the lease did not authorize the landlord's re-entry to the commercial premises without legal process ( see North Main St. Bagel Corp. v. Duncan, 6 A.D.3d 590, 591, 775 N.Y.S.2d 362 [2nd Dept. 2004] ).
We have considered the remaining contentions of the parties and find them unavailing.