Opinion
01-30-2024
DB 232 SEIGEL MEZZ LLC, Plaintiff–Respondent, v. Toby MOSKOVITS et al., Defendants, Moshe Dov Schweid, Defendant–Appellant.
Moses & Singer LLP, New York (Philippe A. Zimmerman of counsel), for appellant. Thompson Coburn LLP, New York (Jose A. Fernandez of counsel), for respondent.
Moses & Singer LLP, New York (Philippe A. Zimmerman of counsel), for appellant.
Thompson Coburn LLP, New York (Jose A. Fernandez of counsel), for respondent.
Singh, J.P., Kapnick, Kennedy, Higgitt, Michael, JJ.
[1] Judgment, Supreme Court, New York County (Barry R. Ostrager, J.), entered September 28, 2022, in favor of plaintiff and against defendants in the total amount of $5,965,188.31, and bringing up for review an order, same court and Justice, entered August 25, 2022, which granted plaintiff’s motion for summary judgment in lieu of complaint on a guaranty, unanimously affirmed, with costs. Appeal from aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
[2, 3] Plaintiff satisfied its prima facie burden on its CPLR 3213 motion for summary judgment in lieu of complaint by submitting the guaranties executed by defendants, the underlying loan agreement, and its demand letters establishing the borrower’s default and defendants’ failure to perform under the guaranties (see BBM3, LLC v. Vosotas, 216 A.D.3d 403, 188 N.Y.S.3d 39 [1st Dept. 2023]; see also Simon v. Industry City Distillery, Inc., 159 A.D.3d 505, 505, 72 N.Y.S.3d 76 [1st Dept. 2018]). That the guaranties reference a performance obligation does not bar accelerated treatment under CPLR 3213 where, as here, the operative provision defined defendants’ obligation as the "full and punctual payment" of the borrower’s obligations to plaintiff (see 27 W. 72nd St. Note Buyer LLC v. Terzi, 194 A.D.3d 630, 631, 150 N.Y.S.3d 34 [1st Dept. 2021], lv denied 37 N.Y.3d 913, 2021 WL 4782862 [2021]; see also European Am. Bank v. Competition Motors, 182 A.D.2d 67, 586 N.Y.S.2d 816 [2d Dept. 1992]).
[4] Defendant Moshe Dov Schweid failed to raise a triable issue of fact, as he does not dispute the existence of the guaranties, the underlying debts, or defendants’ failure to perform under the guaranties (see 27 W. 72nd St. Note Buyer LLC, 194 A.D.3d at 631, 150 N.Y.S.3d 34). His claim that he did not knowingly sign the guaranty is unavailing, as "[a] party who signs a document without any valid excuse for having failed to read it is ‘conclusively bound’ by its terms" (Sorenson v. Bridge Capital Corp., 52 A.D.3d 265, 266, 861 N.Y.S.2d 280 [1st Dept. 2008], quoting Sofio v. Hughes, 162 A.D.2d 518, 519, 556 N.Y.S.2d 717 [1990], lv denied 76 N.Y.2d 712, 563 N.Y.S.2d 768, 565 N.E.2d 517 [1990]). Defendants also expressly waived any and all defenses to enforcement of the guaranties, including claims that plaintiff breached the covenant of good faith and fair dealing (see Fortress Credit Corp. v. Hudson Yards LLC, 78 A.D.3d 577, 912 N.Y.S.2d 41 [1st Dept. 2010]; Hotel 71 Mezz Lender LLC v. Mitchell, 63 A.D.3d 447, 448, 880 N.Y.S.2d 67 [1st Dept. 2009]).