Opinion
LT-84401-15/NY.
03-08-2016
I BLDG, INC., Plaintiff–Respondent, v. HONG MEI CHEUNG, Defendant–Appellant.
Peter Wang, New York, for appellant. Livoti Bernstein & Moraco, P.C., New York (Robert F. Moraco of counsel), for respondent.
Peter Wang, New York, for appellant.
Livoti Bernstein & Moraco, P.C., New York (Robert F. Moraco of counsel), for respondent.
Opinion
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered August 19, 2014, which, inter alia, granted plaintiff's motion for summary judgment on liability, unanimously affirmed, without costs.
Guaranties and leases are separate documents; the former impose obligations on the guarantors and the latter impose obligations on the landlord and the tenant (see Park Towers S. Co., LLC v. 57 W. Operating Co., Inc., 96 A.D.3d 443, 945 N.Y.S.2d 554 1st Dept.2012 ). When a guarantor is sued on the guaranty, as is the case here, he or she cannot raise a claim or defense which is personal to the principal debtor, such as breach of the principal contract, unless it extends to a failure of consideration for the principal contract, and therefore for the guarantor's contract.
(see Walcutt v. Clevite Corp., 13 N.Y.2d 48, 55–56, 241 N.Y.S.2d 834, 191 N.E.2d 894 1963; see also Moon 170 Mercer, Inc. v. Vella, 122 A.D.3d 544, 545, 998 N.Y.S.2d 19 1st Dept.2014; Hotel 71 Mezz Lender LLC v. Mitchell, 63 A.D.3d 447, 880 N.Y.S.2d 67 1st Dept.2009 ). The defenses and counterclaims asserted in the answer arise from the lease and do not include failure of consideration, and defendant guarantor was not a party to that agreement. Therefore, plaintiff landlord's alleged violation of the obligation not to unreasonably withhold consent to an assignment or sublease may not be raised in this action seeking to enforce the guaranty.
In any event, the defenses and counterclaims could have been raised in the prior action against the tenant, but the tenant failed to appear and a default judgment was entered against it.
We have considered defendant's remaining arguments and find them unavailing.
TOM, J.P., SWEENY, RICHTER, MANZANET–DANIELS, JJ., concur.