Opinion
62 CA 20-00333
03-26-2021
MIDTOWN MARKET MISSOURI CITY, TX. LLC, Plaintiff-Respondent, v. Frank TAVAKOLI, Defendant-Appellant, and SH Salon LLC, Defendant.
FRANK A. ALOI, ROCHESTER (ROBERT J. LUNN OF COUNSEL), FOR DEFENDANTS-APPELLANTS. BOND, SCHOENECK & KING, PLLC, ROCHESTER (CURTIS A. JOHNSON OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
FRANK A. ALOI, ROCHESTER (ROBERT J. LUNN OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
BOND, SCHOENECK & KING, PLLC, ROCHESTER (CURTIS A. JOHNSON OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff's predecessor conveyed its interest in a plaza in Missouri City, Texas and assigned a lease for salon space with defendants’ predecessor to plaintiff. Plaintiff and defendants subsequently entered into two amendments to the lease agreement. Contemporaneously with the execution of the amendments, defendant Frank Tavakoli, owner of defendant SH Salon LLC, personally guaranteed performance of the lease and its amendments and consented to jurisdiction and venue in Monroe County. Approximately two years after the second lease amendment, defendants ceased making rental payments and abandoned the premises, claiming that plaintiff had failed to uphold its verbal representations that it would provide, inter alia, security and lighting for the premises, and marketing of the business. Plaintiff then commenced this action seeking damages for defendants’ alleged breach of the commercial lease and Tavakoli's breach of the guarantees by failing to pay timely rent and by vacating or abandoning the premises. Tavakoli appeals from an order and judgment that granted plaintiff's motion for, inter alia, partial summary judgment on liability and denied defendants’ cross motion for leave to amend the answer to assert certain affirmative defenses and counterclaims. We affirm.
"A guaranty is a promise to fulfill the obligations of another party, and is subject ‘to the ordinary principles of contract construction’ " ( Cooperatieve Centrale Raiffeisen–Boerenleenbank, B.A., "Rabobank Intl.," N.Y. Branch v. Navarro , 25 N.Y.3d 485, 492, 15 N.Y.S.3d 277, 36 N.E.3d 80 [2015] ). "Under those principles, ‘a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms’ " ( id. at 493, 15 N.Y.S.3d 277, 36 N.E.3d 80 ). Here, plaintiff met its initial burden on the motion by establishing that Tavakoli breached the guarantees executed by him (see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). We reject the contention of Tavakoli that he raised a triable issue of fact in opposition by presenting evidence of an oral condition precedent to the legal effectiveness of the guarantees. "[P]arol evidence may be admissible to prove a condition precedent to the legal effectiveness of a written agreement if the condition is not contradictory or at variance with its express terms" ( Bank of Suffolk County v. Kite , 49 N.Y.2d 827, 828, 427 N.Y.S.2d 782, 404 N.E.2d 1323 [1980] ; see Tambe Elec., Inc. v. Home Depot U.S.A., Inc. , 49 A.D.3d 1161, 1162, 856 N.Y.S.2d 373 [4th Dept. 2008] ). Here, the alleged oral condition precedent contradicts the unconditional guarantees that Tavakoli executed, and therefore it cannot be proven by parol evidence (see Cooperatieve Centrale Raiffeisen–Boerenleenbank, B.A., "Rabobank Intl.," N.Y. Branch , 25 N.Y.3d at 493-494, 15 N.Y.S.3d 277, 36 N.E.3d 80 ; Citibank v. Plapinger , 66 N.Y.2d 90, 94-95, 495 N.Y.S.2d 309, 485 N.E.2d 974 [1985], rearg denied 67 N.Y.2d 647, 499 N.Y.S.2d 1031, 490 N.E.2d 558 [1986] ; Marine Midland Bank v. Maloy , 174 A.D.2d 994, 994, 572 N.Y.S.2d 155 [4th Dept. 1991] ; Meadow Brook Natl. Bank v. Bzura , 20 A.D.2d 287, 288, 246 N.Y.S.2d 787 [1st Dept. 1964] ; cf. Long Is. Trust Co. v. International Inst. for Packaging Educ. , 38 N.Y.2d 493, 497, 381 N.Y.S.2d 445, 344 N.E.2d 377 [1976] ; see also Wurlitzer Co. v. Playtime Distribs. , 58 A.D.2d 684, 684, 395 N.Y.S.2d 267 [3d Dept. 1977] ).
Finally, we reject Tavakoli's contention that Supreme Court abused its discretion in denying the cross motion seeking leave to amend the answer to assert certain affirmative defenses and counterclaims (see generally Woloszuk v. Logan-Young , 162 A.D.3d 1548, 1549, 79 N.Y.S.3d 428 [4th Dept. 2018] ; Broyles v. Town of Evans , 147 A.D.3d 1496, 1497, 47 N.Y.S.3d 605 [4th Dept. 2017] ).