Opinion
16666 158199/14
01-19-2016
Rivereast Apartments Investors LLC, Plaintiff-Appellant, v. Robert Gladstone, Defendant-Respondent.
Mitofsky, Shapiro, Neville & Hazen LLP, New York (M. David Fonseca of counsel), for appellant. Davidoff Hutcher & Citron LLP, New York (Joshua Krakowsky of counsel), for respondent.
Mitofsky, Shapiro, Neville & Hazen LLP, New York (M. David Fonseca of counsel), for appellant.
Davidoff Hutcher & Citron LLP, New York (Joshua Krakowsky of counsel), for respondent.
Order, Supreme Court, New York County (Donna M. Mills, J.), entered April 7, 2015, which granted defendant guarantor's motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), unanimously reversed, on the law, without costs, and the motion denied.
"An interpretation that gives effect to all terms of an agreement is preferable to one that ignores terms or accords them an unreasonable interpretation" (Ruttenberg v Davadge Data Sys. Corp., 215 AD2d 191, 196 [1st Dept 1995] [citations omitted]). Here, the guaranty specifically references the term "landlord" with its successors and assigns, thus the predecessor landlord's assignment to plaintiff was permissible. Nevertheless, paragraph 15 of the guaranty, the anti-assignment provision, states that: "The obligations of Guarantor hereunder and/or this Guaranty may not be assigned or transferred." While plaintiff reconciles this provision with the entire agreement to restrict assignment only by the guarantor, defendant maintains that the plain language of the second part of paragraph 15 means that the guaranty cannot be assigned, and the assignment at issue is void.
Based on these conflicting interpretations, and examining both the "entire contract and consider[ing] the relation of the parties and the circumstances under which it was executed" (Goldman Sachs Group, Inc. v Almah LLC, 85 AD3d 424, 426 [1st Dept 2011] [internal quotation marks and citations omitted], lv dismissed 18 NY3d 877 [2012]), the motion court properly found the guaranty to be ambiguous.
In the face of ambiguity, "the conduct of the parties is the best evidence as to their meaning" (Barbour v Knecht, 296 AD2d 218, 224 [1st Dept 2002]). Thus, inasmuch as the guaranty was incorporated by reference into the lease, the signatory on behalf of the tenant was its "substantial" owner, the defendant guarantor, and the lease was further amended after assignment, discovery is warranted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 19, 2016
CLERK