| Arlona Ltd. Partnership v 8th of Jan. Corp. |
| 2008 NY Slip Op 03571 [50 AD3d 933] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Arlona Limited Partnership, Respondent, v 8th of JanuaryCorp. et al., Appellants. |
—[*1] Salvatore E. Benisatto, Jericho, N.Y., for respondent.
In an action to recover upon a personal guaranty and for damages for breach of a lease, thedefendants appeal, as limited by their brief, from so much of an order of the Supreme Court,Suffolk County (R. Doyle, J.), dated May 21, 2007, as denied those branches of their motionwhich were for summary judgment dismissing the fourth and fifth causes of action assertedagainst the defendant Catherine Anderson Harmantas.
Ordered that the order is affirmed insofar as appealed from, with costs.
A guaranty must be construed "in the strictest manner" (White Rose Food v Saleh, 99NY2d 589, 591 [2003]; see Davimos vHalle, 35 AD3d 270 [2006]). Thus, an alteration of the contract to which the guarantyapplies will serve to discharge the guarantor's obligation unless the guarantor has consented tothe alteration (see White Rose Food v Saleh, 99 NY2d 589 [2003]; Davimos v Halle, 35 AD3d 270[2006]; Mackler v Burke, 2 AD3d505 [2003]; Congregation Ohavei Shalom v Comyns Bros., 123 AD2d 656 [1986]).The rationale for discharging a guarantor when the underlying contract is modified is that themodification substitutes a new obligation for the old one, and the guarantor cannot be heldresponsible for the failure of the principal to perform an obligation other than the obligationoriginally guaranteed (see Trustco Bank N.Y. v Sage, 238 AD2d 839 [1997]).
Here, the fourth and fifth causes of action are predicated upon a personal guaranty of a leaseby the defendant Catherine Anderson Harmantas, the president and sole shareholder of thecorporate defendant. In support of those branches of the defendants' motion which were forsummary judgment dismissing the fourth and fifth causes of action asserted against Harmantas,the defendants [*2]submitted documentary evidence establishingthat the lease between the plaintiff and the corporate defendant was altered by a modificationagreement. The modification agreement, which was executed after the plaintiff landlordexercised its right under the lease to relocate the corporate defendant to a different location in itsshopping center, altered the corporate defendant's obligation under the lease by raising its rent,thus increasing Harmantas's risk as guarantor (see Geiger v ENAP, Inc., 264 AD2d 755[1999]; Congregation Ohavei Shalom v Comyns Bros., 123 AD2d 656 [1986];Mangold v Keip, 177 Misc 2d 953 [1998]). However, Harmantas failed to make a primafacie showing, through the submission of evidentiary proof, that she did not consent to themodification of the lease in her individual capacity (see Mangold v Keip, 177 Misc 2d953 [1998]; cf. Shire Realty Corp. v Schorr, 55 AD2d 356 [1977]). Accordingly, theSupreme Court properly denied those branches of the defendants' motion which were forsummary judgment dismissing the fourth and fifth causes of action asserted against Harmantas.Lifson, J.P., Florio, Eng and Chambers, JJ., concur.