| Davimos v Halle |
| 2009 NY Slip Op 02451 [60 AD3d 576] |
| March 31, 2009 |
| Appellate Division, First Department |
| Richard Davimos, Jr., Respondent, v John Halle,Appellant. |
—[*1] Reiss Eisenpress LLP, New York (Matthew Sheppe of counsel), for respondent.
Judgment, Supreme Court, New York County (Eileen Bransten, J.; Karla Moskowitz, J., atnonjury trial), entered September 18, 2008, awarding plaintiff damages in the principal amountof $1 million, plus interest from January 7, 2002 until date of judgment in the amount of$582,657.53, unanimously affirmed, with costs.
"[I]t is a well-established rule of contract law that all contemporaneous instruments betweenthe same parties relating to the same subject matter are to be read together and interpreted asforming part of one and the same transaction" (see TBS Enters. v Grobe, 114 AD2d 445,446 [1985] [citations and internal quotation marks omitted], lv denied 67 NY2d 602[1986]). In determining whether contracts are separable or entire, "the primary standard is theintent manifested, viewed in the surrounding circumstances" (Williams v Mobil OilCorp., 83 AD2d 434, 439 [1981] [citations omitted]).
The evidence at trial overwhelmingly demonstrated that defendant's personal guarantee,Total Film Group's (TGF) corporate guarantee, TGF president Gerald Green's personalguarantee, and TGF subsidiary 1st Mister's promissory note to plaintiff for $1 million, allexecuted the same day, December 20, 1999, were part of the same transaction. The evidenceshowed that defendant actively participated in the deal; knew the loan amount to be for $1million; agreed to guarantee the loan because he knew plaintiff would not loan money withouthis guarantee; and received a $50,000 commission in connection with arranging the loan. Greentestified that the $1 million note, dated December 20, 1999, was in return for plaintiff'sinvestment in 1st Mister and was the note referenced in the corporate guarantee executedDecember 20, 1999. The fact that the guarantees all reference a December 17, 1999 note is of nomoment, in light of the foregoing.
Furthermore, as noted by the trial court, defendant's guarantee was a continuing one. Aguarantor is bound by an anticipatory agreement in his undertaking that he will not be relieved ofliability by a modification of the principal contract (see Banque Worms v Andre Cafe,183 AD2d 494 [1992]). Thus, even assuming, arguendo, that the parties intended theirguarantees to refer to the "unsigned note," as defendant alleges, rather than the December 20,1999 note simultaneously executed, their guarantees would nonetheless extend to the executednote because they were continuing.[*2]
In view of the foregoing, we need not reach defendant'scontentions concerning the findings of fraud. His remaining arguments are unavailing.Concur—Gonzalez, P.J., Tom, Sweeny, Catterson and Renwick, JJ.