| Hotel 71 Mezz Lender LLC v Mitchell |
| 2009 NY Slip Op 04355 [63 AD3d 447] |
| June 4, 2009 |
| Appellate Division, First Department |
| Hotel 71 Mezz Lender LLC, Respondent, v Guy T.Mitchell, Appellant et al., Defendants. |
—[*1] Akin Gump Strauss Hauer & Feld LLP, New York (John W. Berry of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered April 21,2008, to the extent appealed from, awarding plaintiff the amount of $52,404,066.54 on aguaranty as against defendant Guy T. Mitchell, unanimously affirmed, with costs. Appeal fromorder, same court and Justice, entered February 13, 2008, which, inter alia, granted plaintiff'smotion for summary judgment against Mitchell, unanimously dismissed, without costs, assubsumed in the appeal from the aforesaid judgment. Order, same court and Justice, entered May14, 2008, which, inter alia, granted plaintiff's motion to strike Mitchell's answer, affirmativedefenses and counterclaims, unanimously affirmed, with costs.
Plaintiff met its burden of establishing prima facie that it made a loan to Chicago H & SSenior Investors, LLC, that Mitchell executed a personal guaranty of repayment of the loan inthe event of Chicago H & S's default, and that Chicago H & S defaulted on the loan (seeEastbank v Phoenix Garden Rest., 216 AD2d 152 [1995], lv denied 86 NY2d 711[1995]). Both the guaranty and the subsequent forbearance agreement, in which the guaranty wasreaffirmed, contain express waivers of any and all defenses to enforcement of the guaranty. Thelanguage of the waivers is sufficiently specific to bar Mitchell's asserted defenses of frustrationof performance of Chicago H & S's obligations under the loan agreement by plaintiff, breach ofthe covenant of good faith and fair dealing, and fraudulent inducement (see Sterling Natl. Bank v Biaggi, 47AD3d 436 [2008]; Red Tulip, LLCv Neiva, 44 AD3d 204, 209-210 [2007], lv dismissed 10 NY3d 741 [2008]).
In any event, these defenses are without merit. Mitchell asserts that plaintiff breachedexpress or implied provisions of the loan agreement, or impaired Mitchell's interest in thecollateral, thereby discharging his obligation on the guaranty to the extent that such impairmentdevalued the collateral, by failing to disburse funds and give its approvals of certain decisionsregarding management of the subject building and marketing of the condominium units [*2]contained therein in a timely fashion. However, Mitchell fails toidentify a single contractual provision that plaintiff allegedly breached, and indeed, the loanagreement does not impose any specific time constraints on plaintiff with regard to saiddisbursements and approvals. In any event, Mitchell's defenses sounding in breach of contractare premised on allegations of misconduct by plaintiff vis-à-vis Chicago H & S alone andtherefore belong to and may be asserted by Chicago H & S alone (see Citibank vPlapinger, 66 NY2d 90, 93 n [1985]; Walcutt v Clevite Corp., 13 NY2d 48, 55-56[1963]). Mitchell's allegations supporting his defense of fraudulent inducement sound in failureto perform promises of future acts, which amounts simply to breach of contract. Mitchell doesnot allege that plaintiff breached any duty owed him separate and apart from the contractual duty(see Tesoro Petroleum Corp. v Holborn Oil Co., 108 AD2d 607 [1985], appealdismissed 65 NY2d 637 [1985]).
Based on Mitchell's willful defiance of its order to appear for his continued deposition, thecourt properly dismissed Mitchell's counterclaims, which in any event were virtually identical tohis affirmative defenses, and precluded him from offering his own testimony in support of hisdefenses and counterclaims.
We have considered defendant's remaining contentions and find them unavailing.Concur—Andrias, J.P., Buckley, Moskowitz, DeGrasse and Richter, JJ.