| J. Remora Maintenance LLC v Efromovich |
| 2013 NY Slip Op 01029 [103 AD3d 501] |
| February 19, 2013 |
| Appellate Division, First Department |
| J. Remora Maintenance LLC et al.,Respondents, v German Efromovich, Appellant. |
—[*1] Bracewell & Giuliani, New York (Michael C. Hefter of counsel), forrespondents.
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered January 5,2012, which, inter alia, granted plaintiffs' motion for summary judgment on thecomplaint and dismissal of the counterclaim, and order, same court and Justice, enteredJune 11, 2012, which, inter alia, confirmed the report of the Special Referee awardingplaintiffs $165,825 in attorneys' fees plus expenses, unanimously affirmed, with costs.Appeal from order, same court and Justice, entered June 19, 2012, unanimouslydismissed, without costs, as abandoned.
We affirm for reasons other than those stated by the motion court (see Matter ofAmerican Dental Coop. v Attorney-General of State of N.Y., 127 AD2d 274, 279 n3 [1st Dept 1987]). Defendant's defenses to the guaranty were not barred by the waiverprovision of its section 8 (k), which was unambiguously a waiver of jurisdictional andvenue defenses only; the "any" defense language relied upon by defendant and themotion court was, as to every clause in that provision, modified by the word "that,"which restricted the defenses waived to those relating to the adjudicative power of thecourts and did not include any substantive defenses.
However, we agree with plaintiffs' argument that the guaranty incorporated thewaiver provisions of the purchase agreement by reference (see generally Rudman vCowles Communications, 30 NY2d 1, 13 [1972]; Movado Group, Inc. vMozaffarian, 92 AD3d 431 [1st Dept 2012]). The guaranty and purchaseagreement were executed simultaneously as part of a single transaction, the purchaseagreement requires execution of the guaranty, attaches it as an exhibit, defines"Agreement" and "Ancillary Agreements" as including the guaranty, provides that itsmerger clause applies to ancillary agreements, and further provides that the guarantor'sobligation to pay the purchase price is "to the extent due and payable within the terms ofthe Purchase Agreement." The purchase agreement's "as is" provision and waiver of anydefense as to the "condition" of the asset that was the subject of that agreement barred thefailure of consideration and fraud in the inducement defenses to the guaranty and thecounterclaim for rescission based upon the same alleged fraud (see Princes Point,LLC v AKRF Eng'g, P.C., 94 [*2]AD3d 588 [1stDept 2012]). Even if the provisions of the purchase agreement were not incorporated intothe guaranty, these defenses would nonetheless be barred because they are unavailable tothe primary obligor.
The report of the special referee on attorneys' fees was supported by the record (see Matter of Ideal Mut. Ins.Co., 82 AD3d 518, 519 [1st Dept 2011]). Upon our own review (see Katz Park Ave. Corp. vJagger, 98 AD3d 921, 922 [1st Dept 2012]), we find the fees awarded notexcessive. Block billing did not render the invoiced amounts per se unreasonable (see 546-552 W. 146th St. LLC vArfa, 99 AD3d 117, 123 [1st Dept 2012]), and the evidence before the specialreferee adequately presented him with the opportunity to assess the reasonableness of thefees.
In view of the foregoing it is unnecessary to address the remaining contentions of theparties. Concur—Andrias, J.P., Renwick, Freedman and Gische, JJ. [PriorCase History: 34 Misc 3d 1208(A), 2012 NY Slip Op 50019(U).]