| 1626 Second Ave. LLC v Salsberg |
| 2013 NY Slip Op 02200 [105 AD3d 432] |
| April 2, 2013 |
| Appellate Division, First Department |
| 1626 Second Avenue LLC, Respondent, v StevenSalsberg, Respondent-Appellant, and Nick Camaj,Appellant-Respondent. |
—[*1] Joshua E. Abraham, New York, for respondent-appellant.
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered February 23,2012, which, insofar as appealed from as limited by the briefs, granted plaintiff's motionfor summary judgment dismissing defendant Steven Salsberg's counterclaim, denieddefendants' cross motions for summary judgment dismissing the complaint, and denieddefendant Nick Camaj's cross motion for summary judgment dismissing Salsberg's crossclaim, unanimously modified, on the law, without costs, plaintiff's motion denied,defendant Camaj's cross motion granted, and otherwise affirmed, without costs.
In this dispute between plaintiff landlord and defendants, the principals of acorporation that was landlord's former tenant, the lease guaranty does not violate thestatute of frauds (General Obligations Law § 5-701 [a] [2]); it is in writing andsigned by both defendants. Where, as here, there is a written and signed, but ambiguous,guaranty, parol evidence is admissible to clarify it (see e.g. Sound Distrib. Corp. vRichmond, 213 AD2d 178, 179 [1st Dept 1995], lv denied 86 NY2d 702[1995]; Korff v Corbett, 18AD3d 248, 251 [1st Dept 2005]).
The lease to which the guaranty refers says that defendant Salsberg is the guarantor.The guaranty consistently states that Salsberg is the guarantor. Although it also refers totenant as the guarantor and it is signed by both defendants, when reading the guarantyand the lease together, Salsberg is certainly not entitled to summary judgment (seee.g. White Rose Food v Saleh, 99 NY2d 589, 591 [2003]).
Defendant Camaj is also not entitled to summary judgment. Evidence that plaintiff'sagent insisted that he sign the guaranty because he was a principal of the tenant raises anissue of fact as to whether Camaj was meant to be a guarantor (see Schonberger vCulbertson, 231 App Div 257, 258-259 [1st Dept 1931]). Camaj's argument that theguaranty is not binding on him because he signed it by mistake and the parties did notintend for him to be bound is unavailing. His signature on the guaranty is evidence of hisintent to be bound by its terms (People v Inserra, 4 NY3d 30, 33 [2004]) and he does notallege fraud or wrongdoing by plaintiff (Da Silva v Musso, 53 NY2d 543, 550[1981]).[*2]
Salsberg's cross claim alleging that if theguaranty is enforceable against him, he is entitled to contribution from Camaj, should bedismissed. Salsberg did not oppose dismissal of the cross claim either before the motioncourt or on appeal.
Salsberg's counterclaim is not barred by res judicata. In the prior action fornon-payment of rent commenced by landlord, the court expressly reserved defendant'sright to maintain the instant action (1626 Second Ave., LLC v Notte Rest. Corp., 27 Misc 3d138[A], 2010 NY Slip Op 50910[U] [App Term, 1st Dept 2010]; see Parker vBlauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]). Nor is the counterclaimbarred by collateral estoppel. Whether plaintiff violated the lease by failing to provide aletter of no objection in a timely manner was neither necessarily decided nor material inthe prior proceeding (id.). Concur—Friedman, J.P., Sweeny, Renwick,Richter and Román, JJ. [Prior Case History: 34 Misc 3d 1229(A), 2012 NYSlip Op 50287(U).]