| Wider Consol., Inc. v Tony Melillo, LLC |
| 2013 NY Slip Op 04597 [107 AD3d 883] |
| June 19, 2013 |
| Appellate Division, Second Department |
| Wider Consolidated, Inc., Respondent, v TonyMelillo, LLC, et al., Appellants. |
—[*1] Ralph A. Hummel, Woodbury, N.Y., for respondent.
In an action, inter alia, to recover on an account stated and to recover damages forbreach of a personal guaranty, the defendants appeal, as limited by their brief, from somuch of an order of the Supreme Court, Queens County (Taylor, J.), dated January 26,2012, as denied that branch of their cross motion which was for summary judgmentdismissing the fifth cause of action in the amended complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action, inter alia, to recover on an account stated and torecover damages for breach of a personal guaranty allegedly executed by the defendantTony Melillo, the managing member of the defendant Tony Melillo, LLC. The SupremeCourt denied that branch of the defendants' cross motion which was for summaryjudgment dismissing the fifth cause of action, which was to recover on the personalguaranty.
A written agreement that is complete, clear, and unambiguous on its face must beenforced so as to give effect to the meaning of its terms and the reasonable expectationsof the parties, and the court should determine the intent of the parties from within thefour corners of the contract without looking to extrinsic evidence to create ambiguities(see South Rd. Assoc., LLC vInternational Bus. Machs. Corp., 4 NY3d 272, 277 [2005]; W.W.W. Assoc.v Giancontieri, 77 NY2d 157, 162 [1990]; Kimso Apts., LLC v Gandhi, 104 AD3d 742 [2013]; Red-Kap Sales, Inc. v NorthernLights Energy Prods., Inc., 94 AD3d 1281, 1281-1282 [2012]; Belle Harbor Wash. Hotel, Inc. vJefferson Omega Corp., 17 AD3d 612, 612 [2005]). An agreement "isunambiguous if the language it uses has 'a definite and precise meaning, unattended bydanger of misconception in the purport of the [agreement] itself, and concerning whichthere is no reasonable basis for a difference of opinion' " (Computer Assoc. Intl., Inc. v U.S.Balloon Mfg. Co., Inc., 10 AD3d 699, 699 [2004], quoting Breed vInsurance Co. of N. Am., 46 NY2d 351, 355 [1978]; see Belle Harbor Wash.Hotel, Inc. v Jefferson Omega Corp., 17 AD3d at 612).
Furthermore, "[a] guaranty is a contract, and in interpreting it we look first to thewords the parties used" (LouisDreyfus Energy Corp. v MG Ref. & Mktg., Inc., 2 NY3d 495, 500 [2004]; see G3-Purves St., LLC vThomson Purves, LLC, 101 AD3d 37, 40 [2012]). "A guaranty must beconstrued[*2]'in the strictest manner' " (Arlona Ltd. Partnership v 8th ofJan. Corp., 50 AD3d 933, 933 [2008], quoting White Rose Food vSaleh, 99 NY2d 589, 591 [2003]), and a guarantor should be bound to the expressterms of the written guaranty (see 665-75 Eleventh Ave. Realty Corp. vSchlanger, 265 AD2d 270, 271 [1999]; Walker v Roth, 90 AD2d 847[1982]).
The document at issue, prepared by the plaintiff, is entitled "Personal Guaranty." The"Guarantor" is defined as "Tony Melillo." There is language in the body of the documentindicating that the guarantor is personally guaranteeing the payment and performance ofthe obligations of the "Importer." The "Importer" is variously defined in the document aseither "Tony Melillo, LLC," or as "Tony Melillo." Thus, there is an ambiguity in thedocument as to whose obligations Melillo was guaranteeing.
Inasmuch as the affidavits submitted on the cross motion contain conflictingaccounts of the parties' intentions and understanding as to whose obligations Melillo waspurporting to guarantee, the defendants failed to establish their prima facie entitlement tojudgment as a matter of law dismissing the fifth cause of action. Thus, the SupremeCourt properly denied that branch of their cross motion (see Williams v Village ofEndicott, 91 AD3d 1160, 1163 [2012]; Shook v Blue Stores Corp., 30 AD3d 811, 812-813[2006]). Skelos, J.P., Angiolillo, Roman and Hinds-Radix, JJ., concur.