| Solco Plumbing Supply, Inc. v Hart |
| 2014 NY Slip Op 08626 [123 AD3d 798] |
| December 10, 2014 |
| Appellate Division, Second Department |
[*1]
| Solco Plumbing Supply, Inc., Appellant, v GaryHart, Respondent. |
The Law Firm of Elias C. Schwartz, PLLC, Great Neck, N.Y. (Melissa Bassin ofcounsel), for appellant.
Hagney, Quatela, Hargraves & Mari PLLC, Hauppauge, N.Y. (Scott J.Kreppein of counsel), for respondent.
In an action to recover on a personal guaranty, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Brown, J.), entered October 3, 2012, which grantedthe defendant's motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint,and denied the plaintiff's cross motion for summary judgment on the complaint.
Ordered that the order is affirmed, with costs.
In September 1996, the defendant, Gary Hart, who was then the vice president ofGotham Plumbing and Sprinkler Corporation (hereinafter Gotham), and had a financialinterest therein, executed a credit application and agreement (hereinafter the creditagreement) on behalf of Gotham on a preprinted form provided to him by the plaintiff,Solco Plumbing Supply, Inc. (hereinafter Solco). Pursuant to the credit agreement, Solcoagreed to sell and deliver goods to Gotham on credit. The form recited, in pertinentpart:
"PERSONAL GUARANTEE OF PAYMENT AND AGREEMENT. . .
"the undersigned, being financially interested in the above customer, hereby,jointly and severally, unconditionally, guarantee payment when due of all indebtednessof the above customer includi[*2]ng any amountcurrently due to [the plaintiff] as such indebtedness may exist from time to time togetherwith interest and/or finance charges" (emphasis added).
The guaranty contained no provision requiring the defendant to notify Solco in theevent that his financial interest in Gotham was terminated.
In December 2005, the defendant sold his interest in Gotham. Thereafter, betweenAugust 18, 2009, and September 10, 2010, Solco sold plumbing materials andaccessories to Gotham with an alleged value, including sales taxes where applicable, inthe sum of $188,348.55. In April 2012, Solco commenced the instant action against thedefendant to recover $188,348.55, plus interest, costs, and an attorney's fee.
The defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) and(7) on the ground that, at the time the debt was incurred, he no longer had a financialinterest in Gotham. In opposition, Solco argued that the phrase "being financiallyinterested," as set forth in the credit agreement, was merely descriptive language meant toidentify the guarantor's relationship with Gotham as of the date that the agreement wasexecuted, and was not meant in any way to limit the liability of that guarantor in theevent that he or she no longer had a financial interest in Gotham, Solco's customer.
In the order appealed from, the Supreme Court granted the defendant's motion on theground that the documentary evidence that he submitted clearly established that, afterDecember 21, 2005, he no longer had an interest in Gotham and that, as such, he couldnot be held personally liable in connection with the guaranty. With respect to Solco'scontention that the phrase "being financially interested" in Gotham, as set forth in thecredit agreement, was merely descriptive, the Supreme Court rejected that contention,noting that "[a] guaranty is to be interpreted in the strictest manner" (White RoseFood v Saleh, 99 NY2d 589, 591 [2003]). The plaintiff appeals, and we affirm.
The terms of a guaranty are to be strictly construed (see id. at 591), and aguarantor should not be found liable beyond the express terms of the guaranty (see Lo-Ho LLC v Batista, 62AD3d 558, 559 [2009]; 665-75 Eleventh Ave. Realty Corp. v Schlanger, 265AD2d 270, 271 [1999]). Moreover, since the language in question was part of a formcontract prepared by Solco, any alleged ambiguity should be interpreted against Solco(see Maines Paper & FoodServ., Inc. v Boulevard Burgers Corp., 52 AD3d 1150, 1152 [2008];International Mar. Invs. & Mgt. Corp. v Wirth, 245 AD2d 544 [1997]).[*3]Further, in determining the meaning of contractuallanguage, "a court should not read a contract so as to render any term, phrase, orprovision meaningless or superfluous" (Givati v Air Techniques, Inc., 104 AD3d 644, 645 [2013]),but should give effect to all of the contract's provisions (see God's Battalion of PrayerPentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371, 374 [2006]).
Since the credit agreement already required the defendant to provide his name,address, social security number, and position with Gotham, the need for any additionaldescriptive language would have been superfluous, and we reject Solco's contrarysuggestion that the language was included solely to further identify or describe thedefendant. Thus, the terms of the guaranty in dispute here, when construed strictly andinterpreted in the light most favorable to the defendant, conditioned the liability of asignatory under the guaranty upon the signatory's being "financially interested" inGotham at the time that any purported liability under the guaranty arose. Thedocumentary evidence submitted by the defendant established that he sold his interest inGotham in December 2005. Accordingly, at the time that Gotham purchased the goods atissue on credit from Solco, the defendant no longer had a financial interest in Gothamand, thus, could not be held personally liable for Gotham's debt to Solco under the termsof the guaranty. Since the authenticity of the defendant's documentary evidence that heno longer had an interest in Gotham at the time the debt was incurred is undisputed, thedefendant's motion to dismiss the complaint was properly granted.
Solco's remaining contentions are without merit. The defendant's remainingcontentions need not be addressed in light of our determination. Skelos, J.P., Roman,Hinds-Radix and LaSalle, JJ., concur.