| PC 444, LLC v Priority Pediatrics, PLLC |
| 2015 NY Slip Op 08153 [133 AD3d 645] |
| November 12, 2015 |
| Appellate Division, Second Department |
[*1]
| PC 444, LLC, et al., Appellants, v PriorityPediatrics, PLLC, et al., Respondents. |
Mark L. Lubelsky, New York, N.Y., for appellants.
Lewisohn & Lewisohn, Lynbrook, N.Y. (Jeffrey L. Lewisohn of counsel), forrespondents.
In an action to recover damages for breach of contract, the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Nassau County(Sher, J.), entered September 26, 2013, as denied that branch of their motion which wasfor summary judgment, in effect, holding the defendant Robert Van Amerongenpersonally liable as a guarantor of the obligations of the defendant Priority Pediatrics,PLLC, under a judgment of the same court dated March 22, 2013.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiffs commenced this action to recover damages for breach of contract afterthe defendant Priority Pediatrics, PLLC (hereinafter Priority Pediatrics), defaulted on itsobligations under a lease. After the action was commenced, the plaintiffs and PriorityPediatrics entered into an agreement in which Priority Pediatrics, inter alia, conceded thatit had "failed to pay installments of rent and other payments due under the Lease whendue in the amount of $228,340.36 through January, 2013 and continuing." The principalof Priority Pediatrics, the defendant Robert Van Amerongen, signed the agreement bothas Priority Pediatrics' representative, and personally as guarantor of Priority Pediatrics'obligations under the agreement. The parties' attorneys subsequently executed astipulation which incorporated the agreement by reference, and awarded the plaintiffs ajudgment against Priority Pediatrics in the principal sum of $228,340.36. There was nomention of Van Amerongen in the stipulation, or in the judgment which was entered onthe stipulation. The plaintiffs later moved for summary judgment, inter alia, in effect,holding Van Amerongen personally liable as a guarantor of the obligations of PriorityPediatrics under the judgment. The Supreme Court denied that branch of the motion, andthe plaintiffs appeal.
A guaranty must be construed "in the strictest manner" (White Rose Food vSaleh, 99 NY2d 589, 591 [2003]; see Wider Consol., Inc. v Tony Melillo, LLC, 107 AD3d883, 884 [2013]), "and a guarantor should not be found liable beyond the expressterms of the guaranty" (SolcoPlumbing Supply, Inc. v Hart, 123 AD3d 798, 800 [2014]; see G3-Purves St., LLC v ThomsonPurves, LLC, 101 AD3d 37, 40 [2012]). Here, construing the terms of theagreement strictly, alone and in conjunction with [*2]thesubsequent stipulation, it cannot be said as a matter of law that the agreement wasintended to hold Van Amerongen personally liable as a guarantor of the obligations ofPriority Pediatrics under the judgment. Accordingly, the plaintiffs failed to meet theirprima facie burden in support of that branch of their motion which was for summaryjudgment, in effect, holding Van Amerongen personally liable as a guarantor of theobligations of Priority Pediatrics under the judgment (see White Rose Food vSaleh, 99 NY2d at 591; Wider Consol., Inc. v Tony Melillo, LLC, 107 AD3dat 884).
In light of the plaintiffs' failure to meet their prima facie burden, it is unnecessary toreview the sufficiency of the defendants' opposing papers (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]).
Accordingly, the Supreme Court properly denied that branch of the plaintiffs' motionwhich was for summary judgment, in effect, holding Van Amerongen personally liable asa guarantor of the obligations of Priority Pediatrics under the judgment. Dillon, J.P.,Sgroi, Cohen and LaSalle, JJ., concur.