404 Park Partners, L.P. v Lerner

404 Park Partners, L.P. v Lerner 2010 NY Slip Op 06216 [75 AD3d 481] July 27, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 1, 2010

404 Park Partners, L.P., Respondent,
v
Jack Lerner et al., Defendants, and Anita Grossberg, Appellant.

—[*1] Auciello Law Group, P.C., Brooklyn (Anthony J. Auciello of counsel), for appellant.

Ephron-Mandel Albin & Howard, L.L.P., New York (Melissa Ephron-Mandel of counsel), for respondent.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered February 17, 2010, which, to the extent appealed from, granted plaintiff summary judgment against defendant Grossberg, unanimously reversed, on the law, without costs, and plaintiff's motion denied with respect to that defendant.

Defendants were guarantors of the tenant's obligations to landlord plaintiff. Defendants Miller and Grossberg signed a guaranty in connection with the lease extension in 2003. In 2005, when the lease was again extended under terms that significantly escalated the rent, the guaranty was then signed by defendants Miller and Lerner.

A guaranty of a tenant's obligations under a lease must be strictly interpreted in order to assure its consistency with the lease terms to which the guarantor actually consented. Since Grossberg did not sign the 2005 guaranty, and the increase in rent and additional financial terms changed the risk assumed in her 2003 guaranty, the IAS court erred in concluding, as a matter of law, that her obligation under the 2003 guaranty continued through the term of the 2005 lease (Lo-Ho LLC v Batista, 62 AD3d 558 [2009]). Whether that obligation survives the most recent lease extension, under the terms of Grossberg's original guaranty, remains an issue of fact for trial (cf. White Rose Food v Saleh, 99 NY2d 589 [2003]). Concur—Gonzalez, P.J., Sweeny, Richter, Abdus-Salaam and RomÁn, JJ.