Thirty-One Co. v Forino

Thirty-One Co. v Forino 2006 NY Slip Op 09306 [35 AD3d 235] December 12, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

Thirty-One Co., Appellant-Respondent,
v
Luigi Forino et al., Respondents-Appellants. Thirty-One Co., Appellant, v Luigi Forino et al., Respondents.

—[*1]

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered September 2, 2005, which, to the extent appealed from as limited by the briefs, granted so much of plaintiff's motion for summary judgment against defendant Forino on his guaranty for unpaid rent, and denied so much of that motion as sought attorneys' fees from Forino, and order, same court and Justice, entered March 29, 2006, which, upon reargument, granted limited fees and expenses against Forino, to be determined at inquest, unanimously modified, on the law, plaintiff's motions denied in their entirety with respect to relief against Forino, and upon a search of the record, summary judgment granted to Forino, and otherwise affirmed, with costs in favor of defendant Forino payable by plaintiff. The Clerk is directed to enter judgment dismissing the complaint as against Forino.

The plain wording of the guaranty agreement provided that Forino was not to be a guarantor of the tenant's obligations under the lease, and that Forino would have no obligation or liability under the agreement if the tenant vacated the demised premises prior to default. It is undisputed that there was no holdover tenancy here, thus entitling Forino to summary dismissal (see Preamble Props. v Woodard Antiques Corp., 293 AD2d 330 [2002]; L & B 57th St., Inc. v E.M. Blanchard, Inc., 143 F3d 88, 93 [2d Cir 1998]). [*2]

We have considered the parties' remaining contentions for affirmative relief and find them unavailing. Concur—Saxe, J.P., Sullivan, Williams, Sweeny and Malone, JJ.