U.S.B.M. Realty Co., Inc. v Studio MacBeth, Inc.

U.S.B.M. Realty Co., Inc. v Studio MacBeth, Inc. 2007 NY Slip Op 09880 [46 AD3d 317] December 13, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

U.S.B.M. Realty Co., Inc., Respondent,
v
Studio MacBeth, Inc., Defendant, and Ray Downing, Appellant.

—[*1] Law Offices of Robert J. Marvin, Jr., Pawling (Robert J. Marvin, Jr. of counsel), for appellant.

Robert S. Starr, P.C., New York City (Susan R. Nudelman of counsel), for respondent.

Judgment, Supreme Court, New York County (Rosalyn Richter, J.), entered September 27, 2006, which, to the extent appealed from, awarded plaintiff $30,066.68, plus interest and costs, as against defendant Ray Downing, unanimously affirmed, with costs.

The guaranty at issue, which is to be strictly construed (see White Rose Food v Saleh, 99 NY2d 589, 591 [2003]), unambiguously provided that in the event the corporate defendant exercised its right to terminate its 10-year lease so long as certain conditions were satisfied, including the tenant's forfeiture of the security deposit and payment of all rent and additional rent due, defendant guarantor's obligation would be limited to the equivalent of four months' rent. To find, as defendant urges, that under such circumstances he would have no obligation at all would be to impermissibly "excise terms or distort the meaning of those used to make a new contract for the parties" (Kailasanathan v Mysorekar, 234 AD2d 425, 426 [1996]). Defendant's strained, piecemeal reading of the challenged guaranty language fails to create ambiguity where none exists in the instrument itself (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 163 [1990]). Concur—Tom, J.P., Andrias, Gonzalez and Sweeny, JJ.