Mitchell v Abrams

Mitchell v Abrams 2011 NY Slip Op 08629 Decided on November 29, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 29, 2011
Saxe, J.P., Friedman, Acosta, DeGrasse, Abdus-Salaam, JJ. 5549- 5550-
110403/08 5550A

[*1]David Mitchell, Plaintiff-Respondent,

v

Steven Abrams, Defendant-Appellant.




Graubard Miller, New York (Edward H. Pomeranz of counsel),
for appellant.
Dobshinsky & Priya, LLC, New York (Neal S. Dobshinsky of
counsel), for respondent.

Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered December 15, 2010, in plaintiff's favor, and bringing up for review an order, same court and Justice, entered December 13, 2010, which denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment in lieu of complaint, unanimously reversed, on the law, without costs, the judgment vacated and the cross motion denied. Appeal from the aforesaid order unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Appeal from order, same court and Justice, entered January 18, 2011, which, to the extent appealed from, denied defendant's order to show cause seeking renewal of plaintiff's motion for summary judgment, unanimously dismissed, without costs, as taken from a nonappealable paper.

Plaintiff seeks summary judgment based on language in a personal guaranty given by defendant, the principal of a nonparty contractor hired by plaintiff. Fairly construed, in context and so as to avoid a commercially unreasonable result (see Greenwich Capital Fin. Prods., Inc. v Negrin, 74 AD3d 413 [2010]; Matter of Lipper Holdings v Trident Holdings, 1 AD3d 170 [2003]), the guaranty provides that defendant will be personally liable for the amount of a deposit that plaintiff "pre-fund[ed]" to the contractor only to the extent plaintiff either is not credited with the full amount of the deposit or does not otherwise receive the full benefit of the deposit. Plaintiff's interpretation, that the guaranty entitles him to the full amount of the deposit if any portion of it is misallocated by the contractor, notwithstanding that portions used for authorized renovation expenses incurred by the contractor were properly credited to his account, would effect a forfeiture by defendant, a result disfavored in the law (see Lyon v Hersey, 103 NY 264, 270 [1886]).

Summary judgment in defendant's favor is precluded by factual issues whether the pre-fund deposit was fully or partially applied to renovation expenses expressly authorized by the guaranty agreement.

No appeal lies from the ex parte order denying defendant's motion for renewal, entered after the court declined to sign defendant's order to show cause seeking such relief (see Naval v [*2]American Arbitration Assn., 83 AD3d 423 [2011]). In any event, defendant offered no new facts, as required, to support his motion for renewal (see Eddine v Federated Dept. Stores, Inc., 72 AD3d 487, 487-488 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 29, 2011

CLERK