300 Park Ave., Inc. v Café 49, Inc.

300 Park Ave., Inc. v Café 49, Inc. 2011 NY Slip Op 08640 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
Mazzarelli, J.P., Andrias, Friedman, Catterson, Freedman, JJ.
6159 113795/09

[*1]300 Park Avenue, Inc., Plaintiff-Respondent,

v

Café 49, Inc., et al., Defendants-Appellants.




Law Office of Milton D. Ottensoser, New York (Milton D.
Ottensoser of counsel), for appellants.
Greenberg Traurig, LLP, New York (Kenneth A. Philbin of
counsel), for respondent.

Order, Supreme Court, New York County (Emily J. Goodman, J.), entered September 10, 2010, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on the second cause of action as against defendant Young Dai Lee also known as Yong Dai Lee, unanimously affirmed, with costs.

The motion court properly found that Lee is personally liable for the post-judgment damages sought in the second cause of action pursuant to the terms of the guaranty he executed in June 1998, as well as the guaranty he subsequently executed in conjunction with a so-ordered stipulation.

In the initial guaranty, Lee unconditionally guaranteed defendant Café 49, Inc.'s "full and timely payment of all base rent, additional rent and all other sums payable by Tenant under the Lease during or attributable to any part of the Term." The guaranty further provided that the "Term" would end on the day after Café 49 completely vacated the premises, removed substantially all of its property, and delivered possession "together with all keys thereto." It is undisputed that the last condition was never satisfied and, thus, the motion court properly found Lee liable for damages until the end of the "Term," June 30, 2010, as set forth by the lease. We also reject defendants' substantial compliance argument. Defendants failed to satisfy all three conditions as required by the guaranty. The terms were unambiguous. The interpretation of the terms presented a question of law for the court, which accorded those terms their plain and ordinary meaning (see White v Continental Cas. Co., 9 NY3d 264, 267 [2007]). Thus, contrary to defendants' contention, there is no question of fact regarding
the interpretation of the guaranty.

We have considered defendants' remaining contentions and find them unavailing.

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

ENTERED: NOVEMBER 29, 2011

CLERK