53rd Street Associates v. Las Americas Communications, Inc.
21 H.C.R. 203A (Sup. Ct. N.Y. Cty. 11/8/93)
We represented: Plaintiff landlord
Diane A. Lebedeff, J.
DECISION and ORDER Plaintiff's motion for summary judgment on its first, third and sixth causes of action against defendant Gutierrez only, and for an appropriate severance, is granted in all respect.
Plaintiff shows that the corporate defendant defaulted upon the obligations sued upon, and that defendant Gutierrez signed a guaranty of those obligations. The obligation consisted of a lease for commercial premises, which the corporate defendant vacated following a judgment of possession and a money judgment for areas, as well as after the issuance of a warrant of eviction. Plaintiff seeks judgment against the guarantor for the amount of that money judgment (first cause of action), subsequent unpaid base and additional rent from the date of the money judgment through December 31, 1992 (third cause of action), and $313.93 expended for cleaning expenses by the landlord after the premises were vacated (sixth cause of action).
In opposition, defendant Gutierrez states that he was not represented by counsel when he executed the guaranty, although the plaintiff and the co-defendants were represented by counsel during the negotiations for and execution of that guaranty. Lack of representation by counsel does not void the guaranty.
Further, defendant Gutierrez has stated no counterclaim nor raises an issue that the guaranty should be rescinded for fraud, misrepresentation, duress, or for any other cognizable cause. His statement that he was informed that the matter was settled is insufficient to raise a triable issue of release or of accord and satisfaction, for there is no formal release –indeed the Civil Court stipulation expressly reserved rights under the lease – and no showing of the essential elements of an accord and satisfaction, which requires proof of knowing acceptance by the creditor of a lesser amount in full satisfaction (Consolidated Edison v. Jet Asphalt, 132 A.D.2d 296 [1st Dept. 1987]), which is also contraindicated by the stipulation. Of course, the guarantor may pursue the obligor for a recovery of any amounts paid by him.
Based upon the foregoing, the motion is granted. Settle order.