111-115 Broadway Limited Partnership v. Minter & Gay, etc., et al.

281 A.D.2d 153, 721 N.Y.S.2d 346 (App. Div. 2d Dept. 3/1/01)

We represented: Defendant

Sullivan, P.J., Nardelli, Williams, Saxe and Friedman, JJ.

DECISION and ORDER Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered October 13, 1999, which, in an action to recover unpaid rent, insofar as appealed from, denied plaintiff leave to amend the complaint so as to assert the first and second causes of action against the individual defendants in their capacities as partners of defendant partnership, and judgment, same court and Justice, entered November 9, 2000, awarding plaintiff the principal sum of $282,672.40 against the partnership only, unanimously affirmed, with one bill of costs.

Although an individual partner can be held liable for partnership debts where, as here, the partnership is insolvent and its assets are insufficient to pay its debts (see, Helmsley v. Cohen, 56 A.D.2d 519, 391 N.Y.S.2d 522), here, there was a clear agreement otherwise. The IAS court correctly held that the lease amendment, in which the parties expressly continued the individual defendants' personal guarantee of their personal corporation's lease obligations after the individual defendants' partnership had succeeded the PC as tenant, demonstrated an intent to preserve the liability cap set forth in the guarantee. We have considered and rejected plaintiff's other arguments.