Ameritel Management, Inc. v. Tanvir — 128 A.D.3d 627

Majority

p. 627

Ameritel Management, Inc., Respondent, v Shahid Tanvir, Appellant.

[8 NYS3d 412]

In an action to recover on a personal guaranty, the defendant appeals from a judgment of the Supreme Court, Kings County (Baily-Schiffman, J.), dated December 12, 2013, which, after a nonjury trial, and upon the granting of the plaintiffs motion pursuant to CPLR 4401 for judgment as a matter of law made at the close of evidence, is in favor the plaintiff and against him in the principal sum of $63,768.65.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly granted the plaintiffs motion pursuant to CPLR 4401 for judgment as a matter of law made at the close of evidence. “To be awarded judgment as a matter of law pursuant to CPLR 4401, the moving party has the burden of showing that there is no rational process by which

p. 628

the jury could find in the nonmoving party’s favor. The nonmoving party’s evidence must be accepted as true, and the nonmoving party is entitled to every favorable inference which can reasonably be drawn from the evidence presented at trial” (Durkin v Long Is. Power Auth., 37 AD3d 400 , 401 [2007] [citations omitted]). The plaintiff established its cause of action to recover on a personal guaranty (cf. Barnaba Realty Group, LLC v Solomon, 121 AD3d 730 , 731 [2014]; TD Bank, N.A. v Clinton Ct. Dev., LLC, 105 AD3d 1032 , 1034-1035 [2013]). The language of the guaranty bars the defendant from asserting defenses to the enforcement of the guaranty or the underlying management agreement (see Barnaba Realty Group, LLC v Solomon, 121 AD3d at 731 ; Sterling Natl. Bank v Biaggi, 47 AD3d 436 , 436-437 [2008]; Raven El. Corp. v Finkelstein, 223 AD2d 378 , 378 [1996]; Harrison Ct. Assoc. v 220 Westchester Ave. Assoc., 203 AD2d 244 , 244-245 [1994]; Preferred Equities Corp. v Ziegelman, 190 AD2d 784 , 784 [1993]).

The defendant’s remaining contentions, including those regarding his motions seeking dismissal of the complaint, are either without merit or not properly before this Court. Mastro, J.P., Leventhal, Maltese and Duffy, JJ., concur.

Cases cited

Durkin v. Long Island Power Authority 37 AD3d 400 N.Y. App. Div. 2007-02-06 at 401 p. 628
Barnaba Realty Group, LLC v. Solomon 121 AD3d 730 N.Y. App. Div. 2014-10-08 at 731 p. 628
TD Bank, N.A. v. Clinton Court Development, LLC 105 AD3d 1032 N.Y. App. Div. 2013-04-24 at 1034-1035 p. 628
Sterling National Bank v. Biaggi 47 AD3d 436 N.Y. App. Div. 2008-01-10 at 436-437 p. 628
Raven Elevator Corp. v. Finkelstein 223 AD2d 378 N.Y. App. Div. 1996-01-09 at 378 p. 628
Harrison Court Associates v. 220 Westchester Avenue Associates 203 AD2d 244 N.Y. App. Div. 1994-04-04 at 244-245 p. 628
Preferred Equities Corp. v. Ziegelman 190 AD2d 784 N.Y. App. Div. 1993-02-16 at 784 p. 628