40th Associates v. Alison, Baer Securities, Inc. ( 1995 )

Judgment, Supreme Court, New York County (Diane Lebedeff, J.), entered August 8, 1994, which, upon the granting of plaintiffs motion for partial summary judgment and confirmation of a Referee’s report regarding the defense based on a purported substitute guarantee, awarded judgment in the sum of $369,117.52 plus interest, costs and disbursements, unanimously affirmed, with costs.

Partial summary judgment against the defendant tenant and individual guarantor Britz was properly granted by the IAS Court. Both the tenant, and Britz under his personal guaranty, waived their right to a jury trial with respect to any claims arising under the lease or guarantee and, accordingly, Britz may not complain that he was denied a trial by jury on his claim that a substitute guarantee which would have obviated his liability as an individual guarantor was timely mailed pursuant to the terms of the lease. Additionally, the IAS Court properly referred to the Referee the limited issue as to whether the substitute guarantee had been mailed since a determination of this limited issue would have likely disposed of the case against the individual defendant (see, Trust Co. v Young, 169 AD2d 561). Finally, the Referee’s findings that no such substitute guarantee was ever sent to the plaintiff is supported by the record. We further note that Britz actively participated in the hearing before the Referee and had ample opportunity to raise all claims therein. Concur—Murphy, P. J., Rubin, Ross, Asch and Tom, JJ.