Gansevoort 69 Realty LLC v. Laba ( 2015 )

Gansevoort 69 Realty LLC v Laba (2015 NY Slip Op 06094)

Gansevoort 69 Realty LLC v Laba

2015 NY Slip Op 06094

Decided on July 14, 2015

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 July 14, 2015
Tom, J.P., Friedman, DeGrasse, Richter, Kapnick, JJ.

15196 651010/13

[*1] Gansevoort 69 Realty LLC, Plaintiff-Respondent,

v

Remi Laba, Defendant-Appellant, Vincent Lugonnard-Roche, Defendant.

McCue Sussmane & Zapfel, P.C., New York (Kenneth Sussmane of counsel), for appellant.

Sperber Denenberg & Kahan, P.C., New York (Jacqueline Handel-Harbour of counsel), for respondent.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered February 27, 2014, which, to the extent appealed from as limited by the briefs, granted plaintiff Gansevoort 69 Realty LLC's (Gansevoort 69) motion for summary judgment, and denied defendant Laba's cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

"On a motion for summary judgment to enforce a written guaranty, all that the creditor need prove is an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty" (City of New York v Clarose Cinema Corp. , 256 AD2d 69, 71 [1st Dept 1998]). Plaintiff creditor met its initial burden on the motion with evidence satisfying each of these requisites of its claim.

In opposition, Laba failed to create an issue of fact. Laba claims that the parties entered into an oral agreement to release Laba from any claims arising from the guaranty, provided Laba introduced plaintiff to a buyer that purchased the subject building. Laba's reliance on this purported oral agreement fails in light of the parties' agreement that all modifications to the guaranty were to be in writing, and Laba's failure to point to any performance of the purported oral agreement that is "unequivocally referable to the modification" (Rose v Spa Realty Assoc. , 42 NY2d 338, 343-344 [1977]).

We have considered defendant's remaining contentions, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 14, 2015

CLERK