| Plaza Tower LLC v Ruth's Hospitality Group, Inc. |
| 2015 NY Slip Op 02214 |
| Decided on March 19, 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 March 19, 2015
Mazzarelli, J.P., DeGrasse, Richter, Feinman, JJ.
14570 100279/13
v
Ruth's Hospitality Group, Inc., formerly known as Ruth's Chris Steak House, Inc., Defendant-Respondent.
Rosenberg & Estis, P.C., New York (Jason R. Davidson and Dani Schwartz of counsel), for appellant.
Herrick, Feinstein LLP, New York (John P. Sheridan of counsel), for respondent.
Order, Supreme Court, New York County (Peter H. Moulton, J.), entered September 15, 2014, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on its claim for air conditioning charges, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Defendant's defense of overcharges is barred by its unconditional guaranty and waiver of defenses (see Citibank v Plapinger, 66 NY2d 90, 94-95 [1985]; LFR Collections LLC v Blan Law Offices, 117 AD3d 486 [1st Dept 2014]; Red Tulip, LLC v Neiva, 44 AD3d 204, 209-213 [1st Dept 2008], lv dismissed 10 NY3d 741 [2008]). Defendant's reliance on Walcutt v Clevite Corp. (13 NY2d 48 [1963]), which recognized failure of consideration as a defense to enforcement of a guaranty, is misplaced; the guaranty in Walcutt was not unconditional and did not contain a waiver of defenses (see Harrison Ct. Assoc. v 220 Westchester Ave. Assoc., 203 AD2d 244 [2d Dept 1994]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 19, 2015
CLERK