| Ameritel Mgt., Inc. v Tanvir |
| 2015 NY Slip Op 03794 |
| Decided on May 6, 2015 |
| Appellate Division, Second 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 May 6, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
JOHN M. LEVENTHAL
JOSEPH J. MALTESE
COLLEEN D. DUFFY, JJ.
2014-01214
(Index No. 500330/12)
v
Shahid Tanvir, appellant.
Certain & Zilberg, PLLC, New York, N.Y. (Gary Certain of counsel), for appellant.
Peter M. Levine, New York, N.Y., for respondent.
DECISION & ORDER
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 plaintiff's 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 plaintiff's 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 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 [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; TD Bank, N.A. v Clinton Ct. Dev., LLC, 105 AD3d 1032, 1034-1035). 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; Raven El. Corp. v Finkelstein, 223 AD2d 378, 378; Harrison Ct. Assoc. v 220 Westchester Ave. Assoc., 203 AD2d 244, 244-245; Preferred Equities Corp. v Ziegelman, 190 AD2d 784, 784).
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.
ENTER:Aprilanne Agostino
Clerk of the Court