231 249 WEST 39 STREET ASSOCIATES v. Sherman Chan, Defendant–Appellant. (2024)

Judgment, Supreme Court, New York County (Nancy M. Bannon, J.) entered January 2, 2024, in plaintiff's favor, and bringing up for review an order, same court and Justice, entered November 17, 2023, which, among other things, granted plaintiff's motion for summary judgment on the claims for breach of defendant Sherman Chan's guaranty and attorneys' fees, unanimously affirmed, without costs.

The motion court properly granted summary judgment to plaintiff under defendant's guaranty of the nonparty tenants' lease.  Although defendant asserts that the lease was terminated by the Civil Court stipulations resolving plaintiff's nonpayment proceeding against the tenants because his guaranty does not require him to pay for amounts incurred during any holdover period, no holdover period occurred here, as the terms of the lease remained in effect under the stipulations' terms.  Moreover, the guaranty provided that defendant was liable for all amounts incurred under the lease through the surrender of the premises, and neither the Civil Court stipulations nor the issuance of the warrant of eviction prohibited the landlord from collecting the amounts due under the lease while the tenants and its assignees remained in possession (see Real Property Actions and Proceedings Law § 749[3]).

Although the stipulations stated that the lease would be “re-instated” upon full compliance with its terms, this did not affect the tenants' payment obligations under the lease, which expressly remained ongoing under those stipulations.  Accordingly, the stipulations did not modify any term or obligation under the lease that would render the guaranty unenforceable here (cf.  Lo–Ho LLC v. Batista, 62 A.D.3d 558, 560, 881 N.Y.S.2d 33 [1st Dept. 2009]).  We also find that plaintiff's ledger reflects that the security deposit was properly applied to the tenants' remaining balance at the end of the lease term.

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