NEXBANK SSB v. SOFFER (2015)

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered June 2, 2014, which denied defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

The motion court correctly concluded that Nevada law applies to the definition of “lien,” as found in the guaranty. The guaranty provides that the definition is to be drawn from the loan agreement, which in turn provides that “lien” is to be construed in accordance with Nevada law.

Defendants triggered the guaranty when they filed a lis pendens on the property, since the lis pendens falls within the definition of lien as an “encumbrance” under Nevada law (see e.g. Uranga v. Montroy Supply Co. of Nevada, 281 P3d 1227, *2 [Nev 2009] [“Uranga encumbered Wojna's personal residence with a notice of lis pendens”; Levinson v. Eighth Jud. Dist. Ct., 109 Nev 747, 752, 857 P.2d 18, 21 [1993] [by placing a lis pendens on it, “Read is now attempting to encumber the property”]; see also Guertin v. OneWest Bank, FSB, 2012 WL 3133736, *3, 2012 U.S. Dist LEXIS 106244, *7 [D Nev 2012] [expunging “lis pendens encumbering the property”] ).

By explicitly agreeing in the guaranty that, notwithstanding any other occurrence whatsoever, the only defense to their obligations thereunder would be the full and final payment and satisfaction of their guaranteed obligations, including the payment of plaintiff's attorneys' fees, defendants waived the defense of res judicata (see Stoner v. Culligan, Inc., 32 A.D.2d 170 [3d Dept 1969] ).