Opinion
15263 Index No. 657133/19 Case No. 2021–00397
02-08-2022
ARBOR–MYRTLE BEACH PE LLC, Plaintiff–Respondent, v. Jacob FRYDMAN, Defendant–Appellant.
Jacob Frydman, Hyde Park, appellant pro se. Morrison Cohen LLP, New York (Jay R. Speyer of counsel), for respondent.
Jacob Frydman, Hyde Park, appellant pro se.
Morrison Cohen LLP, New York (Jay R. Speyer of counsel), for respondent.
Manzanet–Daniels, J.P., Oing, Gonza´lez, Shulman, Higgitt, JJ.
Appeal from order, Supreme Court, New York County (O. Peter Sherwood, J.), entered on or about January 27, 2021, which granted plaintiff's motion for summary judgment in lieu of complaint and denied defendant's motion for joinder of additional parties and to interplead a nonparty, deemed appeal from judgment ( CPLR 5501[c] ), same court (Robert R. Reed, J.), entered May 3, 2021, in favor of plaintiff, and judgment unanimously affirmed, with costs.
Plaintiff demonstrated its entitlement to summary judgment by establishing the existence of a guaranty executed by defendant in connection with an agreement requiring nonparty United 945 82nd Parkway Fee, LLC to make certain payments to plaintiff, and the failure to make a payment called for by its terms (see Gard Entertainment, Inc. v. Country in N.Y., LLC, 96 A.D.3d 683, 683, 948 N.Y.S.2d 42 [1st Dept. 2012] ). Contrary to defendant's contention, recourse to CPLR 3213 was appropriate, since the guaranty was an instrument for the payment of money only ( Cooperatieve Centrale Raiffeisen–Boerenleenbank, B.A., "Rabobank Intl.," N.Y. Branch v. Navarro, 25 N.Y.3d 485, 492, 15 N.Y.S.3d 277, 36 N.E.3d 80 [2015] ; Gard Entertainment, 96 A.D.3d at 683, 948 N.Y.S.2d 42 ). That the guaranty was part of a larger transaction does not, by itself, bar accelerated treatment (see Kirkwood v. Nakhamkin, 169 A.D.2d 693, 693, 565 N.Y.S.2d 75 [1st Dept. 1991] ). The need for limited review of the underlying agreement to establish the obligation and amount of liability also does not affect the availability of CPLR 3213 (see Boland v. Indah Kiat Fin. [IV] Mauritius, 291 A.D.2d 342, 342–343, 739 N.Y.S.2d 122 [1st Dept. 2002] ; Kirkwood, 169 A.D.2d at 693–694, 565 N.Y.S.2d 75 ). In opposition, defendant failed to raise an issue of fact. Defendant waived all defenses to the performance of his obligations under the guaranty (see generally United Orient Bank v. Bao Lee, 223 A.D.2d 500, 637 N.Y.S.2d 96 [1st Dept. 1996] ).
The court correctly denied defendant's motion for joinder and to interplead (see News Ltd. v. Australis Holdings Pty, 293 A.D.2d 276, 277, 742 N.Y.S.2d 190 [1st Dept. 2002] ).