Opinion
November 22, 1994
Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).
Assuming in plaintiffs' favor that New York does recognize a right to equitable exoneration between coguarantors in the absence of a special contract, i.e., a right to contribution that arises before payment of more than one's proportionate share of a joint obligation (cf., Empire Trust Co. v. Bartley Co., 258 App. Div. 249, 251), we would nevertheless dismiss the complaint. Plaintiffs have paid only a fraction of their proportionate share of the underlying note, and have allowed two unappealed, now-unappealable and entirely enforceable judgments on the note to be entered against them, one in State court that was fully litigated and the other a consent judgment in Federal court in New Jersey pursuant to a settlement agreement calling for installment payments. To allow exoneration here would be to vitiate both of these judgments without appeal, and to force the creditor to pursue separate remedies against plaintiffs' coguarantors when plaintiffs have not even rendered faithful compliance with their own settlement agreement. Plaintiffs' cause of action for contribution was properly dismissed since, as they effectively concede, they cannot obtain contribution in the absence of payment in excess of their proportionate share (see, Falb v. Frankel, 73 A.D.2d 930, 931).
Concur — Ross, J.P., Asch, Rubin, Nardelli and Tom, JJ.