Opinion
03-19-2015
PLAZA TOWER LLC, Plaintiff–Appellant, v. RUTH'S HOSPITALITY GROUP, INC., formerly known as Ruth's Chris Steak House, Inc., Defendant–Respondent.
Rosenberg & Estis, P.C., New York (Jason R. Davidson and Dani Schwartz of counsel), for appellant. Herrick, Feinstein LLP, New York (John P. Sheridan of counsel), for respondent.
Rosenberg & Estis, P.C., New York (Jason R. Davidson and Dani Schwartz of counsel), for appellant.
Herrick, Feinstein LLP, New York (John P. Sheridan of counsel), for respondent.
Opinion
Order, Supreme Court, New York County (Peter H. Moulton, J.), entered September 15, 2014, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on its claim for air conditioning charges, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Defendant's defense of overcharges is barred by its unconditional guaranty and waiver of defenses (see Citibank v. Plapinger, 66 N.Y.2d 90, 94–95, 495 N.Y.S.2d 309, 485 N.E.2d 974 [1985] ; LFR Collections LLC v. Blan Law Offices, 117 A.D.3d 486, 985 N.Y.S.2d 496 [1st Dept.2014] ; Red Tulip, LLC v. Neiva, 44 A.D.3d 204, 209–213, 842 N.Y.S.2d 1 [1st Dept.2008], lv. dismissed 10 N.Y.3d 741, 853 N.Y.S.2d 283, 882 N.E.2d 896 [2008] ). Defendant's reliance on Walcutt v. Clevite Corp., 13 N.Y.2d 48, 241 N.Y.S.2d 834, 191 N.E.2d 894 [1963], which recognized failure of consideration as a defense to enforcement of a guaranty, is misplaced; the guaranty in Walcutt was not unconditional and did not contain a waiver of defenses (see Harrison
Ct. Assoc. v. 220 Westchester Ave. Assoc., 203 A.D.2d 244, 609 N.Y.S.2d 653 [2d Dept.1994] ).
MAZZARELLI, J.P., DeGRASSE, RICHTER, FEINMAN, JJ., concur.