

260-261 Madison Ave., LLC v Bower Monte & Greene, P.C. (2016 NY Slip Op 01570)





260-261 Madison Ave., LLC v Bower Monte & Greene, P.C.


2016 NY Slip Op 01570


Decided on March 3, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 3, 2016

Mazzarelli, J.P., Sweeny, Manzanet-Daniels, Gische, JJ.


399 650187/12 590190/12

[*1]260-261 Madison Avenue, LLC, Plaintiff-Appellant,
vBower Monte & Greene, P.C., et al., Defendants, Peter R. Bower, Defendant, Guy A. Lawrence, Defendant-Respondent. [And a Third-Party Action]


Pryor Cashman LLP, New York (Michael H. Levison and Joshua D. Bernstein of counsel), for appellant.
Michael H. Zhu, P.C., New York (Michael H. Zhu of counsel), for respondent.

Judgment, Supreme Court, New York County (Ellen M. Coin, J.), entered October 22, 2014, which, to the extent appealed from as limited by the briefs, dismissed the complaint against defendant Guy A. Lawrence, and brings up for review an order, same court and Justice, entered October 24, 2013, and an amended order, same court and Justice, entered September 12, 2014, which determined that Lawrence was released from his obligations under a guaranty, unanimously affirmed, without costs.
The term "withdraws," as employed in the parties' unambiguous guaranty and interpreted according to its plain meaning, refers to a voluntary act. Because defendants, who are seasoned attorneys, chose not to employ terms such as "involuntarily withdraws," "withdraws for cause," "is terminated" or other similar language, it is reasonable to conclude that they did not intend for an attorney departing the firm under such involuntary circumstances to be considered the first guarantor who "retires or withdraws" under the guaranty (Quadrant Structured Prods. Co., Ltd. v Vertin, 23 NY3d 549, 560 [2014] ["if parties to a contract omit terms ... the inescapable conclusion is that the parties intended the omission"]). Moreover, the guaranty specifically identifies those limited involuntary circumstances that would apply (i.e., death or disability). The fact that the parties did not expand this category to expressly include termination further underscores that they did not intend it to trigger a release from the guaranty (id.).
The court's reading of the lease modification is appropriate, since, by its terms, it does not modify the foregoing terms of the guaranty.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 3, 2016
CLERK


