Palm Beach Mortgage Management, LLC v. Red Tulip, LLC
| Decision Date | 26 May 2005 |
| Docket Number | 6182. |
| Citation | 795 N.Y.S.2d 559,18 A.D.3d 379,2005 NY Slip Op 04314 |
| Parties | PALM BEACH MORTGAGE MANAGEMENT, LLC, Respondent, v. RED TULIP, LLC, et al., Defendants, and WALTER C. ANDERSON, Appellant. (And Another Action.) JUNIA HISSA NEIVA, Third-Party Plaintiff, v. DONALD A. BURNS, et al., Third-Party Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Defendant Anderson failed to show a likelihood of success on the merits of his defenses, given the language in the guaranty at issue (St. Paul Fire & Mar. Ins. Co. v York Claims Serv., 308 AD2d 347 [2003]). The guaranty specified that Anderson would "remain liable as principal until the full amount of the principal owed pursuant to the Loan Documents, with interest . . . shall have been fully paid . . . notwithstanding any act, omission, or thing which might otherwise operate as a legal or equitable discharge of the Guarantor." Furthermore, the guaranty was noted to be "absolute and unconditional in all respects and shall at all times be valid and enforceable irrespective of any other agreements or circumstances of any nature whatsoever which might otherwise constitute a defense to this Guaranty and the obligations of the Guarantor under this Guaranty or the obligations of any other person or party (including, without limitation, the Debtor) relating to this Guaranty." Similarly, Anderson "absolutely, unconditionally and irrevocably" waived his right to assert "any defense, set-off, counterclaim or cross claim of any nature whatsoever with respect to this Guaranty . . . except the defense of actual payment." Notwithstanding Anderson's claims to the contrary, this language was sufficiently specific to constitute a waiver of the defenses pleaded herein. Accordingly, the court properly denied the motion for a preliminary injunction (Gannett Co. v Tesler, 177 AD2d 353 [1991]).
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