Spector v. Wendy, 2007-05714.

• Decision Date: 17 June 2008
• Docket Number: 2007-05714.
• Citation: 858 N.Y.S.2d 898,52 A.D.3d 688,2008 NY Slip Op 05678
• Parties: GILBERT SPECTOR et al., Appellants, v. HOWARD WENDY, Respondent.
• Court: New York Supreme Court — Appellate Division

52 A.D.3d 688

858 N.Y.S.2d 898

2008 NY Slip Op 05678

GILBERT SPECTOR et al., Appellants, v. HOWARD WENDY, Respondent.

2007-05714.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided June 17, 2008.

In an action to recover an attorney's fee as provided under a guarantee, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Rudolph, J.), dated May 15, 2007, which denied their motion for summary judgment on the complaint and granted the defendant's cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

While the plaintiffs failed to establish a prima facie showing of their entitlement to summary judgment on the complaint, the defendant met his burden of showing his entitlement to judgment as a matter of law dismissing the complaint (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The clear language of the subject guarantee limited the imposition of liability for an attorney's fee to "each Guarantor against whom this guarantee or any obligation or right hereunder is sought to be enforced, declared or adjudicated" (cf. Famolaro v Crest Offset, Inc., 24 AD3d 604, 605 [2005]), which did not include the defendant. In opposition to the defendant's prima facie showing, the plaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d at 324).

The parties' remaining contentions are either without merit or not properly before the Court.

Rivera, J.P., Ritter, Miller and Dillon, JJ., concur.