Plaintiff Howard L. Kantor ("Kantor") moves to reargue from so much of this Court's order dated September 18, 2006, which denied his motion for summary judgment in lieu of complaint against Defendants William J. Mesibov ("Mesibov") and Stuart A. Altman ("Altman") and granted Defendants' cross-motion to dismiss the complaint. [*2]

This Court's September 18, 2006 motion decided four motions that were pending in two actions.

The first action is captioned Howard Kantor, Plaintiff against William J. Mesibov, M.D., Stuart A. Altman, M.D. & Jeffrey A. Amer, M.D., P.C. f/k/a Howard L. Kantor, M.D., William J. Mesibov, M.D., Stuart J. Altman, M.D. & Jeffrey A. Amer, M.D, P.C., Defendants. ("Action No. 1"). This action bears Nassau County Index No. 4891/2000.

The second action is captioned Howard L. Kantor, Plaintiff against William J. Mesibov, Stuart A. Altman and Jeffrey A. Amer ("Amer"), Defendants. ("Action No. 2"). This action bears Nassau County Index No. 2365/2006.

Mesibov and Altman, Defendants in Action No. 1, moved to vacate a judgment entered against them or to correct the interest calculations. Amer had also moved to modify the judgment in Action No. 1. Although these motions were decided by the Court's September 18, 2006 order, the issues raised in these motions as related to Mesibov and Altman had previously been decided by Stipulation whereby the parties had agreed to a correction of the interest calculation. Action No. 1 had previously been discontinued against Amer.

Action No. 2 was commenced as a motion for summary judgment in lieu of complaint. CPLR 3213. Mesibov and Altman cross-moved to dismiss the action.Amer also cross-moved to dismiss this action.

Prior to the submission of the motions, Actions No. 1 and 2 were dismissed as to Amer.

The Court denied Kantor's motion for summary judgment in lieu of complaint and granted Mesibov and Altman's cross-motion to dismiss Action No. 2 on the grounds that the action was barred by the statute of limitations.

Kantor now moves to reargue from so much of this Court's prior order as denied his motion for summary judgment in lieu of complaint and granted Mesibov and Altman's motion to dismiss. He asserts that in considering the motion the Court misapprehended the law and the facts.

Action No. 2 arises out of three promissory notes made by Howard L. Kantor,

M.D., William J. Mesibov, M.D., Stuart J. Altman, M.D. and Jeffrey A. Amer, M.D., P.C. ("MDPC") payable to Kantor. The notes were self-amortizing. Each note was payable in sixty monthly installments with the first payment being due on September 1, 1995 and with the remaining payments being due on the first day of each successive month.

MDPC's payment on the notes was personally guaranteed by Mesibov, Altman and Amer.

MDPC made 39 payments on the notes. It defaulted in connection with the payments due on December 1, 1998.

Kantor commenced Action No. 1 against MDPC seeking to recover the balance due on the notes. Kantor did not, however, sue Mesibov or Altman on their guarantees.

Action No. 1 was settled for the sum of $110,00 by an undated Stipulation of Settlement ("Stipulation"). The Stipulation required MDPC to pay to Kantor the $110,000 settlement sum by installment payments. The initial payment of $3,000 was [*3]due on or before June 16, 2000. MDPC was to thereafter make monthly payments of $1,000 with the first such payment being due on July 1, 2000. Subsequent payments were due on the first day of each successive month. The final monthly payment of $1,000 was due on March 1, 2005. MDPC was then to make sixteen monthly payments of $3,125 with the first such monthly payment being due on April 1, 2005 and with the remaining payments being due on the first day of each successive month until the entire balance had been paid.

If MDPC failed to make a payment when due and such default was not cured within five days notice, Kantor could enter a judgment against MDPC for the balance due and statutory interest from the date of default.

Paragraph 4 of the Stipulation provides, in part:

"In consideration of this payment schedule together with other good and valuable consideration William J. Mesibov, M.D. and Stuart J. Altman, M.D. each specifically agree to the continued viability of each of their personal guarantees of the Notes notwithstanding the changes and modifications

made to the Notes and any other underlying agreement."

MDPC defaulted on payment due pursuant to the terms of the Stipulation due on October 1, 2005. By letter dated October 19, 2005, counsel for Kantor advised MDPC of its default in payment. Kantor advised MDPC of his intent to enter judgment for the balance due if the default was not cured.

When MDPC did not cure its default, Kantor entered a judgment against MDPC in Action No. 1. The motion practice in Action No. 1 involved the amount of the judgment entered in that case.

Kantor commenced Action No. 2 on February 9, 2006. The affidavit filed by Kantor in connection with this motion clearly indicates that he is suing Mesibov and Altman as guarantors of the three promissory notes. Mesibov and Altman cross-moved to dismiss on several bases. The Court denied Kantor's motion for summary judgment in lieu of complaint and granted Mesibov and Altman's cross-motion to dismiss on the grounds that an action on the guarantees was barred by the statute of limitations.

Kantor asserts the Court misconstrued the law and facts. He asserts that General Obligations Law §15-501 is inapplicable to this action and General Obligations Law §17-101 provided a toll to the statute of limitations on the actions on the guarantees. If the statute of limitations was tolled, then the action was not time barred.

A motion to reargue must be so designated, shall be based upon an assertion that the court overlooked or misapprehended matters of law or fact when it decided the prior motion and shall be made within 30 days of service of the order with notice of entry from which reargument is sought. CPLR 2221 (d).

A motion to reargue is addressed to the discretion of the court and may granted upon a showing that the court overlooked relevant facts or misapplied or misapprehended the applicable law or for some other reason improperly decided the prior motion. Carrillo v. PM Realty Group, 16 AD3d 611 (2nd Dept. 2005); Hoey-Kennedy v. Kennedy, 294 AD2d 573 (2nd Dept. 2003); and Foley v. Roche, 68 AD2d 558 (1st Dept. 1979). [*4]

A motion to reargue is based solely upon the papers submitted in connection with the prior motion. New facts may not be submitted or considered by the court. James v. Nestor, 120 AD2d 442 (1st Dept. 1986); and Philips v. Village of Oriskany, 57 AD2d 110 (4th Dept. 1997).

Contrary to the assertion of Kantor, this Court's decision to grant Mesibov and Altman summary judgment was not premised upon General Obligations Law §15-501(1).

The Court specifically found the action against Mesibov and Altman was barred by the statute of limitations. A guarantee is subject to the six year statute of limitations of CPLR 213(2). American Trading Co, Inc. v. Fish, 42 NY2d 20 (1977); and Town of Brookhaven v. MIC Property and Casualty Ins. Co., 245 AD2d 365 (1997). The cause of action accrues and the statute of limitations begins to run when the prime obligor defaults on the underlying obligation. Haber v. Nasser, 289 AD2d 199 (2nd Dept. 2001); and Gazza v. United California Bank International, 88 AD2d 968 (2nd Dept. 1982).

MDPC defaulted on the note payment that was due on December 1, 1998. By letter dated December 28, 1998, Kantor advised MDPC of its default in payment and advised MDPC, Mesibov, Altman and Amer of the default. This letter demanded the default be cured within ten days. The default was not cured within the cure period. As a result, Kantor commenced Action No. 1.

The statute of limitations on Mesibov and Altman's guarantees began to run when MDPC did not cure its default in payment on the notes within ten days of Kantor's December 28, 1998 letter. Thus, the statute of limitations began to run on January 7, 1999 unless it was tolled or extended.

Kantor asserts General Obligations Law §17-101 tolled the statute of limitations.

Kantor asserts the Stipulation is a writing executed by Mesibov and Altman which constitutes an acknowledgment of their debt sufficient to take it out of the statue of limitations.

A stipulation is a contract which will be enforced in accordance with specific its terms. Ross v. Ross, 16 AD3d 713 (3rd Dept. 2005); McKenzie v. Vintage Hallmark, PLC, 302 AD2d 503 (2nd Dept. 2003); and Charter Realty & Development Corp. v. New Roc Assocs., L.P., 293 AD2d 438 (2nd Dept. 2002).

Thus, contrary to Kantor's assertion, the Stipulation is not simply a modification of the terms of the notes. The Stipulation created new and different contractual obligations between Kantor and MDPC. MDPC had executed three notes. The Stipulation consolidates the amounts due on three separate notes into one obligation.

At the time, MDPC went into default, Kantor was owed the principal sum of $92,693.78.^[FN1] The Stipulation provides for payment of the sum of $110,000. Two of the notes provide for payment of interest. The Stipulation provides for payment without interest. The notes contained a ten day cure period. The Stipulation contained a five day cure period.

The liability of a guarantor is narrowly construed and will not extended beyond the plain and explicit language of the guarantee. Key Bank of Long Island v. Burns, 162 AD2d 501, (2nd [*5]Dept. 1990). The plain and explicit language of the guarantee indicates Mesibov and Altman were guaranteeing MDPC's obligation on the notes. If Kantor wanted Mesibov and Altman to guarantee MDPC's obligations on the Stipulation, it should have explicitly provided for that. It did not. The Stipulation, which was executed within the limitations period must be read as acknowledging Kantor's right to sue under Defendants' guarantee of the notes, not as an extension of the guarantee to the Stipulation.

Kantor's reliance upon General Obligations Law §17-101 and Knoll v. Datek Securities Corp., 2 AD3d 594 (2nd Dept 2003) is misplaced. Both the statute and Knoll require the writing to be signed by the debtor. Mesibov and Kantor were not the debtors; they were guarantors. MDPC was the debtor on the note.

Kantor's assertion that the Court's consideration of papers submitted in regard to the other motions caused prejudice is without merit. Prejudice is not a basis to reargue.

Since the Court did not misapprehend the facts or the law, Plaintiff's motion to reargue must be denied.

Accordingly, it is,

ORDERED, that Plaintiff's motion to reargue is denied.

This constitutes the decision and Order of the Court.

Dated: Mineola, NY_____________________________

March 27, 3007Hon. Leonard B. Austin, J.S.C.