This is an action seeking unpaid rent, additional rent and other arrears (hereinafter rent") [*2]from the defendants, who personally guaranteed a commercial lease. Presently before the court are three motions and a cross motion. They are as follows: Richard Shandell's ( Shandell") motion for summary judgment dismissing plaintiff's complaint, and plaintiff's cross motion for summary judgment against Shandell (collectively motion sequence #1), plaintiff's motion (brought by Order to Show Cause) for summary judgment against Arthur Blitz ( Arthur Blitz") and Shoshana Bookson ( Bookson") (motion sequence #2), and Shandell's motion (brought by Order to Show Cause) to expand the record in connection with his motion (motion sequence #1) for summary judgment (motion sequence #3). The motion to expand the record is granted and those submissions will be considered by the court since they pertain to the court's inquiry into whether summary judgment should be awarded and plaintiff has addressed the submissions on the merits.

Since the moving defendants have answered ^[FN1] the complaint and these motions are all brought pre-note of issue (CPLR 3212 [a]), they are timely and will be decided on the merits. Furthermore the motions and cross motion are all hereby consolidated for decision in this decision and order which is as follows:

Facts and Arguments

Plaintiff 150 Broadway NY Associates, LP ( plaintiff" or owner") owns the building located at 150 Broadway, New York, New York. Plaintiff leased commercial space on the 14th floor of the building to the law firm of Shandell Blitz Blitz & Bookson, LLP ( SBB & B") pursuant to a ten (10) year lease agreement ,commencing May 1, 2002 and ending April 30, 2012 ( lease"). The lease was personally guaranteed by Shandell, Bert Blitz, Arthur Blitz, and Bookson.

Eventually, SBB & B fell into arrears on its rent in 2009 and plaintiff commenced a non-payment proceeding against the law firm in the Civil Court of the City of New York (L & T 09 N 070463) ( non-payment proceeding"). SBB & B was not represented in that action by any of the individually named defendants in this action.

The owner and SBB & B settled the non-payment proceeding by entering into a written stipulation of settlement, that was so-ordered by Hon. Peter H. Moulton on June 17, 2009 ( settlement") . The settlement awarded the owner a judgment of possession, execution stayed until June 24, 2009. It also provided for the entry of a money judgment against SBB & B in the amount of $257,378.72. The settlement was without prejudice to the owner commencing a plenary action against the guarantors of the lease. None of the defendants in this case were a party to the Civil Court action.

There is a rider to the lease and section 39 of the rider sets forth the terms of the Good Guy Guaranty" ( guaranty") which is the subject of the parties' dispute. In relevant part the guaranty provides as follows:

In order to induce Owner to enter into this Lease and in consideration of Owner's entering into this Lease, the four (4) individuals executing this lease rider at the foot hereof (hereinafter, collectively, referred to as Guaranty") hereby guaranties, unconditionally and absolutely, to Owner, its successors and assigns (without requiring any notice of nonpayment, nonkeeping, nonperformance or nonobservance or proof of notice or demand whereby to charge Guarantor, all [*3]of which Guarantor hereby expressly waives) . . . (. . .the payment as and when due of the Fixed Annual Rent, Additional Rent, charges and damages payable by Tenant under the Lease) . . . up to the date that Tenant vacates the demised premises and removes its property therefore, delivers the key to Owner and gives written notice to Owner that it is surrendering possession of the premises . . .

(i) Notwithstanding anything to the contrary contained in this Good Guy Guaranty, in the event that any Guarantor (1) fully withdraws as a partner from the limited liability partnership which is the tenant under this Lease (hereinafter referred to as the LLP") and (2) physically vacates the Demised Premises, except that such Guarantor may remain associated with the LLP as of counsel" and in connection therewith may utilize a small portion of the Demised Premises and further provided that all Fixed Annual Rent, Additional Rent and other charges due and payable under the lease by the Tenant is then current, and if proof satisfactory to the Owner which shall include a signed statement by the LLP and each other Guarantor of the within lease certifying that the that both of the foregoing events described in items (1) and (2) of this subparagraph have occurred, then such withdrawing Guarantor shall be released and discharged from his guaranty of this Lease. Such release shall not have any effect upon the Guaranty of each other Guarantor hereunder which shall remain in full force and effect."

Plaintiff seeks summary judgment against Shandell, Arthur Blitz and Bookson based on these defendants' personal guaranty of SBB & B's lease. Although acknowledging that Shandell and Bookson each sent notices purporting to obtain the owner's discharge from their personal guarantees, the owner contends that when the withdrawal notices were sent to the plaintiff, SBB & B had unpaid rent and, therefore, a condition of their release from their personal guarantees — that all rent is then" current — was not met. Furthermore, plaintiff claims that since these defendants were never released from their personal guarantees, they are individually and severally liable for all the rent, additional rent and other charges that SBB & B failed to pay, even though those arrears accrued years after they left the firm (i.e in 2009). Thus, plaintiff seeks to recover the $257,378.72 in unpaid rent from the defendants as determined due and owing in the non-payment proceeding.

Plaintiff acknowledges that Shandell sent two notices purporting to notify plaintiff of his retirement from the firm and seeking his discharge from the guaranty. The first letter or notice of withdrawal is dated January 23, 2006. It was sent to Avrom Vann, Esq. ( Vann"), who is presently, and was at that time, the attorney for plaintiff. The letter states that: Richard Shandell has fully withdrawn as a partner from Shandell, Blitz, Blitz & Bookson, LLP. He has physically vacated the Demised Premises, except that he remains associated with Shandell, Blitz, Blitz & Bookson as Of Counsel" and in connection therewith utilizes a small portion of the Demised Premises." The January 23rd letter from Shandell is signed by each of the three (3) other guarantors, Bert Blitz, Bookson and Arthur Blitz.

Receiving no response to his letter, Shandell sent a second letter directly to the plaintiff's property manager, Dan Misheal ( Misheal"), dated February 13, 2006 stating as follows: Pursuant to the request of your attorney, Avrom R. Vann, my partners sent the requisite letter to seek my release from the Good Guy Guaranty" in compliance with the terms of the Lease. [*4]Enclosed please find that letter to Mr. Vann. Accordingly, I am asking you kindly acknowledge, in writing, that you will abide by my request to remove my guarantee from the Lease."

Plaintiff acknowledges Vann sent the following response dated March 1, 2006:

This will confirm the receipt of each of the two letters. Under the Terms of the Lease and the Guaranty thereof, as you know, under certain circumstances, Richard E. Shandell is capable of earning a release from the Guaranty. To the extent that he has fully complied and continues to comply with the terms of the documents which govern exculpation, he will be released from the Guaranty; however, should the facts set forth in your January 23, 2006 letter prove not to be accurate or should Mr. Shandell take other steps which would expose him to liability under the Guaranty, then that liability would continue.

The purpose of this letter therefore is to acknowledge receipt of the letters and the notification to my client Mr. Shandell asserts that he is no longer bound by the terms of the Guaranty. Obviously, it is not for my client to modify, change or otherwise remove any signatures from the actual Guaranty documents.

I would expect that your firm will meet all of its obligations under the Lease in a timely fashion and therefore the issue of Mr. Shandell's possible continuing liability ideally will never arise."

Plaintiff denies that Vann's letter was any acknowledgment that Shandell had been discharged from his personal guaranty. Plaintiff contends it only acknowledged receipt of Shandell's notice and stated the obvious: that if Shandell had complied with all the requirements, he could be released.

Plaintiff also acknowledges that Bookson sent her own letter notifying plaintiff that she had withdrawn as partner and was seeking to be discharged from the guaranty. Bookson's letter, dated November 2, 2007, is also addressed to Misheal. The letter contains the following:

Please be advised that as of this date I am no longer a partner in the limited liability partnership known a Shandell, Blitz, Blitz & Bookson, LLP, tenant in the above premises. Therefore, pursuant to Rider Section 39 of the lease pertaining to said premises, I am released and discharged from my guaranty of this Lease. Please confirm to me you acknowledgment of the above and release of me as guarantor of the Lease."

According to plaintiff the letter was an incomplete notice of withdrawal and it was rejected. In his correspondence dated November 5, 2007, Misheal wrote the following:

You have not complied with the provisions of the written lease agreement by and between 150 Broadway NY Associates, L.P. and Shandell, Blitz, Blitz & Bookson, LLP dated June 25, 2002 (hereinafter Lease"). Accordingly, your letter dated November 2, 2007 does not serve to release you as a guarantor of the Lease. Please be guided accordingly."

On November 8, 2007 Arthur Blitz sent the following letter to plaintiff which, according to Bookson, was to remedy her not having had the original letter signed by her co-guarantors: [*5]

This is to advise that Shoshana T. Bookson is no longer a partner at our office. Our firm will continue as always. Please address all communication to Arthur Blitz or Mitchel H. Ashley."

Plaintiff argues that the letters sent by Shandell and Bookson were defective notices and both guarantors are personally liable for rent arrears SBB & B incurred in 2009.

Plaintiff contends that Shandell's first withdrawal notice (i.e. dated January 23, 2006) is ineffective because by that date SBB & B had not paid its January 2006 rent and therefore, had one month of rent arrears. SBB & B, according to plaintiff, also had rent arrears when Shandell sent his follow up withdrawal notice dated February 13, 2006. Plaintiff asserts that under the lease rent is payable on the first of each month and if the rent is not paid on the first when due, there are rent arrears - - even if it later it is paid in full and there is a zero balance. Plaintiff acknowledges that SBB & B had paid its rent in full by January 30, 2006 for the month of January 2006 and again by February 24, 2006 (for the February 2006 rent).

Plaintiff contends Bookson's withdrawal notice is defective because it was not signed by Arthur Blitz, Bert Blitz or Shandell. Furthermore, according to plaintiff SBB & B had rent arrears because the November 2007 rent, which was due on November 1st, had not yet been paid by SBB & B when Bookson sent her notice. Plaintiff points out that Arthur Blitz sent a follow up" letter on behalf of Bookson dated January 16, 2009 —14 months after Bookson's initial withdrawal" — stating, once again that Bookson is no longer a member of this firm nor is she at our leased premises." Plaintiff contends this is proof" that Bookson knew she was obligated under the guaranty.

Plaintiff seeks summary judgment against Arthur Blitz based upon his never having withdrawn (or endeavored to withdraw) as a partner from SBB & B and because the only defense he has asserted in his answer is lack of personal jurisdiction based upon improper service. Plaintiff has filed proof of service and provided the sworn affidavit of its process server who is licensed to serve process. Arthur Blitz has not opposed any of these motions, though there is due proof of service they were served on him.

Shandell argues that plaintiff's cross motion for summary judgment against him should be denied and his motion for summary judgment granted because he complied with the requirements of the good guy guaranty" by providing proof he had retired from SBB & B, vacated the premises, and disclosed that he was only using a small portion of the space in an of counsel" capacity. Furthermore, since the guaranty requires that such proof [be] satisfactory to the Owner," but Vann's response did not deny Shandell's request to discharge his guaranty, or indicate that any of SBB & B's rent was in arrears, Shandell argues that plaintiff tacitly released him from the guaranty or has waived any objections the owner could have asserted at that time.

Alternatively, Shandell argues that plaintiff's own rent ledger shows that SBB & B was current in its rent and it even had a negative balance (credit) of $521.06 on January 30, 2006 and again a negative balance (credit) of $315.63 on February 24, 2006. Thus, Shandell argues that plaintiff's interpretation of certain language in the guaranty is hyper technical and places undue emphasis on the date that a guarantor notifies the plaintiff of its withdrawal from the partnership. According to Shandell, the guaranty emphasizes that there must be compliance with the events described in items (1) and (2) of this subparagraph . . ." Those events are: (1) full withdrawal as [*6]partner from the LLP and (2) vacatur from the premises. Thus, Shandell contends he complied with both those terms and plaintiff raises no triable issue of fact that he did not. Shandell argues that the rest of the guaranty provision pertaining to the rent being current should not be literally or hyper technically be applied to mean the rent has to be current on the exact date the guarantor notifies the plaintiff of its withdrawal from the LLP, etc. Thus, Shandell argues that although the rent for January and February 2006 were each paid later than the 1st of the month, there were no unpaid arrears that would have prevented his being discharged as guarantor.

Shandell provides copies of two checks that SBB & B sent to the plaintiff at or about the time he notified the owner he wanted to be released from his guaranty. The checks are dated December 29, 2005 and were cashed on January 10, 2006. According to plaintiff they were received on January 9, 2006. Bookson provides her sworn affidavit stating they were hand delivered the same day they were drawn because the plaintiff has its office in the same building. Bookson provides a copy of SBB & B's bank statement to show the funds were available in the law firm's account when the checks were written.

In opposition to the plaintiff's motion for summary judgment against her, Bookson argues she substantially complied with the notice requirements of the guaranty because she notified the owner she had withdrawn from the firm in a letter dated November 2, 2007. Although she acknowledges her letter was not signed by any other guarantor, as required under the guaranty, she immediately thereafter had Arthur Blitz send a separate letter dated November 5, 2007, confirming that Bookson was no longer a partner in the firm. According to Bookson, the only remaining guarantor was Arthur Blitz since Shandell had already withdrawn as had Bert Blitz. Therefore, Bookson argues the letter signed by Arthur Blitz - the sole remaining guarantor — cured any defect in her original notice and she was discharged under the guaranty. Bookson points out that the landlord did not send any further correspondence after Arthur Blitz sent his letter and she assumed she had been released. Bookson also contends that plaintiff knew she was no longer on the premises because Misheal sent the letter to her home.

Bookson argues that plaintiff is or should be estopped from trying to recover unpaid rent that accrued in 2009 — two years after she withdrew from the firm. Bookson contends that at about the time, or shortly thereafter, the firm had no unpaid rent, as reflected on the owner's rent ledger, and for the landlord to argue that her notice was defective simply because on the exact date of her notification SBB & B had not paid its rent is inequitable. Finally, Bookson argues that a guaranty should be strictly construed in favor of a non-institutional private lender (like her) and even if the rent was paid late, the default" was de minimus and should be disregarded. Bookson argues further that the purpose of the guaranty is to insure the tenant's obligation to pay rent, the tenant did pay the rent, and once SBB & B had a zero balance, the owner could have easily accepted" Bookson's notice of withdrawal at that point. Bookson urges the court to grant reverse summary judgment in her favor, although she has not cross-moved for such relief.

Plaintiff in response to these arguments contends that Bookson is not telling the truth about when she delivered the checks because plaintiff's office staff (Ms. Baragona) remembers she received the check on January 3, 2006, and not before. Ms. Baragona provides a sworn affidavit to this effect.

Law Applicable to Motions for Summary Judgment

A movant seeking summary judgment in its favor must make a prima facie showing of [*7]entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The evidentiary proof tendered, however, must be in admissible form (Friends of Animals v. Assoc. Fur Manufacturers, 46 NY2d 1065 [1979]). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557 [1980]; Forrest v. Jewish Guild for the Blind, 309 AD2d 546 [1st Dept 2003]).

On a motion for summary judgment, it is for the court to decide any issues of law that are raised (Hindes v. Weisz, 303 AD2d 459 [2nd Dept 2003]).

Discussion

Plaintiff's interpretation of the guaranty and what a guarantor must do to be released from its guaranty agreement sets higher standards that are not found within the language of the guaranty itself, nor are such requirements consistent with the reason the guaranty was provided in the first place.

The purpose of the guaranty was to make sure the partners of SBB & B jointly and severally were liable for any unpaid rent SBB & B might accrue. The guaranty allowed a withdrawing partner to be discharged from those obligations, however, provided the partner notified the owner of two things: s/he had withdrawn from the firm and was not longer on the premises, except in a limited capacity. Once those requirements were met — and there were no arrears, then the partner's guaranty would be discharged, but the remaining partners would continue to be accountable for on going rent and any future unpaid arrears. The guaranty did not expand if the number of partners increased. The guaranty is written in such a way that it was anticipated or likely that at the end of the day there might only be one guarantor since there is a separate provision about the Last Guarantor" who shall not be released or discharged ..." unless certain other conditions are met. Thus, although Shandell, Bert Blitz and Bookson may no longer be guarantors (as will be discussed at greater directly below), the guaranty has not been eviscerated of its usefulness.

The interpretation of the guaranty that plaintiff urges the court to accept, that a guarantor cannot be released from his or her guaranty the day the notice is tendered, because the current month's rent is paid several days or weeks later, allows the owner unfettered discretion on when to cash any payments that the tenant makes. Theoretically, this would eviscerate a guarantor's express right to terminate the guaranty when s/he notifies the owner in good faith that s/he has withdrawn from the law firm as partner. This was clearly not the underlying intention of the lease provision at bar. Under the guaranty, each guarantor waived notice of any rent arrears the tenant might have. The guarantors did not, however, waive the right to notice that their individual withdrawal notices were rejected as inadequate or deficient by the owner. Therefore, when Shandell sent his notice of withdrawal it was up to the landlord to either notify him it was satisfactory or unsatisfactory. The landlord did not tell Shandell there were rent arrears or that his notice was rejected for that reason. Instead, the landlord played coy and had its attorney send an obtuse letter which avoids this issue altogether. The letter that Vann sent suggests that Shandell's notice was acceptable because it does not state otherwise:

To the extent that he has fully complied and continues to comply with the terms of the documents which govern exculpation, he will be released from the Guaranty; however, should [*8]the facts set forth in your January 23, 2006 letter prove not to be accurate or should Mr. Shandell take other steps which would expose him to liability under the Guaranty, then that liability would continue..."

Consequently, unless the owner notified Shandell that his proof was unsatisfactory, Shandell had reason to believe he had been released from his obligations under the guaranty, because he had complied with the events described and identified as items (1) and (2) of section 39 (i) of the rider.

The following language is not defined or quantified in the guaranty or anywhere else in the lease: and further provided that all Fixed Annual Rent, Additional Rent and other charges due and payable under the lease by the Tenant is then current . . ." Plaintiff's interpretation of then current" is very narrow. According to plaintiff this means that there can be no rent unpaid on the exact date when the guarantor submits his or her notice of withdrawal and if there is, then the notice is per se defective. This is an unduly harsh and hyper technical reading of the guaranty which more broadly allows a partner no longer associated with SBB & B to be released as a guarantor when s/he withdraws from the firm. To construe the guaranty in this manner defeats the reasonable expectations of the parties, which is to make sure there are no arrears before the guarantor is released (Madison Avenue Leasehold v. Madison Bentley Associates, 30 AD3d 1 [1st Dept 2006]). Although the rent was unpaid for the months of January 2006 and February 2006 when Shandell sent each notice, it was paid by the end of each month. Thus, by February 28, 2006 all of the conditions satisfying the termination of the guaranty had been satisfied. The tenant's default was de minimus and no legal action was taken (Madison Avenue Leasehold v. Madison Bentley Associates, supra).

The court finds that Shandell's notices substantially complied with the requirements set forth in the good guy guaranty" for a withdrawing partner to be discharged. SBB & B was not in material default of its lease when Shandell sought to be discharged and the owner did not notify Shandell otherwise. Shandell had no reason to believe he would be responsible for unpaid rent the firm incurred in 2009 - almost three years after he withdrew. Therefore, Shandell's motion for summary judgment dismissing plaintiff's complaint against him is granted. Plaintiff's cross motion for summary judgment against Shandell is denied.

Bookson's Notice

It is unrefuted that Bookson's initial withdrawal notice is imperfect. Unlike Shandell, Bookson received a reject" notice from the owner after she sent her letter. Misheal's rejection notice on behalf of the owner does not, however, articulate the reason Bookson's notice was found to be defective. It merely states that you have not complied with the provisions of the written lease agreement ... your letter dated November 2, 2007 does not serve to release you as a guarantor of the Lease. Please be guided accordingly."

It is unrefuted that Bookson neglected to have the withdrawal notice signed by any of the other guarantors. Plaintiff claims three other signatures were needed. Bookson, however, raises issues of fact whether Arthur Blitz's signature on the follow up letter he sent was sufficient. Although that letter cured the defect in Bookson's November 2, 2007 omitting any signatures by the other guarantors, it is unclear whether Arthur Blitz was the last remaining guarantor. Shandell, as a matter of law, was no longer a guarantor when Bookson tendered her withdrawal [*9]notice, therefore his signature was not necessary. To construe the guaranty in any other manner would make no sense since a partner who had already withdrawn from the partnership would no longer be responsible under the guaranty for SBB & B's rent. There is, however, a triable issue of fact whether Bert Blitz had withdrawn from the firm by the time Bookson sent her notice. Although she claims he had withdrawn as partner from SBB & B, there is no proof of that. Bert Blitz is a named defendant in this action but he has not answered the complaint or appeared in this action, nor has he taken any position on these motions.

Misheal's rejection letter does not mention rent arrears. Although Joseph L. Jerome, plaintiff's president claims Misheal's letter should be interpreted to mean that Bookson's notice was rejected because the tenant had rent arrears, even if the two other requirements were substantially met by her, that is not what the letter states. Jerome did not write that letter and does not have personal knowledge of its contents. There is, therefore, a triable issue of fact whether Bookson was on notice that her notice of withdrawal was rejected because of rent arrears. Therefore, plaintiff's motion for summary judgment against Bookson is denied as is her request that the court search the record and grant her reverse summary judgment.

Arthur Blitz and Bert Blitz

Though Arthur Blitz has interposed an answer, it only asserts a general defense of improper service. He has taken no position on any of these motions or sought the dismissal of this action for that reason (CPLR 3211 [e]). More than sixty (60) days have passed since he asserted that defense. Therefore, that defense has been waived. Arthur Blitz has put forward no evidence that he sought to relieve from his personal guaranty or that he was not the last remaining guarantor. Therefore, plaintiff's motion for summary judgment against Arthur Blitz is granted on default. An inquest will be held at the time of trial.

Bert Blitz has not answered the complaint or appeared, nor has he taken any position on these motions. None of the motions seek any relief against him. Therefore, the court's decision and order does not resolve any of the claims or cross claims that have been asserted against Bert Blitz.

Trial Readiness

Although no preliminary conference has ever been held in this action, none of the parties to these motions have indicated there is any outstanding discovery. Accordingly, the court hereby schedules this case for a status conference on June 17, 2010 at 9:30 a.m. at which time the date for the Note of Issue will be set.

Conclusion

Shandell's motion for summary judgment is hereby granted and plaintiff's cross motion for summary judgment against Shandell is hereby denied. The plaintiff's motion for summary judgment against Bookson is denied as there are material issues of fact that must be decided at trial. Bookson's request that the court search the record and grant her summary judgment is denied. Plaintiff's motion for summary judgment against Arthur Blitz is granted. Bert Blitz has defaulted in answering the complaint. The court's decision and order makes no finding with respect to any of the claims against this defendant.

In accordance with the foregoing,

It is hereby

Ordered that defendant RICHARD SHANDELL's motion for summary judgment is [*10]granted and the clerk shall enter judgment in favor of defendant RICHARD SHANDELL severing and dismissing all claims against him; plaintiff's cross motion for summary judgment against RICHARD SHANDELL is denied; and it is further

Ordered that plaintiff's motion for summary judgment against ARTHUR BLITZ is granted on default on the issue of liability; an Inquest on damages will be held at the time of trial; and it is further

Ordered that plaintiff's motion for summary judgment against SHOSHANA BOOKSON is denied for the reasons stated, as is her request for the court to search the record and grant her reverse summary judgment against plaintiff; and it is further

Ordered that Bert Blitz has defaulted in answering the complaint; the court's decision and order makes no finding with respect to any of the claims against this defendant; and it is further

Ordered that a status conference will be held on June 17, 2010 at 9:30 a.m. at which time the date for the Note of Issue will be set; and it is further

Ordered that any relief not specifically addressed is hereby denied; and it is further

Ordered that this constitutes the decision and order of the court.

Dated:New York, New York

May 10, 2010

________________________

Hon. Judith J. Gische, J.S.C.