Spector v. Wendy
858 N.Y.S.2d 898
N.Y. App. Div.
2008
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GILBERT SPECTOR et al., Appellants, v HOWARD WENDY, Respondent.

Supreme Court, Appellate Division, Second Department, New York

[858 NYS2d 898]

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 ). 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. ), 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 ).

The parties’ remaining contentions are either without merit or not properly before the Court. Rivera, J.P., Ritter, Miller and Dillon, JJ., concur.