Summary
This Appellate Division, First Department decision affirms judgments entered in favor of a plaintiff landlord against a defendant guarantor and tenant. The court upheld the denial of the guarantor's motion to amend his answer to assert a lack-of-capacity defense under Business Corporation Law § 1312(a), finding it waived by the guaranty agreement. Additionally, the court affirmed the confirmation of a Special Referee's report, ruling that the lease copy and rent ledger were properly authenticated as business records and satisfied the best evidence rule.
Topics
Practice areas
Questions Presented
- Whether the guarantor's motion to amend his answer and seek summary judgment was properly denied because of the waiver of defenses.
- Whether the appellate court may consider a motion to confirm a Special Referee's report sua sponte regardless of timeliness.
- Whether the lease copy satisfied the best‑evidence rule and was admissible as a business record.
- Whether the rent ledger was admissible as a business record under CPLR 4518(a).
Holdings
- The waiver of all defenses except payment is dispositive; therefore the guarantor's motion to amend and his summary‑judgment motion were properly denied.
- The court may consider the motion on its own initiative regardless of the plaintiff's timeliness.
- The lease copy satisfied the best‑evidence rule and was admissible as a business record.
- The rent ledger was properly admitted as a business record.
Key quotations
“that the proffered evidence is authentic and correctly reflects the contents of the original before ruling on its admissibility”
Factual background
Daper Realty, Inc., a landlord, sued a guarantor and a tenant for unpaid rent. The guarantor's contract contained a waiver of all defenses except payment, and the tenant relied on a lease and rent ledger to prove liability. Disputes arose over whether the guarantor could amend his answer to assert a capacity defense and whether the lease and ledger satisfied evidentiary rules.
Procedural history
The trial court entered judgments in favor of Daper Realty against a guarantor and a tenant. The guarantor sought leave to amend his answer to raise a capacity defense and then moved for summary judgment; the motion was denied. The plaintiff also moved to confirm a Special Referee's report, which the trial court granted. Both orders were appealed to the Appellate Division, First Department.