Affidavit Used as Evidence of Tenant's Personal Guaranty Default

Facts: A tenant signed a lease for office building space. At the same time, the tenant also signed a personal guaranty, guaranteeing his rent obligations under the five-year lease. The tenant moved out of its office space a year before the lease term was to end, but the owner didn't relet the office to a new tenant.

It sued the tenant for all of the outstanding base rent and additional rent—totaling $42,571.84—that the tenant owed under the lease and had personally guaranteed. The owner asked the court for a judgment in its favor without a trial.

Decision: The court granted a judgment in favor of the owner without a trial.

Reasoning: The court pointed out that, to enforce a written personal guaranty, all a creditor needed to prove was the existence of an “absolute and unconditional” guaranty, the amount of the underlying debt, and the guarantor's—in this case, the tenant's—failure to perform under the guaranty.

Here, to support its assertion that the tenant failed to pay the rent and additional rent it owed, the owner submitted a copy of the lease, a copy of the guaranty, an “arrears statement” with an accounting of the overdue payments, and an affidavit from its managing agent.

The guaranty stated that: (1) the tenant “hereby guarantees the full, faithful, and timely payment and performance of all its payments, covenants, and other obligations under or pursuant to the Lease”; (2) the tenant's lease obligations “shall remain fully binding although Landlord may have waived one or more defaults by Tenant, extended the time of performance by Tenant, released, returned, or misapplied other collateral at any time given the security for Tenant's Obligations, including other guaranties, and/or released Tenant from the performance of its obligations under the Lease”; (3) the guaranty “shall remain in full force and effect notwithstanding the institution by or against Tenant of bankruptcy, reorganization, readjustment, receivership, or insolvency proceedings of any nature, or the disaffirmance of the Lease in any such proceedings or otherwise”; and (4) the guaranty is “irrevocable, continuing, indivisible, and unconditional and, except as otherwise provided herein, may be proceeded upon immediately after failure by the Tenant to pay, perform, or comply with any of the Lease obligations, without any prior action or proceeding against the Tenant.”

The affidavit stated: “In violation of the Lease, Tenant has failed to pay to Owner rent and additional rent due and owing through September 2009, in the sum of $42,571.84.”

The court determined that the guaranty and affidavit produced by the owner demonstrated that it was entitled to the rent and additional rent payments it sought. That was because the documents showed that the tenant was obligated by the lease to make the payments, had further personally guaranteed that the payments would be made, and then failed to make them.

• 347 West 36th Street LLC v. Dibenedetto, August 2010