Ray Weil Chevrolet, Inc. v. Warmus

— Order unanimously modified on the law and as modified affirmed with costs to plaintiff in accordance with the following Memorandum: Numerous factual issues exist whether the guarantee executed by defendant Warmus was conditional or unconditional. Supreme Court properly denied plaintiff’s motion for summary judgment on the complaint against Warmus.

The court should have granted summary judgment, however, on the complaint against defendants Howell and M & C Investments. Those defendants failed to proffer evidentiary materials sufficient to raise a triable fact issue whether the promissory note and net lease, which were executed as part of the same transaction, constituted mutually dependent contracts (cf, Rudman v Cowles Communications, 30 NY2d 1, 13). Plaintiff was entitled to summary judgment dismissing the counterclaim asserted by Warmus. The counterclaim alleges that plaintiff, by selling certain property, caused an "artificial default” in a net lease. The uncontroverted evidence reveals that plaintiff did not sell the property, and Warmus has failed to demonstrate that the landlord caused a default to occur. (Appeal from Order of Supreme Court, Erie County, Mintz, J. —Summary Judgment.) Present — Denman, P. J., Pine, Balio, Lawton and Doerr, JJ.