Graves v. Beaven

—Judgment, Supreme Court, New York County (Beatrice Shainswit, J.), entered May 9, 1994, in favor of defendants and against plaintiffs dismissing the complaint, and bringing up for review an order, same court and Justice, entered March 14, 1994, which, in an action by guarantors of a corporate debt against their coguarantors seeking equitable exoneration or contribution, granted defendants’ motion for summary judgment and denied plaintiffs’ cross motion for partial summary judgment on their cause of action for equitable exoneration, unanimously affirmed, with costs. The appeal from the order is dismissed as superceded by the appeal from the judgment, without costs.

Assuming in plaintiffs’ favor that New York does recognize a right to equitable exoneration between coguarantors in the absence of a special contract, i.e., a right to contribution that arises before payment of more than one’s proportionate share of a joint obligation (cf., Empire Trust Co. v Bartley & Co., 258 App Div 249, 251), we would nevertheless dismiss the complaint. Plaintiffs have paid only a fraction of their proportionate share of the underlying note, and have allowed two unappealed, now-unappealable and entirely enforceable judgments on the note to be entered against them, one in State *331court that was fully litigated and the other a consent judgment in Federal court in New Jersey pursuant to a settlement agreement calling for installment payments. To allow exoneration here would be to vitiate both of these judgments without appeal, and to force the creditor to pursue separate remedies against plaintiffs’ coguarantors when plaintiffs have not even rendered faithful compliance with their own settlement agreement. Plaintiffs’ cause of action for contribution was properly dismissed since, as they effectively concede, they cannot obtain contribution in the absence of payment in excess of their proportionate share (see, Falb v Frankel, 73 AD2d 930, 931). Concur—Ross, J. P., Asch, Rubin, Nardelli and Tom, JJ.