On October 25, 2022, the First Department issued a decision in Arena Invs., L.P. v. D’Angelo, 2022 NY Slip Op. 05945, holding that a guaranty made to two lenders was ambiguous regarding whether it could be enforced by only one of the lenders, explaining:
Plaintiffs’ motion for summary judgment should have been denied, as they did not establish as a matter of law that can enforce the guaranties independently of their co-lender, nonparty Capstone Capital Group, LLC (Capstone). Plaintiffs and Capstone were collectively identified as “the Purchaser” in the guaranties, however only plaintiffs, the minority members of the purchaser group, sought to enforce the guaranties. The terms of the guaranties are ambiguous as to whether the parties contemplated collective action on the part of plaintiffs and Capstone in the event of a default or whether each individual lender can bring an action to enforce the guaranties without the participation of the other. We note that Capstone submitted an affidavit in which it stated that it purposefully did not join with plaintiffs in this action.
Plaintiffs’ contention that defendant waived any and all defenses to the enforcement of the guaranties is unavailing. Plaintiffs may not rely on the waiver provisions in the guaranties where the guaranties are ambiguous as to whether plaintiffs can independently enforce them.
(Internal citations omitted).