Puntillo Associates v. Land , 634 N.Y.S.2d 546 ( 1995 )

—In an action to recover damages for breach of a lease agreement based upon the terms of the defendant’s personal guarantee of a commercial lease agreement between the plaintiff and XTREE Lab, Inc., the plaintiff appeals from an order of the Supreme Court, Nassau County (DiNoto, J.), dated August 8, 1994, which denied the plaintiff’s motion for summary judgment on both liability and damages.

Ordered that the order is modified by deleting therefrom the provision which denied the branch of the plaintiff’s motion which was for summary judgment on the issue of liability, and sustituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed; without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for an inquest to determine the appropriate measure and amount of damages.

The defendant failed to submit any proof that the unconditional terms of the personal guarantee signed by him or the underlying lease agreement are unconscionable and against public policy. Thus, his defense to individual liability based on the guarantee is without merit. However, the defendant contends that there is a question as to the amount of damages and the appropriate measure to be used to determine damages. We find that the lease agreement, which provides for both acceleration of the rent and mitigation of damages, requires testimony to determine the meaning of these clauses.

We have reviewed the appellant’s remaining contentions and find them to be without merit. Mangano, P. J., Balletta, Copertino and Hart, JJ., concur.