Further, as the Lease Agreement between the parties provides that plaintiff could only
terminate the agreement as of 90 days following the one year anniversary of rent, defendant is
entitled to rent and additional rent up to January 2009. Moreover, as plaintiff does not dispute
that it has not made rent, taxes or insurance payments beginning in May 2008, while plaintiff was
still occupying the premises, defendants are entitled to summary judgment in their favor on their
counterclaim against plaintiff for rent and additional rents due from the month of May 2008
through January 15, 2009, together with interest, in an amount to be determined by a Special
Referee, as detailed below. Although defendants did not cross-move for summary judgment,
defendants did in fact request that the court search the record and grant them summary judgment
instead of plaintiff. As indicated above, CPLR 3212(b) provides for such relief, as it states that
"[i]f it shall appear that any party other than the moving party is entitled to a summary judgment,
the court may grant such judgment without the necessity of a cross-motion."
Additionally, with regard to counterclaim-defendant Gutterman, the guaranty which he
signed made him personally liable on the debts of plaintiff under the Lease Agreement. The
guaranty further stated that Gutterman would be "irrevocably and unconditionally, without offset,
defense or counterclaim of any nature . . . bound and liable hereunder." Gutterman Aff, Exh H at
¶ 1.
Thus, defendants are also entitled to summary judgment in their favor on their counterclaim
against Allen Gutterman for rent and additional rents due from the month of May 2008 through
January 15, 2009, together with interest, cost and disbursements, in an amount to be determined