Bank of New York v. Progressive Phone Systems, Inc.

Decision Date28 September 1979
Citation71 A.D.2d 1010,420 N.Y.S.2d 421
PartiesThe BANK OF NEW YORK, Appellant, v. PROGRESSIVE PHONE SYSTEMS, INC., et al., Defendants, Stanley Weidan et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Mullooly, Jeffrey, Rooney & Flynn, Carle Place (Bernard Jeffrey, Carle Place, of counsel), for appellant.

Before O'CONNOR, J. P., and LAZER, RABIN and GULOTTA, JJ.

MEMORANDUM BY THE COURT.

In an action based upon promissory notes and written guarantees, the appeal is from so much of an order of the Supreme Court, Nassau County, dated February 22, 1979, as denied the branch of plaintiff's motion which sought summary judgment against defendants Stanley Weidan and Antonio Cifarelli.

Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, and the branch of plaintiff's motion which sought summary judgment as against defendants Stanley Weidan and Antonio Cifarelli is granted.

Between October, 1977 and January, 1978, the appellant bank extended four loans, totalling $125,000, to defendant Progressive Phone Systems, Inc. (Progressive). Sometime before these loans were made, respondents, Stanley Weidan and Antonio Cifarelli, in consideration of loans made or to be made by appellant to Progressive, had executed written guarantees of payment. By its terms, each guaranty provided that it was continuing in nature and that it remained binding upon the guarantor until the bank received written notice of termination.

Progressive subsequently defaulted on its loans and appellant instituted the present action. In opposition to appellant's motion for summary judgment, respondent Weidan relied on the fact that more than a year before the loans in question were made, he orally notified one of appellant's officers that he wished his guaranty to be terminated and that the officer acknowledged and accepted the termination on behalf of appellant. Respondent Cifarelli relied upon an oral termination of his guaranty by several of appellant's officers. Cifarelli further argued in opposition to the motion that if for some reason it is construed that his personal guaranty is applicable, that said officers intentionally defrauded him and that he would have taken the necessary steps to terminate his guaranty had the officers not told him that the guaranty no longer applied.

Summary judgment should have been granted against respondent Weidan. Under subdivisions 1 and 4 of section 15-301 of the General...

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6 cases
  • Signature Apparel Grp. LLC v. Laurita (In re Signature Apparel Grp. LLC), Case No. 09-15378 (RG)
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • 4 Marzo 2015
    ...contractual notice provisions). This is true even where the parties agreed to the termination. See Bank of New York v. Progressive Phone Sys., Inc., 71 A.D.2d 1010, 1011 (2d Dep't 1979) (parties' oral agreement to terminate a contract ineffective where agreement required termination to be i......
  • Milliken and Co. v. Eagle Packaging Co.
    • United States
    • Minnesota Supreme Court
    • 3 Julio 1980
    ...343, 215 N.Y.S.2d 764 (1961). Recent New York case law follows Chemical Bank v. Wasserman. See Bank of New York v. Progressive Phone Systems, Inc., 71 A.D.2d 1010, 420 N.Y.S.2d 421 (1979); Joy v. Heidrick & Struggles, Inc., 93 Misc.2d 818, 403 N.Y.S.2d 613 (1977); Chemical Bank New York Tru......
  • Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co.
    • United States
    • New York Supreme Court — Appellate Division
    • 24 Diciembre 1990
    ...summary judgment where the movant's papers make out a prima facie basis for the grant of the motion" (Bank of New York v. Progressive Phone Systems, 71 A.D.2d 1010, 1011, 420 N.Y.S.2d 421). Nor may the appellant avoid liability by claiming that he failed to read the guarantee (see, Scarsdal......
  • Board of Managers of Windridge Condominiums One v. Horn
    • United States
    • New York Supreme Court — Appellate Division
    • 2 Diciembre 1996
    ...the Supreme Court properly granted the plaintiffs judgment as a matter of law on their complaint (see, Bank of New York v. Progressive Phone Systems, 71 A.D.2d 1010, 420 N.Y.S.2d 421). Further, the court properly granted the plaintiffs' motion to dismiss the defendants' affirmative defenses......
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