Columbus Trust Co. v. Campolo

• Decision Date: 01 April 1985
• Citation: 487 N.Y.S.2d 105,110 A.D.2d 616
• Parties: The COLUMBUS TRUST COMPANY, Appellant, v. Mary CAMPOLO, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 105

487 N.Y.S.2d 105

110 A.D.2d 616

The COLUMBUS TRUST COMPANY, Appellant, v.Mary CAMPOLO, Respondent.

Supreme Court, Appellate Division Second Department.

April 1, 1985.

Milton M. Schussheim, Highland Falls, for appellant.

Vincent Geraci, Newburgh, for respondent.

Before O'CONNOR, J.P., and BROWN, LAWRENCE and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover on an unconditional guarantee of payment, plaintiff appeals from an order of the Supreme Court, Orange County, dated April 9, 1984, which denied its motion for summary judgment.

Order reversed, on the law, with costs, and motion granted.

Based upon a review of the record, we conclude that summary judgment should have been granted in favor of plaintiff.At an examination before trial, defendant admitted that the signature on the written guarantee upon which plaintiff now seeks to recover was her own.In her affidavit submitted in opposition to plaintiff's subsequent motion for summary judgment, however, defendant apparently sought to retract her earlier admission and state that she never executed the purported guarantee.Defendant also claimed that plaintiff failed to adequately explain the full consequences of her execution of the subject guarantee and failed to call her attention to the fact that she could only terminate the guarantee in writing.

It is well established that on a motion for summary judgment, the court must determine whether the factual issues presented are genuine or unsubstantiated."If the issue claimed to exist is not 'genuine, but feigned, and * * * there is in truth nothing to be tried' summary judgment is properly granted"(Rubin v. Irving Trust Co., 305 N.Y. 288, 306, 113 N.E.2d 424, citingCurry v. Mackenzie, 239 N.Y. 267, 270, 146 N.E. 375).In this case, defendant's feigned attempt to avoid the consequences of her earlier testimonial admission regarding the authenticity of her signature is insufficient to raise a triable issue of fact to defeat a motion for summary judgment.Moreover, defendant's allegations that she was unaware of the legal ramifications of her execution of the guarantee and was not informed of the terms thereof, do not constitute a basis upon which to deny recovery to plaintiff.As a general rule, the signer of a written agreement is conclusively bound by its terms unless there is a showing of fraud, duress or some other wrongful act on the part of any party to the contract (Pimpinello v. Swift & Co., 253 N.Y. 159, 162-163, 170 N.E. 530;Son Fong Lum v. Antonelli, 102 A.D.2d 258, 476 N.Y.S.2d 921).Since defendant has not come forth with any evidence to establish fraud or duress or that she was incompetent and thus unable to comprehend the contents of the guarantee (Pimpinello v. Swift & Co., supra, 253 N.Y. pp. 162-163, 170 N.E. 530), she is thereby bound by its terms.

The six affirmative defenses contained in defendant's answer are without merit.First, contrary to defendant's position, plaintiff's action is not barred by the Statute of Limitations.While the subject guarantee was executed in August, 1973, the first loan made by plaintiff in reliance upon said guarantee was not made until September, 1978 and the principal corporation did not default on said loan until on or about December, 1981.Accordingly, this action, which was commenced in or about October 1982 was not barred by the applicable six-year Statute of Limitations (CPLR 213[2];cf.Gazza v. United California Bank Intl., 88 A.D.2d 968, 451 N.Y.S.2d 806).

Second, as stated above, defendant's allegations of fraud and duress are unsubstantiated by any evidentiary facts and are thus insufficient to raise a triable issue of fact necessary to defeat a motion for summary judgment(Freedman v. Chemical Constr. Corp., 43 N.Y.2d 260, 401 N.Y.S.2d 176, 372 N.E.2d 12).

Third, defendant's allegation that the guarantee was not...