Manufacturers Hanover Trust Co. v. Green
| Decision Date | 23 June 1983 |
| Citation | 95 A.D.2d 737,464 N.Y.S.2d 474 |
| Parties | MANUFACTURERS HANOVER TRUST COMPANY, Plaintiff-Appellant, v. S. William GREEN, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
M.S. Oberman, New York City, for plaintiff-appellant.
R.T. Foltin, New York City, for defendant-respondent.
Before SANDLER, J.P., and ROSS, ASCH and BLOOM, JJ.
Order of the Supreme Court, New York County, entered March 28, 1983, which denied plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213 and directed plaintiff to serve its complaint, is reversed on the law, with costs and disbursements of this appeal payable by defendant, the motion by plaintiff is granted, and an assessment of plaintiff's reasonable attorney's fees is directed.
This is an action to recover $3,585,000 pursuant to three personal guarantees dated January 29, 1981, in which defendant, a limited partner, who was entitled to receive 98% of the profits, guaranteed all obligations of three general partnerships named Gem State Associates I, II and III. The partnerships borrowed the three and one half million dollars from plaintiff Manufacturers Hanover Trust Company as evidenced by three promissory notes dated June 30, 1981.
Upon the motion, plaintiff recited the terms of the promissory notes, which included interest keyed to the bank's prime rate; defendant's guarantees; that due written demand for payment was made May 14, 1982; that the partnerships defaulted in making payment as required by the notes; and, that pursuant to the terms of his guarantees defendant owed plaintiff the amount of the notes. The notes, guarantees and demand letter were appended to the moving papers.
Defendant claimed the general partner of each partnership was changed on December 23, 1980, and that plaintiff had actual or constructive notice of such changes. On that basis, defendant asserted the notes were not validly made by any of the partnerships since they were signed by a limited rather than a general partner.
Special Term found that the guarantees were not for a sum certain but relied on the promissory notes, and therefore could not be deemed "instrumentfor the payment of money only" (CPLR 3213). It further found that defendant had raised an issue of fact regarding the validity of the underlying promissory notes.
This holding by Special Term was in error. A guarantee may be the proper subject of a motion for summary judgment in lieu of complaint whether or not it recites a sum certain. The need to refer to the underlying promissory notes to establish the amount of liability does not affect the availability of CPLR 3213 (see American Bank...
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