Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co.

• Decision Date: 24 December 1990
• Citation: 168 A.D.2d 610,563 N.Y.S.2d 449
• Parties: MARINE MIDLAND BANK, N.A., Respondent, v. DINO & ARTIE'S AUTOMATIC TRANSMISSION CO., et al., Defendants, Arturo Defeo, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 449

563 N.Y.S.2d 449

168 A.D.2d 610

MARINE MIDLAND BANK, N.A., Respondent, v.DINO & ARTIE'S AUTOMATIC TRANSMISSION CO., et al., DefendantsArturo Defeo, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 24, 1990.

Michael Fuller Sirignano, White Plains, for appellant.

Before THOMPSON, J.P., and LAWRENCE, KUNZEMAN and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover upon a note executed by the corporate defendant and an unlimited continuing guarantee executed by the defendantArturo Defeo, the defendantArturo Defeo appeals from a judgment of the Supreme Court, Westchester County(Delaney, J.), entered July 13, 1988, which, upon granting the plaintiff's motion for summary judgment in an order of the same court entered June 28, 1988, is in favor of the plaintiff and against the appellant in the sum of $16,896.42.

ORDERED that the judgment is affirmed, without costs or disbursements.

It is well settled that "the drastic remedy of summary judgment is appropriate only where a thorough examination of the merits clearly demonstrates the absence of any triable issues of fact"(Piccirillo v. Piccirillo, 156 A.D.2d 748, 750, 549 N.Y.S.2d 509;Hantz v. Fishman, 155 A.D.2d 415, 416, 547 N.Y.S.2d 350).Moreover, the parties' competing contentions must be viewed "in a light most favorable to the party opposing the motion"(Lakeside Constr. v. Depew & Schetter Agency, 154 A.D.2d 513, 514-515, 546 N.Y.S.2d 136).

In the instant case, the appellant neither denied execution of an unlimited continuing guarantee nor claimed that he ever gave written notice of termination which the guarantee required.The claimed oral termination of the guarantee is without legal effect.Inasmuch as the guarantee specifically provided that it could only be revoked by a writing, the appellant continued to remain legally obligated as...