Meadow Brook Nat. Bank v. Feraca

• Decision Date: 02 February 1962
• Citation: 33 Misc.2d 616,224 N.Y.S.2d 846
• Parties: MEADOW BROOK NATIONAL BANK, Plaintiff, v. Steve E. FERACA and Leon S. Poll, Defendants.
• Court: New York Supreme Court

Page 846

224 N.Y.S.2d 846

33 Misc.2d 616

MEADOW BROOK NATIONAL BANK, Plaintiff, v. Steve E. FERACA and Leon S. Poll, Defendants.

Supreme Court, Special Term, Nassau County, Part I.

Feb. 2, 1962.

Lee Franklin, Mineola, Stephen Davis, Kew Gardens, of counsel, for plaintiff.

Levy, Galotta & Cibbarelli, New York City, for defendant Feraca.

Kurzman & Frank, New York City, Isidore Minkin, New York City, of counsel, for defendant Poll.

MARIO PITTONI, Justice.

This is a motion pursuant to Rules 103, 113 and 114, Rules of Civil Practice, to strike the answers and grant summary judgment to plaintiff on the ground that the denials are sham and the defenses insufficient in law.

The action is against defendants as guarantors of payment of loans made to two corporations.

1. As to that portion seeking to strike the denials as sham: Paragraph 2 of the complaint alleges that the guaranty was made 'to induce Central Bank and Trust Co.' (Later consolidated into plaintiff) to make loans and advances. Defendants admit execution of the instrument, but deny the balance of the paragraph. This denial is not sham. The instrument (annexed to the moving papers as Exhibit A) specifically states that it was to induce the National Bank of Great Neck to make loans. Though there is no such allegation in the complaint, the moving affidavit states that after the date of the instrument 'the National Bank of Great Neck changed its name to the Central Bank and Trust Company', and in a deposition the Vice President of plaintiff stated that the National Bank surrendered its national character and obtained a New York charter, thus becoming a State Bank under the title of Central Bank and Trust Company. Defendants' affidavit asserts that this was a special guaranty that could be relied on only by the National Bank. While merger of the corporate creditor does not cause a change of identity (McElwain Co. v. Primavera, 180 App.Div. 288, 167 N.Y.S. 815) there would seem to be some doubt where there is a change of status from a national bank to a state bank (City National Bank of Poughkeepsie v. Phelps, 86 N.Y. 484). At any rate, the denial of the allegation as made in the complaint cannot be viewed as sham in view of the express terms of the guaranty.

Paragraph 3 of the complaint alleges loans made to the corporate principals in April, 1959. Defendants deny knowledge or information thereof sufficient to form a belief. Defendants' affidavit states that at the time of the guaranty they were stockholders, officers and directors of the corporations, but had severed all relations prior to April, 1959. Thus defendants neither conclusively nor presumptively have knowledge of the loans, and by this form of denial may put plaintiff to its proof. (Kirschbaum v. Eschmann, 205 N.Y. 127, 98 N.E. 328). Nor do the moving papers supply defendants with information. Though the moving affidavit states that copies of corporate notes evidencing the alleged loans are annexed as Exhibit B, there is in fact no Exhibit B annexed.

Paragraph 4 alleges that Central was consolidated into plaintiff and that plaintiff is entitled to any monies due Central. Such matter is a matter of public record, and therefore a denial of any knowledge or information may be treated as sham. (Dahlstrom v. Gemunder, 198 N.Y. 449, 92 N.E. 106; Rochkind v. Pearlman, 123 App.Div. 808, 108 N.Y.S. 224.) This denial should be stricken as sham.

Paragraph 5 alleges that there is now due and owing by defendants to plaintiff the sum of $25,328.11. The denial thereof is not sham.

2. The other branch of the motion was treated by the parties as one to strike the two affirmative defenses as insufficient in law:

Affidavits are not usable on such a motion, and the facts brought to the court's attention on the other phase of the motion may not be considered. (St. Regis Tribe of Mohawk Indians v. State of New York, 5 N.Y.2d 24, 177 N.Y.S.2d 289, 152 N.E.2d 411).

The first affirmative defense pleads oral termination of defendants' guaranty, and the second defense pleads an estoppel to claim liability on future loans based on plaintiff's oral statements that no further action was needed to terminate liability after defendants' oral notice of termination. Under common law a continuing guarantor could be terminated orally. The complaint does not allege that this instrument contained a provision that the guarantee was not to be terminated orally. Therefore, section 33-c of the Personal Property Law is inapplicable, and the common law governs. (Associated Food Stores v . Siegel, 2d Dept., 10 A.D.2d 1003, 205 N.Y.S.2d 208.) Further, section 33(2) of the Personal Property Law requiring either a consideration or a writing to effect a modification or discharge is not applicable; it refers to contracts. Here the instrument was but a continuing offer of guaranty, and binding as a contract only when accepted...