North Fork Bank & Trust Co. v. Bernstein & Gershman

• Decision Date: 07 February 1994
• Citation: 201 A.D.2d 472,607 N.Y.S.2d 135
• Parties: NORTH FORK BANK & TRUST COMPANY, Appellant, v. BERNSTEIN & GERSHMAN, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 135

607 N.Y.S.2d 135

201 A.D.2d 472

NORTH FORK BANK & TRUST COMPANY, Appellant, v. BERNSTEIN & GERSHMAN, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Feb. 7, 1994.

Wickham, Wickham & Bressler, P.C., Mattituck (Eric J. Bressler, of counsel), for appellant.

Bernstein & Gershman, Garden City (Marshall A. Bernstein, of counsel), for respondent Gershman and respondent pro se.

Before MANGANO, P.J., and BALLETTA, SANTUCCI and HART, JJ.

MEMORANDUM BY THE COURT.

In an action to recover amounts due under two promissory notes and guarantees, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Jones, J.), entered August 5, 1991, which denied its motion for summary judgment and for a determination of attorneys' fees.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the defendants' affirmative defenses and counterclaims are dismissed, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing on the reasonableness of the attorneys' fees owed to the plaintiff under the promissory notes and guarantees which are the subject of the action.

Contrary to the finding of the Supreme Court, there were no triable issues of fact which warranted the denial of the plaintiff's motion for summary judgment. The plaintiff clearly stated valid causes of action and established personal jurisdiction and proper venue. Moreover, by proof of the existence of the notes, the guarantees, and the default in payment thereof, the plaintiff demonstrated its right to summary judgment against all of the defendants (see, Curwil Constr. Corp. v. RHP Dev. Corp., 194 A.D.2d 514, 598 N.Y.S.2d 306 [2d Dept., 1993]. To the extent that the defendants relied upon prior or contemporaneous negotiations with the plaintiff at the time of the execution of the notes and guarantees in order to vary the terms of those documents, such assertions violated the parol evidence rule (see, Benderson Dev. Co., Inc. v. Hallaway Props., 67 N.Y.2d 963, 502 N.Y.S.2d 1001, 494 N.E.2d 106; Citibank v. Plapinger, 66 N.Y.2d 90, 94-95, 495 N.Y.S.2d 309, 485 N.E.2d 974; Braten v. Bankers Trust Co., 60 N.Y.2d 155, 162, 468 N.Y.S.2d 861, 456 N.E.2d 802; Marine Midland Bank-Southern v. Thurlow, 53 N.Y.2d 381, 387, 442 N.Y.S.2d 417, 425 N.E.2d 805; Bank of New York v. Kranis, 189 A.D.2d 741, 592 N.Y.S.2d 67). The defendants' assertion that the plaintiff orally agreed to accept certain collateral in lieu of taking any action on the notes and the guarantees is inconsistent with the plain terms of the notes, the guarantees, and a December 6, 1990, letter which was executed by the defendants Marshall Bernstein and Richard Gershman. Moreover, such an alleged agreement must be in writing...