North Fork Bank v. Abc Merchant Services, Inc.

• Decision Date: 18 March 2008
• Docket Number: 2007-02534.
• Citation: North Fork Bank v. Abc Merchant Services, Inc., 49 A.D.3d 701, 853 N.Y.S.2d 633, 2008 NY Slip Op 2563 (N.Y. App. Div. 2008)
• Parties: NORTH FORK BANK, Respondent, v. ABC MERCHANT SERVICES, INC., Defendant, and RONALD CHRISTOPHER, Appellant.
• Court: New York Supreme Court — Appellate Division

49 A.D.3d 701

853 N.Y.S.2d 633

2008 NY Slip Op 02563

NORTH FORK BANK, Respondent, v.ABC MERCHANT SERVICES, INC., Defendant, and RONALD CHRISTOPHER, Appellant.

2007-02534.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided March 18, 2008.

In an action to recover on a promissory note and guaranty brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendant Ronald Christopher appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Burke, J.), dated December 8, 2006, as granted that branch of the motion which was to recover on the guaranty against him.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff demonstrated its entitlement to judgment as a matter of law by establishing that the defendantRonald Christopher unconditionally guaranteed the payment of the obligations of the defendantABC Merchant Services, Inc.(hereinafter ABC), arising out of a promissory note which Christopher signed in his capacity as president of ABC, that ABC defaulted on its obligations under the terms of the promissory note, and that Christopher defaulted on his obligations under the terms of the guaranty (seeSuffolk County Natl. Bank v Columbia Telecom. Group, Inc.,38 AD3d 644, 645[2007];Silver v Silver,17 AD3d 281[2005];Sterling Vision v Joel,279 AD2d 568[2001];North Fork Bank v Rosen,225 AD2d 598[1996];Bennell Hanover Assoc. v Neilson,215 AD2d 710, 711[1995];National Westminster Bank, U.S.A. v Barrier Tech. Corp.,131 AD2d 551[1987];Ihmels v Kahn,126 AD2d 701[1987]).In opposition, Christopher's conclusory and unsubstantiated assertions that were inconsistent with the unrefuted documentary evidence failed to raise a triable issue of fact regarding his contentions that the Supreme Court improperly exercised personal jurisdiction over him as a nondomiciliary and that he was fraudulently induced by the plaintiff's representative to sign the personal guaranty (seeState Bank of India v Taj Lanka Hotels,259 AD2d 291[1999];O'Brien v O'Brien,258 AD2d 446[1999];North Fork Bank v Rosen,225 AD2d 598[1996];Drake Am. Corp. v Speakman Co.,144 AD2d 529[1988]).Moreover, since the guaranty, by its terms, was absolute and unconditional regardless of the validity or enforceability of any other obligation, and such recitals were inconsistent with Christopher's claim of fraud and reliance upon oral representations, fraud in the...