SEOULBANK, NEW YORK AGENCY v. D & J Export & Import Corp.

• Decision Date: 30 March 2000
• Citation: SEOULBANK, NEW YORK AGENCY v. D & J Export & Import Corp., 270 A.D.2d 193, 707 N.Y.S.2d 12 (N.Y. App. Div. 2000)
• Parties: SEOULBANK, NEW YORK AGENCY, Respondent,<BR>v.<BR>D & J EXPORT & IMPORT CORP. et al., Defendants, and BAEK SUN LEE, Appellant.
• Court: New York Supreme Court — Appellate Division

270 A.D.2d 193

707 N.Y.S.2d 12

SEOULBANK, NEW YORK AGENCY, Respondent,

v.D & J EXPORT & IMPORT CORP. et al., Defendants, and BAEK SUN LEE, Appellant.

Decided March 30, 2000.

Concur — Sullivan, P. J., Williams, Mazzarelli, Wallach and Lerner, JJ.

Baek Sun Lee's contention that this action is barred by the applicable six-year Statute of Limitations was properly rejected.The limitations period on a guaranty does not commence until the principal, here D & J Export & Import Corp.(D & J), is in default (Bayside Fuel Oil Depot Corp. v Savino Oil & Heating Co.,133 AD2d 658;see also, Columbus Trust Co. v Campolo,110 AD2d 616, 617, affd66 NY2d 701).This occurred, at the earliest, on May 13, 1994, within six years of the March 27, 1997 commencement of this suit.

However, there is an issue of fact which precludes granting Seoulbank's motion for summary judgment against defendantBaek Sun Lee.There is a question whether defendant Lee's purported signature on the July 31, 1984 guaranty was forged by his sister, Min Cha Kim.Mr. Lee's affidavit states that he came to the United States in 1980 and that he did not comprehend, read or write English until 1985.He also denies having seen the guaranty until confronted with it in this litigation.While Mr. Lee's sister, Ms. Kim, submitted an affidavit admitting that she forged her brother's signature on the guaranty, the court disregarded Ms. Kim's affidavit because of two technical defects: (1) the notary's signature on the affidavit was illegible; and (2) there is no indication what date in April 1998 the document was notarized.The court should have ignored these technical defects and assessed whether there was an outstanding issue of the forgery of Mr. Lee's signature (Baluchinsky v General Motors Corp.,248...