Opinion
March 1, 1978
Appeal from the Monroe Supreme Court.
Present — Marsh, P.J., Dillon, Hancock, Jr., Denman and Witmer, JJ.
Order and judgment unanimously modified in accordance with memorandum and, as modified, affirmed, without costs. Memorandum: Special Term granted plaintiff's motion for partial summary judgment on its first and third causes of action. The defendants Albert Tantalo and Kathy Tantalo appeal from the order and from the judgment entered thereon. The judgment on plaintiff's first cause of action was entered solely against the defendant Autotransformation, Inc., which has not appeared in the action and is in default. No argument is made for reversal on behalf of that corporation. Plaintiff's third cause of action is based upon a "Guaranty" allegedly executed by the defendants Albert Tantalo and Kathy Tantalo, which guaranteed payment of the indebtedness of the defendant Autotransformation, Inc., to the plaintiff for goods sold to the corporation. The defendant Albert Tantalo acknowledges that the guarantee was executed by him as an inducement for plaintiff to sell merchandise to Autotransformation, Inc., of which he was the president and sole stockholder. He fails to allege evidentiary facts showing that he has been relieved of his obligation under the guarantee or that the amount claimed is not due and owing to the plaintiff. No genuine issue of fact has been raised and partial summary judgment was properly granted against him on the third cause of action (see Andre v Pomeroy, 35 N.Y.2d 361; Capelin Assoc. v Globe Mfg. Corp., 34 N.Y.2d 338; Hartford Acc. Ind. Co. v Wesolowski, 33 N.Y.2d 169; Blake v Gardino, 35 A.D.2d 1022, affd 29 N.Y.2d 876; CPLR 3212, subd [b]). Special Term erred, however, in granting judgment against the defendant Kathy Tantalo. In her answer she denies that she executed the guarantee and in her affidavit in opposition to the motion she affirmatively asserts that the signature thereon is not hers. Moreover, she avers that she has no knowledge as to how her purported signature came to appear on the document. Since plaintiff's third cause of action is based solely upon the obligation arising from the guarantee, defendant Kathy Tantalo has raised a triable issue of fact.