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Gelmin v. Sequa Capital Corporation

Appellate Division of the Supreme Court of New York, Second Department
Mar 2, 2000
269 A.D.2d 492 (N.Y. App. Div. 2000)

Opinion

Argued January 7, 2000

March 2, 2000

Timothy F. Butler, New York, N.Y., for appellant.

Bondy Schloss, LLP, New York, N.Y. (Mark A. Harmon and Karen S. Baseman of counsel), for respondent.

THOMAS R. SULLIVAN, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN, ROBERT W. SCHMIDT, JJ.


In an action, inter alia, pursuant to General Obligations Law § 5-511 Gen. Oblig.(2) for a judgment declaring that a promissory note executed by the plaintiff in favor of the defendant is void, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Gerard, J.), entered September 10, 1998, which, upon an order of the same court, dated February 19, 1998, granting the defendant's motion, among other things, for summary judgment on its second counterclaim to recover on a guaranty executed in its favor by the plaintiff, is in favor of the defendant and against him in the principal sum of $200,000 on the guaranty and $100,000 for an attorney's fee.


DECISION ORDER

ORDERED that the judgment is affirmed, with costs.

The defendant established its prima facie entitlement to summary judgment on its second counterclaim against the plaintiff (see,O'Brien v. O'Brien, 258 A.D.2d 446 ; Hunter v. McDowell, 254 A.D.2d 460 ;George L. Penny, Inc. v. Zaweski, 254 A.D.2d 255 ). It is undisputed that the plaintiff guaranteed a promissory note executed by a corporation of which he was the sole shareholder and that no payments were made upon the promissory note.

In opposition to the defendant's motion, the plaintiff asserted that the defendant breached separate agreements between it and two corporations owned by the plaintiff. However, since the plaintiff was a guarantor, he was not entitled to assert the alleged breaches of contract as a defense to the counterclaim (see,European Am. Bank v. Lofrese, 182 A.D.2d 67 ; North Fork Bank Trust Co. v. Bernstein Gershman, 201 A.D.2d 472 ). In any event, as the breach of contract causes of action raised by the plaintiff are separable from the defendant's counterclaim to recover upon the promissory note, the Supreme Court properly awarded summary judgment to the defendant on the second counterclaim (see, Harris v. Miller, 136 A.D.2d 603 ; Vinciguerra v. Northside Partnership, 188 A.D.2d 861 ).

The plaintiff's contention that he raised an issue of fact by referring to unpleaded defenses of waiver, bad faith, and estoppel in his opposition papers is without merit.

Under the facts of this case, there is no merit to the plaintiff's contention that the attorney's fee awarded by the court was excessive.


Summaries of

Gelmin v. Sequa Capital Corporation

Appellate Division of the Supreme Court of New York, Second Department
Mar 2, 2000
269 A.D.2d 492 (N.Y. App. Div. 2000)
Case details for

Gelmin v. Sequa Capital Corporation

Case Details

Full title:JEFFREY GELMIN, appellant, v. SEQUA CAPITAL CORPORATION, respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 2, 2000

Citations

269 A.D.2d 492 (N.Y. App. Div. 2000)
707 N.Y.S.2d 108

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