Opinion
March 18, 1971
Order, Supreme Court, New York County, entered on August 6, 1970, which denied plaintiff's motion for summary judgment and granted a cross motion directing plaintiff to submit to an examination before trial, unanimously reversed, on the law, and summary judgment granted in plaintiff's favor against the defendants, and an assessment of damages directed. Appellant shall recover of respondents $50 costs and disbursements of this appeal. Defendants-respondents signed and delivered to plaintiff bank written guarantees of payment of the obligations of the defendant Trans National Communications, Inc., of which they were officers, directors and stockholders. When the underlying obligations were not paid this action followed. Respondents claim that officers of plaintiff orally agreed to cancel the guarantees and not to look to the guarantors for payment thereof. Trans National guaranteed the obligations of two wholly-owned subsidiaries — Broadway Recording Studios, Inc., and TNC Networks, Inc. These two subsidiaries thereafter borrowed money from plaintiff on promissory notes which are long overdue and unpaid. In their answers, the respondents admit their execution of the guarantees and also admit that the underlying loans were unpaid. Each guarantee provides: "the undersigned * * * hereby absolutely and unconditionally guarantees to Bank the prompt payment of claims of every nature and description of Bank against [Transnational] * * * and any and every obligation and liability of [Transnational] to Bank * * * of whatsoever nature and howsoever evidenced, whether now existing or hereafter incurred". Each guarantee further provides that: "No executory agreement unless in writing and signed by Bank, and no course of dealing between Guarantor and Bank shall be effective to * * * discharge * * * this guarantee." (To the same effect see General Obligations Law, § 15-301.) Under the facts in this record respondents may not avoid their obligation to plaintiff bank, evidenced by a written instrument, by claiming that there was an oral representation or promise on the part of the bank not to enforce the guarantee according to its terms. (See Manufacturers Trust Co. v. Palmer, 13 A.D.2d 772; Bay Parkway Nat. Bank v. Shalom, 270 N.Y. 172; Mount Vernon Trust Co. v. Bergoff, 272 N.Y. 192; Rothschild v. Manufacturers Trust Co., 279 N.Y. 355.) Moreover, we find no support in this record for respondents' claim of estoppel based upon the bank's conduct. Plaintiff is entitled to summary judgment against the respondents. Settle order on notice.
Concur — Stevens, P.J., Nunez, Kupferman, McNally and Steuer, JJ.