noting that a “guarantee, which states that it is absolute and unconditional and that the guarantors waive the right to interpose any defenses, effectively waived the defense of ... failure of consideration”Summary of this case from Lehman Bros. Holdings Inc. v. Jpmorgan Chase Bank, N.A. (In re Lehman Bros. Holdings Inc.)
March 21, 2002.
Order, Supreme Court, Bronx County (George Friedman, J.), entered on or about January 22, 2001, which, inter alia, granted plaintiff's motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.
ROBERT FIERMAN, for plaintiff-respondent.
KEVIN J. NASH, for defendants-appellants.
Before: Tom, J.P., Mazzarelli, Rosenberger, Wallach, Marlow, JJ.
The motion court properly found the individual defendants liable on their guarantee. The guarantee, which states that it is absolute and unconditional and that the guarantors waive the right to interpose any defenses, effectively waived the defenses of fraud in the inducement and failure of consideration defendants would now raise (see, e.g.,Citibank, N.A. v. Plapinger, 66 N.Y.2d 90, 92-93; Gannett Co. v. Tesler, 177 A.D.2d 353). Defendants' argument, that summary judgment as to liability should be denied because there are triable issues as to whether the sale of the collateral given as security for the loan guaranteed by them was conducted in a commercially reasonable manner, is unavailing. Whether defendants are liable upon their guarantee is an issue which may be resolved apart from and in advance of any determination as to whether the sale of the collateral was conducted in commercially reasonable fashion, the latter being relevant in the present litigation only to the determination of damages (see, European Am. Bank v. Khan, 175 A.D.2d 704, 708).
We have examined defendants' remaining argument and find it unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.