NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
February 24, 2009
BANK OF AMERICA, N.A., PLAINTIFF-RESPONDENT,
SHELDON H. SOLOW, DEFENDANT-APPELLANT.
Judgment, Supreme Court, New York County (Bernard J. Fried, J.), entered June 12, 2008, awarding plaintiff the principal sum of $15,910,000, on a guarantee, and bringing up for review an order, same court and Justice, entered April 18, 2008, which granted plaintiff's CPLR 3213 motion for summary judgment in lieu of complaint on the aforementioned guarantee and denied defendant's cross motion to dismiss, unanimously affirmed, with costs. Appeal from the aforesaid order unanimously dismissed, without costs, as subsumed within the appeal for the judgment.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Gonzalez, J.P., Sweeny, Renwick, Freedman, JJ.
Plaintiff demonstrated its entitlement to summary judgment by establishing the existence of a guaranty and submitting an affidavit of nonpayment (see JP Morgan Chase Bank, N.A. v Complete Envtl. Servs., Inc., 21 Misc 3d 1113A [Sup Ct Nassau Cty 2008]). The guaranty was absolute and unconditional, expressly waived demand or presentment and was expressly made a primary obligation of the defendant, so that no formal demand, beyond the motion in lieu of complaint itself, was necessary to state a cause of action on the guaranty (cf. First Natl. Bank v Story, 200 NY 346, 354 ). Recourse to CPLR 3213 was appropriate, since the guaranty was a "an instrument for the payment of money only" (CPLR 3213). The fact that the obligations guaranteed were evidenced in a series of underlying mortgages and modifications did not alter this fact, where the amount due was stipulated, and thus plain on the face of the document (see European Am. Bank v Lofrese, 182 AD2d 67, 71 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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