SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
May 3, 2011
J. KINGS FOOD SERVICE PROFESSIONALS, INC.,
MARCOS A. SILVA,
Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered February 25, 2010. The order, insofar as appealed from as limited by the brief, denied plaintiff's motion for summary judgment.
J. Kings Food Serv. Professionals, Inc. v Silva
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on May 3, 2011
PRESENT :NICOLAI, P.J., MOLIA and IANNACCI, JJ
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
Plaintiff sold food and other supplies to San Juliani, LLC (San
Juliani), which operated the Laguna restaurant. Defendant, a former
co-owner of San Juliani, had guaranteed the payment of all of San
Juliani's obligations to plaintiff, "now existing or hereafter
arising." After bankruptcy proceedings were commenced by San Juliani,
plaintiff brought this action against defendant, pursuant to his
guaranty, to recover monies that San Juliani allegedly owed plaintiff.
Immediately following the joinder of issue, and before any discovery
had occurred, plaintiff moved for summary judgment. By submitting
proof of the existence of an underlying obligation, defendant's
personal guaranty of the obligation, and San Juliani's failure to pay
at least some portion of its obligation, plaintiff made out a prima
facie case against defendant on the issue of liability (see HSBC Bank
USA, N.A. v Laniado, 72 AD3d 645 ; City of New York v Clarose
Cinema Corp., 256 AD2d 69, 71 ). However, in his opposing
papers, defendant commented that no discovery had yet been had, and,
noting that he had previously relinquished any ownership interest in
San Juliani, raised an issue of fact as to the amount of San Juliani's
debt to plaintiff which remained unpaid. The obligor on a guaranty can
properly assert a defense with respect to the amount due from the
guarantor's principal to the plaintiff (see H.H.
& F.E. Bean, Inc. v Travelers Indem. Co., 67 AD2d 1102, 1103 ).
Moreover, even if a plaintiff has met his initial burden of making out a
prima facie case in an action on a guaranty, a motion for summary judgment
in such an action is premature where discovery may disclose that issues of fact exist as to whether the sums in issue have been paid,
in whole or in part (see Gera v All-Pro Athletics, Inc., 57 AD3d 726, 728 ). The District Court thus properly denied plaintiff's motion for summary judgment.
The order of the District Court is, accordingly, affirmed.
Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: May 03, 2011
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