Motion Date: 3/20/2013
This matter comes before the Court on Plaintiff PNC Bank, National Association's ("PNC") motion for partial summary judgment as to two counts of its Complaint - the third and ninth causes of action asserted against Defendants William S. Walsh, McGuggan L.L.C. ("McGuggan"), and Donald K. Gross, II (collectively, the "Guarantors" or "Defendants"). Defendants oppose the motion, arguing, in part, that this pre-discovery motion is premature. For the reasons that follow, the Court grants Plaintiff s motion.
I. Background 
The instant litigation stems from an April 6, 2007 loan agreement entered into by PNC and MG Forge Construction, LLC ("MG Forge"). (PNC Rule 19-a Statement ¶1.) Defendants Walsh, McGuggan, and Gross each provided PNC with a payment guaranty for MG Forge's obligations under the loan agreement. Id. ¶9. The guaranty provided that the Guarantors "hereby waive all suretyship defenses and any rights to interpose any defense, counterclaim or offset of any nature and description which [the Guarantors] may have or which may exist between and among [PNC and MG Forge] with respect to [the Guarantors'] obligations under this Guaranty, or which [MG Forge] may assert on the underlying debt..." Id. ¶13.
Between October 2007 and May 2012, PNC and MG Forge entered into nineteen amendments to the loan agreement. (PNC Rule 19-a Statement ¶5.) In each of the nineteen amendments, MG Forge represented and warranted that it "has no defense, counterclaim or offset with respect to the Loan Agreement, " Id. ¶ 6. Moreover, each of the nineteen amendments was "consented and agreed to" by the Guarantors. Id. ¶7.
The loan agreement, as amended by Amendment Nineteen, expired on May 31, 2012. Id. ¶ 3. Under the terms of the agreement, MG Forge was required to pay all amounts owed to PNC on that date. Id. When neither MG Forge nor the Guarantors made payment, id. ¶ 4, PNC filed the instant action.
Pertinent to the instant motion, PNC brings a claim for breach of the guaranty against the Guarantors (count three) and likewise requests attorney's fees from each Defendant pursuant to the guaranty (count nine). PNC now seeks summary judgment on these claims.
A. Summary Judgment Standard
It is well-understood that summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established the absence of any material issues of fact, requiring judgment as a matter of law. Vega v, Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012) (citing AIvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986)). Despite the sufficiency of the opposing papers, "the failure to make such a showing requires denial of the motion." Winegradv. New York Univ. Med. Ctr, 64 N.Y.2d 851, 853 (1985).
Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). When deciding a motion for summary judgment, the Court must view the evidence in the light ...