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Olympus America, Inc. v. Beverly Hills Surgical Institute

Supreme Court of New York, Second Department

October 30, 2013

Olympus America, Inc., respondent,
v.
Beverly Hills Surgical Institute, defendant, Michael Hayavi, appellant. Docket No. 39160/09

James E. Clark, Babylon, N.Y. for appellant.

Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Kieran X. Bastible of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, SHERI S. ROMAN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and breach of a personal guaranty, the defendant Michael Hayavi appeals from an order of the Supreme Court, Suffolk County (Whelan, J.), dated August 13, 2012, which granted the plaintiff's motion, inter alia, for summary judgment on the issue of liability on the fourth cause of action, which alleged breach of the subject personal guaranty.

ORDERED that the order is affirmed, with costs.

Contrary to the contentions of the defendant Michael Hayavi, the affidavit of the chief credit officer of the plaintiff's parent company adequately set forth the basis of the officer's knowledge (see IRB-Brasil Resseguros S.A. v Eldorado Trading Corp. Ltd., 68 A.D.3d 576, 577; Hospital for Joint Diseases v ELRAC, Inc., 11 A.D.3d 432, 433), established the admissibility of the documents appended to the affidavit as business records (see CPLR 4518; Burrell v Barreiro, 83 A.D.3d 984, 985; DeLeon v Port Auth. of N.Y. & N.J., 306 A.D.2d 146), and demonstrated the plaintiff's prima facie entitlement to judgment as a matter of law on the issue of liability against Hayavi pursuant to the personal guaranty that he executed (see Inland Mtge. Capital Corp. v Realty Equities NM, LLC, 71 A.D.3d 1089, 1090; Bank of Am., N.A. v Solow, 59 A.D.3d 304; Provident Bank v Giannasca, 55 A.D.3d 812).

Hayavi's proffered defense regarding the plaintiff's authority to transact business at the time it entered into the subject agreements was validly waived by the express terms of the personal guaranty (see Inland Mtge. Capital Corp. v Realty Equities NM, LLC, 71 A.D.3d at 1090; North Fork Bank v Computerized Quality Separation Corp., 62 A.D.3d 973, 974; Red Tulip, LLC v Neiva, 44 A.D.3d 204, 209). In any event, the plaintiff's motion papers demonstrated, prima facie, that this defense was without merit, and Hayavi failed to raise a triable issue of fact in opposition thereto (see generally Zuckerman v City of New York, 49 N.Y.2d 557, 563).

MASTRO, J.P., LEVENTHAL, LOTT and ROMAN, JJ., concur.


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