Alside Aluminum Supply Co. v. Berliner

Appellate Division of the Supreme Court of New York

Alside Aluminum Supply Co. v. Berliner

32 A.D.2d 731, 302 N.Y.S.2d 180, 1969 N.Y. App. Div. LEXIS 3991

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 15, 1969

StatusPublished

Cited by10 cases

This text of 32 A.D.2d 731 (Alside Aluminum Supply Co. v. Berliner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Alside Aluminum Supply Co. v. Berliner, 32 A.D.2d 731, 302 N.Y.S.2d 180, 1969 N.Y. App. Div. LEXIS 3991 (N.Y. Ct. App. 1969).

Pincite

Opinion

Order insofar as appealed from unanimously modified to the extent of deleting the first ordering paragraph thereof and by deleting the word “ answer ” from the second ordering paragraph thereof and as so modified affirmed, without costs. Memorandum: In opposing plaintiff’s motion for summary judgment on a guarantee agreement, appellant alleged that the agreement had been terminated prior to the accrual of any claim thereunder and presented proof (which was not denied by plaintiff) that plaintiff’s representatives orally agreed that the guarantee was no longer in [732]*732effect and would not be used against appellant. Plaintiff relies on the provision of the agreement that it would continue in full force and effect until canceled by written notice. This provision requiring written notice, being for the benefit of plaintiff, might be waived by it. (Sillman v. Twentieth Century-Fox, 3 N Y 2d 395, 402, 403; Axelrad v. Axelrad, 285 App. Div. 903, affd. 309 N. Y. 687; Knight v. Kitchen, 237 App. Div. 506, 512.) Where, as here, the guarantor has the right to limit the life of the contract by giving notice to terminate it in accordance with its provisions, his right is absolute (cf. New York Tel. Co. v. Jamestown Tel. Corp., 282 N. Y. 365, 372, 373) and if plaintiff, knowing of the guarantor’s intent to terminate, acquiesced therein and assured the guarantor that the agreement was no longer in effect and nobody would use it against him, such conduct on its part might well be found to constitute a waiver of the contract requirement of written notice of termination. Failure of appellant’s pleadings adequately to set forth any necessary allegation of waiver is not important at this stage of the proceedings because the pleadings may be amended. (Curry v. Mackenzie, 239 N. Y. 267). The facts presented sufficiently show the possibility of the existence of triable issues of fact to defeat plaintiff’s motion for summary judgment. (Sillman v. Twentieth Century-Fox, supra, p. 404.) (Appeal fom certain, parts of order of Onondaga Special Term granting motion for summary judgment.) Present—'Goldman, P. J., Marsh, Witmer, Moule and Henry, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order insofar as appealed from unanimously modified to the extent of deleting the first ordering paragraph thereof and by deleting the word “ answer ” from the second ordering paragraph thereof and as so modified affirmed, without costs. Memorandum: In opposing plaintiff’s motion for summary judgment on a guarantee agreement, appellant alleged that the agreement had been terminated prior to the accrual of any claim thereunder and presented proof (which was not denied by plaintiff) that plaintiff’s representatives orally agreed that the guarantee was no longer in [732]*732effect and would not be used against appellant. Plaintiff relies on the provision of the agreement that it would continue in full force and effect until canceled by written notice. This provision requiring written notice, being for the benefit of plaintiff, might be waived by it. (Sillman v. Twentieth Century-Fox, 3 N Y 2d 395, 402, 403; Axelrad v. Axelrad, 285 App. Div. 903, affd. 309 N. Y. 687; Knight v. Kitchen, 237 App. Div. 506, 512.) Where, as here, the guarantor has the right to limit the life of the contract by giving notice to terminate it in accordance with its provisions, his right is absolute (cf. New York Tel. Co. v. Jamestown Tel. Corp., 282 N. Y. 365, 372, 373) and if plaintiff, knowing of the guarantor’s intent to terminate, acquiesced therein and assured the guarantor that the agreement was no longer in effect and nobody would use it against him, such conduct on its part might well be found to constitute a waiver of the contract requirement of written notice of termination. Failure of appellant’s pleadings adequately to set forth any necessary allegation of waiver is not important at this stage of the proceedings because the pleadings may be amended. (Curry v. Mackenzie, 239 N. Y. 267). The facts presented sufficiently show the possibility of the existence of triable issues of fact to defeat plaintiff’s motion for summary judgment. (Sillman v. Twentieth Century-Fox, supra, p. 404.) (Appeal fom certain, parts of order of Onondaga Special Term granting motion for summary judgment.) Present—'Goldman, P. J., Marsh, Witmer, Moule and Henry, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

32 A.D.2d 731, 302 N.Y.S.2d 180, 1969 N.Y. App. Div. LEXIS 3991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alside-aluminum-supply-co-v-berliner-nyappdiv-1969.

Opinion

Related

Cite This Page — Counsel Stack