Bank of America, N.A. v. Tatham

Appellate Division of the Supreme Court of New York

Bank of America, N.A. v. Tatham

305 A.D.2d 183, 757 N.Y.S.2d 855, 2003 N.Y. App. Div. LEXIS 5260

Appellate Division of the Supreme Court of the State of New York·Decided May 8, 2003·Published·Cited by 7 cases

Opinion

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered October 1, 2002, which, to the extent appealed from, in an action to enforce a personal guaranty of payment of a loan, granted plaintiff’s motion for summary judgment against defendant-guarantor for the unpaid principal balance of $10,748,891.10 plus interest and late charges, unanimously affirmed, with costs.

Plaintiff’s motion for summary judgment was properly granted upon proof of the loan documents, including the guaranty agreement, and failure to pay in accordance therewith (see Samsung Am. v Noah, 209 AD2d 367 [1994], lv denied 85 NY2d 804 [1995]; 117-14 Union Turnpike Assoc. v County Dollar Corp., 187 AD2d 357 [1992]). Defendant’s conclusory allegation of irregularities on the signature page of the guaranty agreement was insufficient to raise a triable issue of fact (see National Westminster Bank USA v Sardi’s Inc., 174 AD2d 470 [1991]). Nor was summary judgment avoidable on the ground that further discovery was needed, since defendant failed to demonstrate that facts essential to justify his opposition to the motion may yet be disclosed (see Bailey v New York City Tr. Auth., 270 AD2d 156, 157 [2000]).

Although defendant contends that the guaranty agreement was unconscionable, the legal presumption to the contrary went unrebutted by defendant, who we note is an active and experienced president of a company that had borrowed over $50 million from plaintiff’s predecessor (see Chrysler Credit Corp. v Kosal, 132 AD2d 686 [1987]).

We have reviewed defendant’s remaining arguments and [184] find them unavailing. Concur — Saxe, J.P., Williams, Marlow and Gonzalez, JJ.

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Order, Supreme Court, New York County (Richard Lowe, III, J.), entered October 1, 2002, which, to the extent appealed from, in an action to enforce a personal guaranty of payment of a loan, granted plaintiff’s motion for summary judgment against defendant-guarantor for the unpaid principal balance of $10,748,891.10 plus interest and late charges, unanimously affirmed, with costs.

Plaintiff’s motion for summary judgment was properly granted upon proof of the loan documents, including the guaranty agreement, and failure to pay in accordance therewith (see Samsung Am. v Noah, 209 AD2d 367 [1994], lv denied 85 NY2d 804 [1995]; 117-14 Union Turnpike Assoc. v County Dollar Corp., 187 AD2d 357 [1992]). Defendant’s conclusory allegation of irregularities on the signature page of the guaranty agreement was insufficient to raise a triable issue of fact (see National Westminster Bank USA v Sardi’s Inc., 174 AD2d 470 [1991]). Nor was summary judgment avoidable on the ground that further discovery was needed, since defendant failed to demonstrate that facts essential to justify his opposition to the motion may yet be disclosed (see Bailey v New York City Tr. Auth., 270 AD2d 156, 157 [2000]).

Although defendant contends that the guaranty agreement was unconscionable, the legal presumption to the contrary went unrebutted by defendant, who we note is an active and experienced president of a company that had borrowed over $50 million from plaintiff’s predecessor (see Chrysler Credit Corp. v Kosal, 132 AD2d 686 [1987]).

We have reviewed defendant’s remaining arguments and [184] find them unavailing. Concur — Saxe, J.P., Williams, Marlow and Gonzalez, JJ.

Bank of America, N.A. v. Tatham, 305 A.D.2d 183, 757 N.Y.S.2d 855, 2003 N.Y. App. Div. LEXIS 5260 (N.Y. Ct. App. 2003).

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