Bank of Smithtown v. Beckhans

90 A.D.2d 508, 454 N.Y.S.2d 1001, 1982 N.Y. App. Div. LEXIS 18548

Opinion

In an action, inter alia, upon a guarantee, plaintiff appeals from an order of the Supreme Court, Suffolk County (D’Amaro, J.), entered December 1, 1981, which denied its motion for partial summary judgment against the defendant guarantor, Albert Denham. Order reversed, on the law, without costs or disbursements, and motion granted. The respondent does not deny execution of the guarantee and concedes that the guarantee is, by its terms, a continuing agreement. Rather, the respondent alleges that he had no intention of executing a continuing guarantee agreement and that he executed the guarantee only because the “bank told him that the guarantee was for the original loan only.” On a motion for summary judgment, the moving party has an obligation to produce all the evidence within his ken, as upon a trial. The same obligation rests upon the party opposing summary judgment. Here, the respondent’s affidavit contains nothing of an evidentiary nature to support his claim that he entered into the continuing guarantee because of a fraud practiced against him by the plaintiff as to the continuing nature of the guarantee. It is limited to conclusory language such as is quoted above. That being so, the respondent has failed to present evidence demonstrating the existence of any genuine triable issues of fact. Accordingly, the order must be reversed and the motion for partial summary judgment against him granted. Mollen, P. J., Lazer, Mangano and Niehoff, JJ., concur.