Bankers Trust Co. v. J. Gerber & Co.

56 A.D.2d 552, 391 N.Y.S.2d 862, 1977 N.Y. App. Div. LEXIS 10559

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 1977
• Status: Published

Opinion

Order, Supreme Court, New York County, entered August 2, 1976, which denied the plaintiffs motion for summary judgment without prejudice to renew after disclosure, unanimously reversed, on the law, and the motion granted, with $60 costs and disbursements to appellant. The defendant by written agreement guaranteed an indebtedness of a company which was indebted to the bank for some $50,000 and to the defendant for some $500,000. Although the guarantee is not labeled an unconditional guarantee, by its terms it sets no conditions. (Cf. Long Is. Trust Co. v International Inst, for Packaging Educ., 38 NY2d 493.) However, the defendant contends that it really meant that in the event of the debtor company’s failure, its assets would be divided proportionately between the bank and the defendant guarantor. Among other things, a consideration for the bank receiving the guarantee was its forebearance to exercise its right of setoff against an account of the debtor, although this account was minimal when compared to the amount owed. If the interpretation contended for by the defendant of the guarantee is rejected, as it now is, it seeks reformation in order to have the language conform to its contention. However, there is no basis for such reformation in view of the fact that the principal of the defendant guarantor negotiated with the bank’s officers and was fully familiar with the language in the guarantee agreement, having originally been the draftsman thereof. Settle order on notice. Concur—Kupferman, J. P., Birns, Capozzoli and Markewich, JJ.