Banque Worms v. Andre Cafe Ltd.

183 A.D.2d 494, 583 N.Y.S.2d 438, 1992 N.Y. App. Div. LEXIS 6858

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 1992
• Status: Published

Opinion

— Order and judgment (one paper), Supreme Court, New York County (Carol E. Huff, J.), entered April 3, 1991, which, inter alia, granted plaintiff summary judgment against defendants on causes one, two and four of the complaint in the aggregate amount of $1,347,820.98, unanimously affirmed, with costs.

A guarantor is bound by an anticipatory agreement in his undertaking that he will not be relieved of liability by a modification of the principal contract (Chase Manhattan Bank v Kahn, 66 AD2d 704, 705; see also, Banco Portugues do Atlantico v Asland, S. A., 745 F Supp 962, 967-970), and the short form power of attorney executed by Felix Max Sfez authorized and empowered Andre Moise Sfez, his brother and president of defendant and principal obligor, Andre Cafe Ltd., to act in his name, place and stead with respect to "banking transactions” and "all other matters” (General Obligations Law § 5-1502D [17]; cf., Twyeffort v Unexcelled Mfg. Co., 263 NY 6, 9, rearg denied 263 NY 585). Accordingly, defendant Felix Sfez is liable under the guarantee, even though the time for making payments was extended for the principal obligor by plaintiff.

As to the amount of the indebtedness or the alleged usurious nature thereof, defendants have not produced any evidence supporting their claims, and it is uncontroverted plaintiff never charged or collected interest at a rate in excess of 13.5%, in accordance with the term loan agreement. Finally, as to the remaining issues raised by defendants, many of which are raised for the first time on appeal, a review finds them lacking in merit. Concur — Murphy P. J., Sullivan, Carro, Rosenberger and Rubin, JJ.