E.D.S. Security Systems, Inc. v. Allyn

262 A.D.2d 351, 691 N.Y.S.2d 567, 1999 N.Y. App. Div. LEXIS 6335

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1999
• Status: Published

Opinion

—In an action to recover on a personal guarantee, the defendant appeals from a judgment of the Supreme Court, Suffolk County (Emerson, J.), entered May 11, 1998, which, upon an order of the same court, dated March 27, 1998, granting the plaintiffs’ motion for summary judgment, is in favor of the plaintiffs and against him in the principal sum of $82,698.67.

Ordered that the judgment is affirmed, with costs.

The plaintiffs sustained their initial burden of demonstrating their entitlement to judgment as a matter of law by submitting proof of the existence of an underlying note, a guarantee, and the failure to make payment in accordance with their terms (see, CPLR 3213; Capital Circulation Corp. v Gallop Leasing Corp., 248 AD2d 578). It was then incumbent upon the defendant to demonstrate, by admissible evidence, the existence of a triable issue of fact with respect to a bona fide defense (see, Colonial Commercial Corp. v Breskel Assocs., 238 AD2d 539).

The Supreme Court properly determined that the plain language of the guarantee precluded the defendant from raising the defenses of fraud in the inducement and lack of consideration (see, Citibank v Plapinger, 66 NY2d 90; Raven El. Corp. v Finkelstein, 223 AD2d 378; Harrison Ct. Assocs. v 220 Westchester Ave. Assocs., 203 AD2d 244).

In any event, the defendant’s unsupported, conclusory allegations with respect to these defenses were insufficient to defeat the plaintiffs’ motion (see, Zuckerman v City of New York, 49 NY2d 557; Capital Circulation Corp. v Gallop Leasing Corp., supra).

The defendant’s remaining contentions are without merit. O’Brien, J. P., Santucci, Altman and H. Miller, JJ., concur.