Himan v. King Bear Auto Service Centers, Inc.

62 A.D.2d 1010, 403 N.Y.S.2d 772, 1978 N.Y. App. Div. LEXIS 11059

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 1978
• Status: Published

Opinion

In an action against the makers and guarantors of a promissory note, plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County, dated May 25, 1977, as denied her motion for summary judgment and for dismissal of the defendant Gabriel Di Tillio’s counterclaims. Order modified, on the law, by adding thereto, after the provision that the motion is "denied”, the following: "as to defendant Blaker. The plaintiffs motion is otherwise granted.” As so modified, order affirmed insofar as appealed from, with one bill of $50 costs and disbursements to plaintiff payable jointly by defendants appearing separately and filing separate briefs, except defendant Blaker. Our examination of the record discloses no basis for the finding of Special Term that disputed issues of fact exist surrounding the alleged tender to plaintiff by defendant Di Tillio to satisfy the corporate note. Rather, we find from the affidavits in support of and in opposition to plaintiff’s motion for summary judgment, that the tender was not unconditional and therefore could not serve to discharge the party making the tender of his obligation as guarantor of the note. We are reversing as to defendant Blaker solely by reason of her statement that what purported to be her signature on the indorsement of the note was not in fact her signature. That allegation raises an issue of fact as to defendant Blaker. Hopkins, J. P., Martuscello, Latham and Shapiro, JJ., concur.