Key Bank of New York, N. A. v. K.H. Associates

Appellate Division of the Supreme Court of New York

Key Bank of New York, N. A. v. K.H. Associates

210 A.D.2d 769, 620 N.Y.S.2d 537, 1994 N.Y. App. Div. LEXIS 13069

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 22, 1994

StatusPublished

Cited by3 cases

This text of 210 A.D.2d 769 (Key Bank of New York, N. A. v. K.H. Associates) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Key Bank of New York, N. A. v. K.H. Associates, 210 A.D.2d 769, 620 N.Y.S.2d 537, 1994 N.Y. App. Div. LEXIS 13069 (N.Y. Ct. App. 1994).

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Opinion

Yesawich Jr., J.

Appeal from an order of the Supreme Court (Cardona, J.), entered September 13, 1993 in Albany County, which, inter alia, granted plaintiffs motion for summary judgment.

In this action to recover on a promissory note given to obtain a construction loan, defendants, the promisor and a guarantor, admit having executed the note and guaranty, having received $275,000 of the promised loan of $575,000 and having defaulted in repayment. In opposition to plaintiffs motion for summary judgment, the guarantor, defendant Olga B. Mahl, avers that plaintiff failed to meet its obligations under the building loan agreement, incorporated by reference into the note, in that it refused to provide the additional advances called for by that agreement, thereby rendering it impossible for defendants to complete the project from which they intended to obtain the funds for repayment. As noted by Supreme Court, however, plaintiff had no obligation to make further funds available until furnished with documentation reflecting the progress of the construction. The record is barren of any indication that defendants tendered that documentation.

Moreover, defendants’ contrary argument notwithstanding, the record discloses no facts warranting an inference that plaintiff anticipatorily breached the agreement by "words or acts evincing an intention to refuse performance in the fu[770]*770ture” (22 NY Jur 2d, Contracts, § 387, at 295). Rather, in Mahl’s affidavit, which contains the only evidence defendants proffer to withstand plaintiff’s motion, she simply states that plaintiff refused "to make requested advances” despite "numerous oral and written requests”; even if these conclusory allegations, wholly lacking in any specificity or detail, are accepted as true (but see, European Am. Bank v Streisand, 177 AD2d 301, 302, lv dismissed 80 NY2d 826), they in no way demonstrate an intention on plaintiff’s part to refuse to provide additional funds when defendants satisfy the prerequisites for those advances. Nor have defendants produced anything that might justify further discovery in this respect.

Mikoll, J. P., Mercure, Crew III and White, JJ., concur. Ordered that the order is affirmed, with costs.

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Yesawich Jr., J.

Appeal from an order of the Supreme Court (Cardona, J.), entered September 13, 1993 in Albany County, which, inter alia, granted plaintiffs motion for summary judgment.

In this action to recover on a promissory note given to obtain a construction loan, defendants, the promisor and a guarantor, admit having executed the note and guaranty, having received $275,000 of the promised loan of $575,000 and having defaulted in repayment. In opposition to plaintiffs motion for summary judgment, the guarantor, defendant Olga B. Mahl, avers that plaintiff failed to meet its obligations under the building loan agreement, incorporated by reference into the note, in that it refused to provide the additional advances called for by that agreement, thereby rendering it impossible for defendants to complete the project from which they intended to obtain the funds for repayment. As noted by Supreme Court, however, plaintiff had no obligation to make further funds available until furnished with documentation reflecting the progress of the construction. The record is barren of any indication that defendants tendered that documentation.

Moreover, defendants’ contrary argument notwithstanding, the record discloses no facts warranting an inference that plaintiff anticipatorily breached the agreement by "words or acts evincing an intention to refuse performance in the fu[770]*770ture” (22 NY Jur 2d, Contracts, § 387, at 295). Rather, in Mahl’s affidavit, which contains the only evidence defendants proffer to withstand plaintiff’s motion, she simply states that plaintiff refused "to make requested advances” despite "numerous oral and written requests”; even if these conclusory allegations, wholly lacking in any specificity or detail, are accepted as true (but see, European Am. Bank v Streisand, 177 AD2d 301, 302, lv dismissed 80 NY2d 826), they in no way demonstrate an intention on plaintiff’s part to refuse to provide additional funds when defendants satisfy the prerequisites for those advances. Nor have defendants produced anything that might justify further discovery in this respect.

Mikoll, J. P., Mercure, Crew III and White, JJ., concur. Ordered that the order is affirmed, with costs.

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210 A.D.2d 769, 620 N.Y.S.2d 537, 1994 N.Y. App. Div. LEXIS 13069, Counsel Stack Legal Research, https://law.counselstack.com/opinion/key-bank-of-new-york-n-a-v-kh-associates-nyappdiv-1994.

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