Milliken & Co. v. Gans

82 A.D.2d 781, 440 N.Y.S.2d 655, 1981 N.Y. App. Div. LEXIS 14427

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 25, 1981
• Status: Published

Opinion

Order of the Supreme Court, New York County (Gabel, J.), entered May 29, 1980, which denied plaintiff-appellant’s motion for summary judgment, unanimously reversed, on the law, without costs, and summary judgment granted. The facts presented and documented by plaintiff, that Gans unconditionally guaranteed the debts of Global Woolens Corporation and that Global owed plaintiff over $4,300 were unrefuted by any facts presented by Gans. Although under the circumstances of this case, the guarantor Gans had the right to avail himself of any defense available to Global (Walcutt v Clevite Corp., 13 NY2d 48, 55-57), a search of the record fails to reveal any issue of fact requiring a trial. Notwithstanding Gans’ claim that there was an agreement between plaintiff and Global that the maximum yardage to be contained in each roll of fabric would not exceed 105 yards, defendant has not demonstrated that there is a factual issue as to roll size. The purchase contract between plaintiff and Global did not contain any reference to roll size. The contract provided that any deviation from its terms was required to be in writing. Defendant did not produce any such writing. Assuming that Gans’ claim of a contemporaneous agreement between plaintiff and Global as to roll size is not barred by subdivision (b) of section 2-202 of the Uniform Commercial Code, Gans did not produce any documentary evidence to support such contention. Accordingly, Gans’ allegations do not preclude summary judgment against him. Concur — Birns, J. P., Ross, Markewich, Bloom and Fein, JJ.