Sellmore Industries, Inc. v. Energy Savers of WNY, Inc.

265 A.D.2d 927, 695 N.Y.S.2d 804, 1999 N.Y. App. Div. LEXIS 10067

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 1999
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion of Robert Bieber (defendant) for summary judgment dismissing the complaint against him. The record establishes that, on December 28, 1993, defendant executed an unconditional guarantee of the indebtedness of defendant Energy Savers of WNY, Inc. There is no merit to the contention of defendant that his liability as a guarantor terminated upon the subsequent incorporation of the business and upon the alteration of the terms of the guarantee without his consent. The subsequent incorporation of the business in May 1994 did not constitute a material change that discharged defendant’s liability as a guarantor (see, Fairview Block & Supply Corp. v

Miscione, Inc., 167 AD2d 814). The written guarantee is unconditional, and defendant’s allegations of parol representations setting forth conditions to the guarantee do not overcome the language of the guaranty (see, Citizens & S. Commercial Corp. v Catapano, 164 AD2d 812, 814). (Appeal from Order of Supreme Court, Erie County, Flaherty, J. — Summary Judgment.) Present — Pine, J. P., Lawton, Wisner, Hurlbutt and Callahan, JJ.