Sweeters v. Hodges

Appellate Division of the Supreme Court of New York

Sweeters v. Hodges

256 A.D.2d 185, 683 N.Y.S.2d 9, 1998 N.Y. App. Div. LEXIS 13726

Appellate Division of the Supreme Court of the State of New York·Decided December 22, 1998·Published·Cited by 1 cases

Opinion

—Order and judgment (one paper), Supreme Court, New York County (Lewis Friedman, J.), entered September 29, 1997, which denied plaintiff’s motion for summary judgment and granted summary judgment in favor of defendant dismissing the action, unanimously affirmed, with costs.

A guarantor is liable to the creditor only for the amount of the principal obligor’s default (see, GE Capital Mtge. Servs. v Pinnacle Mtge. Inv. Corp., 897 F Supp 842, 848, n 3). Accordingly, because the principal obligor herein is not in default, its obligation having been duly suspended pursuant to the subordination agreement executed by plaintiff, no amount is now due under the guarantee upon which plaintiff premises his right to recover. Since there is no amount now due, plaintiff has not yet been damaged, and the action was properly dismissed (cf., Rodin Props.—Shore Mall v Ullman, 253 AD2d 403). We have considered plaintiffs remaining arguments and find them unavailing. Concur — Milonas, J. P., Rosenberger, Ellerin and Rubin, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Order and judgment (one paper), Supreme Court, New York County (Lewis Friedman, J.), entered September 29, 1997, which denied plaintiff’s motion for summary judgment and granted summary judgment in favor of defendant dismissing the action, unanimously affirmed, with costs.

A guarantor is liable to the creditor only for the amount of the principal obligor’s default (see, GE Capital Mtge. Servs. v Pinnacle Mtge. Inv. Corp., 897 F Supp 842, 848, n 3). Accordingly, because the principal obligor herein is not in default, its obligation having been duly suspended pursuant to the subordination agreement executed by plaintiff, no amount is now due under the guarantee upon which plaintiff premises his right to recover. Since there is no amount now due, plaintiff has not yet been damaged, and the action was properly dismissed (cf., Rodin Props.—Shore Mall v Ullman, 253 AD2d 403). We have considered plaintiffs remaining arguments and find them unavailing. Concur — Milonas, J. P., Rosenberger, Ellerin and Rubin, JJ.

Sweeters v. Hodges, 256 A.D.2d 185, 683 N.Y.S.2d 9, 1998 N.Y. App. Div. LEXIS 13726 (N.Y. Ct. App. 1998).

Pincite

256 A.D.2d 185 (Sweeters v. Hodges) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related