Opinion
July 6, 1976
Order, Supreme Court, New York County, entered on January 15, 1976, denying plaintiff's cross-motion for leave to renew its motion for summary judgment, unanimously affirmed. Respondents shall recover of appellant $60 costs and disbursements of this appeal. The voluminous affidavits submitted at Special Term indicate the existence of irreconcilable issues of fact justifying the denial of plaintiff's motion. Such issues, in part, result from the fact that the guarantees in suit specifically provide that they are enforceable strictly in accordance with the terms and provisions of any "agreement(s), express or implied, which has (have) been or may hereafter be made or entered into by the Borrower [Intercontinental Mining Abrasives, Inc.]". Therefore, since the record shows that there exist disputes between the parties arising out of these agreements, the liability of the defendants on their guarantees must await the clarification of these disputes and other issues after having a trial.
Concur — Murphy, J.P., Lupiano, Birns and Capozzoli JJ.; Nunez, J., concurs on the authority of Long Is. Trust Co. v International Inst. for Packaging Educ. ( 38 N.Y.2d 493).