Opinion
December 8, 1994
Appeal from the Supreme Court, New York County (Beverly Cohen, J.).
Plaintiff guarantors' purported waiver of the defense of commercial reasonableness in their guaranties was ineffective (Marine Midland Bank v CMR Indus., 159 A.D.2d 94, 102-107 [2d Dept]; Marine Midland Bank v Kristin Intl., 141 A.D.2d 259 [4th Dept]; see also, Bank of China v Chan, 937 F.2d 780, 785-786 [2d Cir]; contra, First City Div. of Chase Lincoln First Bank v Vitale, 123 A.D.2d 207 [3d Dept]). Summary judgment on defendant's counterclaims was properly denied, there being issues of fact whether defendant acted in a commercially reasonable manner in disposing of certain assets of the debtor (see, Bankers Trust Co. v Dowler Co., 47 N.Y.2d 128, 134-135; Marine Midland Bank v CMR Indus., supra, at 107), raised, inter alia, by proof tending to show a significant discrepancy between the price obtained by defendant for those assets and their actual value.
We have considered defendant's other contentions and find them to be unpersuasive.
Concur — Ellerin, J.P., Kupferman, Williams and Tom, JJ.