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Estate of Broche v. Tai

Supreme Court, Appellate Division, Second Department, New York.
Aug 15, 2012
98 A.D.3d 601 (N.Y. App. Div. 2012)

Opinion

2012-08-15

ESTATE OF Agnes M. BROCHE, etc., appellant, v. Maria TAI, respondent.

Watson, Farley & Williams, LLP, New York, N.Y. (Neil A. Quartaro of counsel), for appellant. Thomas F. Farley, P.C., White Plains, N.Y., for respondent.


Watson, Farley & Williams, LLP, New York, N.Y. (Neil A. Quartaro of counsel), for appellant. Thomas F. Farley, P.C., White Plains, N.Y., for respondent.

In an action to recover on a guarantee, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated October 19, 2011, which denied its motion for summary judgment, and granted the defendant's cross motion for summary judgment dismissing the action.

ORDERED that the order is affirmed, with costs.

In order to recover on a guarantee, a plaintiff must establish that payment on the underlying debt was due ( see Griffon V, LLC v. 11 East 36th, LLC, 90 A.D.3d 705, 706, 934 N.Y.S.2d 472;Superior Fid. Assur., Ltd. v. Schwartz, 69 A.D.3d 924, 925, 893 N.Y.S.2d 256). In support of her cross motion for summary judgment dismissing the action, the defendant established, prima facie, that the underlying transaction was timely canceled, and that payment pursuant to the underlying mortgage and note was not due. In opposition, the plaintiff failed to raise a triable issue of fact. Thus, the defendant's cross motion for summary judgment dismissing the action was properly granted and, for the same reason, the plaintiff's motion for summary judgment in lieu of complaint was properly denied.

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

DILLON, J.P., LEVENTHAL, AUSTIN and ROMAN, JJ., concur.


Summaries of

Estate of Broche v. Tai

Supreme Court, Appellate Division, Second Department, New York.
Aug 15, 2012
98 A.D.3d 601 (N.Y. App. Div. 2012)
Case details for

Estate of Broche v. Tai

Case Details

Full title:ESTATE OF Agnes M. BROCHE, etc., appellant, v. Maria TAI, respondent.

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: Aug 15, 2012

Citations

98 A.D.3d 601 (N.Y. App. Div. 2012)
2012 N.Y. Slip Op. 5956
949 N.Y.S.2d 651

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