Summary
holding defendant's defense of overcharges was barred by the unconditional guaranty
Summary of this case from Moon 170 Mercer, Inc. v. VellaOpinion
April 4, 1994
Appeal from the Supreme Court, Nassau County (Murphy, J.).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248).
The plaintiff's motion papers, which include the guarantee and note in question, were sufficient to establish its entitlement to summary judgment in lieu of complaint (see, CPLR 3213; Federal Deposit Ins. Corp. v Jacobs, 185 A.D.2d 913). In opposition to the plaintiff's summary judgment motion, the guarantors, the defendants Duncomb N.V. and Leo S. Ullman, the Vice President of that corporation, raised the defense that no consideration was given on behalf of the plaintiff at or about the time of the execution of the guarantee (see, e.g., Walcutt v Clevite Corp., 13 N.Y.2d 48, remittitur amended 13 N.Y.2d 903; European Am. Bank Trust Co. v Boyd, 131 A.D.2d 629). However, upon examination of the plain language of the guarantee, which provides, inter alia, (1) that the defendants Duncomb and Ullman would "absolutely and unconditionally" guarantee repayment of the plaintiff's mortgage loan to the defendant 220-230 Westchester Avenue Associates, and (2) that the guarantee "shall not be affected, modified or impaired by any state of facts or the happening from time to time of any event, including * * * [t]he invalidity, irregularity, illegality or unenforceability of, or any defect in" the note, or the guarantee itself, we find that the defendants are precluded from asserting the defense of lack of consideration with respect to the plaintiff's right to enforce the guarantee (see, Citibank v Plapinger, 66 N.Y.2d 90; Gannett Co. v Tesler, 177 A.D.2d 353).
In light of the forgoing conclusion, we need not address the parties' remaining contentions with respect to the adequacy of the consideration supporting the plaintiff's enforcement of the guarantee.
We have examined the defendants' remaining contention and find that it is without merit. Lawrence, J.P., Joy, Friedmann and Krausman, JJ., concur.