Opinion
January 29, 1996
Appeal from the Supreme Court, Suffolk County (Oshrin, J.).
Ordered that the judgment is affirmed insofar as appealed from, with costs.
In light of the affidavits submitted in opposition to the plaintiff's motion for summary judgment, the Supreme Court properly directed a hearing on the affirmative defense of release ( see, CPLR 3212 [c], [e]; 3211 [a] [5]). Moreover, the Supreme Court properly exercised its discretion by narrowing the scope of the hearing to whether the principle of estoppel or waiver precluded the plaintiff from seeking a deficiency judgment and enforcement of the personal guarantees in this case ( see, CPLR 3212 [g]). Finally, since the written evidence does not support the appellants' claims regarding either waiver or estoppel, the Supreme Court properly found that the plaintiff was not prevented from enforcing the guarantees and seeking a deficiency judgment ( see, e.g., Werking v Amity Estates, 2 N.Y.2d 43, 52; Airco Alloys Div. v Niagara Mohawk Power Corp., 76 A.D.2d 68, 81-82; cf., Kings County Trust Co. v Derx, 237 App. Div. 548, 550; Witherell v Kelly, 195 App. Div. 227). Santucci, J.P., Altman, Friedmann and Florio, JJ., concur.