Opinion
April 11, 1994
Appeal from the Supreme Court, Kings County (I. Aronin, J.).
Ordered that the judgment is affirmed, with costs.
The plaintiff commenced an action against the defendant to enforce a guarantee agreement pursuant to which the defendant guaranteed repayment of up to $85,000 for payments made by the plaintiff to the nonparty Interfilms, Inc. in the event that Interfilms failed to deliver film stock ordered by the plaintiff.
The defendant argues that he is not liable on the guarantee agreement for a variety of reasons, none of which has merit. Contrary to the defendant's assertions on appeal, there is no evidence, and the record does not support an inference, that a novation occurred between the plaintiff and Interfilms (see, Chipouras Assocs. v 212 Realty Corp., 156 A.D.2d 549; Wasserstrom v Interstate Litho Corp., 114 A.D.2d 952; 22 N.Y. Jur 2d, Contracts, § 401). Further, even if there were further dealings between the plaintiff and Interfilms, or the plaintiff allowed Interfilms additional time to perform, or the plaintiff accepted partial performance by Interfilms, these factors alone, in the absence of a binding commitment that altered the underlying sales contract, would not discharge the defendant's duty under the guarantee agreement (see, Bier Pension Plan Trust v Estate of Schneierson, 74 N.Y.2d 312; Becker v Faber, 280 N.Y. 146; Congregation Ohavei Shalom v Comyns Bros., 123 A.D.2d 656; Kehoe v Backer, 142 N.Y.S 691; 63 N.Y. Jur 2d, Guaranty and Suretyship, §§ 194, 197). Although the orders for the film at issue predated the guarantee agreement, the guarantee concerns payments made by the plaintiff to Interfilms (not orders placed) after its execution. Thus, the date of the payment, which is after the execution of the guarantee agreement, controls.
We have considered the defendant's remaining contentions and find them to be without merit. Bracken, J.P., Lawrence, Copertino and Florio, JJ., concur.