Opinion
July 11, 1986
Appeal from the Supreme Court, Oneida County, Donovan, J.
Present — Denman, J.P., Green, Pine, Balio and Schnepp, JJ.
Order, insofar as appealed from, unanimously reversed, on the law, without costs, and motion denied. Memorandum: When the guarantee and mortgage, both executed September 22, 1977, and the note executed the following day are read together (see, 38 N.Y. Jur, Mortgages and Deeds of Trust, § 66), there is a question of fact precluding summary judgment. Whether the parties intended the clause "any and all indebtedness * * * now or hereafter due and owing", to secure the future personal indebtedness of Dominick Gulla, or only the business indebtedness of "MICKEY'S AUTO LAND", which he owns, cannot be determined on this record (see, 38 N.Y. Jur, Mortgages and Deeds of Trust, §§ 57, 58; Eisenberg v Citation-Langley Corp., 99 A.D.2d 700, 701; Kaye v Keret, 89 A.D.2d 885, 886-887; cf. State Bank v Fioravanti, 51 N.Y.2d 638, 644-645).