Opinion
Argued October 14, 1999
November 30, 1999
In an action, inter alia, to recover damages for fraud and breach of fiduciary duty, the defendant Emanuele J. Sutera appeals from so much of an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated June 19, 1998, as denied his cross motion for summary judgment on his counterclaim to recover on a personal guarantee.
Heller, Horowitz Feit, P.C., New York, N.Y. (Stuart A. Blander and May Orenstein of counsel), for appellant.
George F. Sacco, Staten Island, N.Y., respondent pro se.
MYRIAM J. ALTMAN, J.P., HOWARD MILLER, ROBERT W. SCHMIDT, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the cross motion is granted.
The appellant sustained his initial burden of demonstrating his entitlement to judgment as a matter of law by submitting proof of the existence of an underlying note, a guarantee, and the failure to make payment in accordance with their terms ( see, Governor Co. of Bank of Ireland v. Dromoland Castle, 212 A.D.2d 759; Gateway State Bank v. Shangri-La Private Club for Women, 113 A.D.2d 791). It was thus incumbent upon the plaintiff to demonstrate, by admissible evidence, the existence of a triable issue of fact with respect to a bona fide defense ( see, North Fork Bank v. Hamptons Mist Mgt. Corp., 225 A.D.2d 595; Coniglio v. Regan, 186 A.D.2d 709; Inter Business Mktg. v. Kronengold, 135 A.D.2d 474; Mohegan Elec. Supply Co. v. Pesach, 94 A.D.2d 717; see generally, Moezinia v. Baroukhian, 247 A.D.2d 452; Phillips v. Cioffi, 204 A.D.2d 94).
Here, the plain language of the guarantee precluded the plaintiff from raising the defense of fraud in the inducement ( see, Citibank v. Plapinger, 66 N.Y.2d 90; E.D.S. Security Sys. v. Allyn, 262 A.D.2d 351 [2d Dept., June 7, 1999]; Raven El. Corp. v. Finkelstein, 223 A.D.2d 378; Harrison Ct. Assocs. v. 220 Westchester Ave. Assocs., 203 A.D.2d 244. Moreover, the Supreme Court improperly found that the plaintiff raised a triable issue of fact as to whether the appellant had been paid in full. The plaintiff's unsupported conclusory allegations with respect to both defenses were insufficient to defeat the appellant's motion ( see, Green v. Darwish, 171 A.D.2d 644; Fidelity N.Y. v. Hanover Cos., 148 A.D.2d 577; Ihmels v. Kahn, 126 A.D.2d 701).
The plaintiff's remaining contentions are without merit.
ALTMAN, J.P., H. MILLER, SCHMIDT, and SMITH, JJ., concur.