Summary
assuming arguendo that equipment lease secured by personal guarantee was a security agreement subject to U.C.C. § 9-504, court would give effect to language in guarantee expressly waiving right to notice of sale of equipment
Summary of this case from United States v. LowyOpinion
May 31, 1988
Appeal from the Supreme Court, Nassau County (Roncallo, J.).
Ordered that the order and judgment is affirmed, with costs.
The plaintiff's motion for summary judgment was properly granted after it made a prima facie showing of entitlement to judgment as a matter of law, as the defendant failed to establish the existence of a material triable issue of fact regarding his claim that the underlying agreement was not a true lease, but instead constituted a security agreement subject to the provisions of Uniform Commercial Code article 9 (see generally, Alvarez v Prospect Hosp., 68 N.Y.2d 320). In any event, even if it is assumed that the lease constitutes such a security agreement, we note that the guarantee executed by the defendant contains an express waiver of his alleged right to receive proper notice of the sale of the leased equipment pursuant to Uniform Commercial Code § 9-504 (3) (see, e.g., First City Div. v Vitale, 123 A.D.2d 207).
We have considered the defendant's remaining contentions and find them to be without merit. Mollen, P.J., Mangano, Eiber and Sullivan, JJ., concur.