Opinion
December 3, 1992
Appeal from the Supreme Court, New York County (Karla Moskowitz, J.).
Despite the provision in its acceleration clause making failure to deliver certain commodities an event of default, the note qualified as an instrument for the payment of money only, and the action was thus properly commenced by summons and notice of motion pursuant to CPLR 3213 (Kornfeld v NRX Technologies, 93 A.D.2d 772, affd 62 N.Y.2d 686).
The parol evidence rule precludes defendants from establishing that they were fraudulently induced to sign the note and that there was a subsequent failure of consideration (see, Marine Midland Bank v Thurlow, 53 N.Y.2d 381).
Plaintiff's alleged failure to disclose its intention to leave the pepper trading business cannot amount to fraudulent concealment sufficient to defeat the motion, as the parties' brief business relationship was not a confidential one creating a duty to speak (cf., Apple Records v Capitol Records, 137 A.D.2d 50, 57).
Finally, upon the primary obligor's default the individual defendant was properly held liable under the guarantee of payment clause (see, State of New York v Peerless Ins. Co., 117 A.D.2d 370, 373), which he signed in his individual capacity (see, Republic Natl. Bank v GSO Inc., 177 A.D.2d 417, 418).
Concur — Sullivan, J.P., Milonas, Wallach, Ross and Asch, JJ.