| Sterling Natl. Bank v Biaggi |
| 2008 NY Slip Op 00162 [47 AD3d 436] |
| January 10, 2008 |
| Appellate Division, First Department |
| Sterling National Bank, Respondent, v Mario J. Biaggi, Jr.,Appellant, et al., Defendants. |
—[*1] Kaplan & Levenson, P.C., New York City (Scott A. Ziluck of counsel), forrespondent.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered October 5, 2006,which, insofar as appealed from, granted plaintiff bank's motion for partial summary judgment onthe issue of liability on its breach of guaranty cause of action against defendant Biaggi anddismissed Biaggi's affirmative defenses and counterclaims, unanimously affirmed, without costs.
The written personal guaranty of the subject loan executed by Biaggi unequivocally providesthat: (1) it is absolute and unconditional in all respects and enforceable irrespective of any otheragreements or circumstances which might otherwise constitute a defense to the guaranty andobligation of the guarantor under the loan agreement; (2) the guarantor absolutely,unconditionally and irrevocably waives any and all rights to assert any defense, set-off,counterclaim or cross claim of any nature whatsoever concerning the guarantor's obligationsunder the guaranty or the loan agreement; and (3) the guarantor waives the right to interpose anydefense based upon statute of limitations or any claim of laches and set-off or counterclaim ofany nature or description in any action in which plaintiff is an adverse party. Such language issufficiently specific to constitute a valid waiver of the right to plead defenses (see Citibank vPlapinger, 66 NY2d 90 [1985]; Raven El. Corp. v Finkelstein, 223 AD2d 378[1996], lv dismissed 88 NY2d 1016 [1996]), and accordingly, the court properly foundBiaggi liable on his guaranty, and dismissed his affirmative defenses and counterclaims to thebreach of guaranty cause of action. Even assuming that the waiver was invalid, and we were toreview the merits of Biaggi's affirmative defenses and counterclaims, we would conclude thatthey fail to raise a triable issue of fact on the issue of liability. Furthermore, the court properlydirected the issue of damages be determined at trial since plaintiff failed to tender sufficient proofas to the amount of the underlying debt and how it was calculated (see HSBC Bank USA vIPO, LLC, 290 AD2d 246 [2002]).[*2]
We have considered Biaggi's remaining contentions andfind them unavailing. Concur—Tom, J.P., Saxe, Friedman and Catterson, JJ.