| North Fork Bank v ABC Merchant Servs., Inc. |
| 2008 NY Slip Op 02563 [49 AD3d 701] |
| March 18, 2008 |
| Appellate Division, Second Department |
| North Fork Bank, Respondent, v ABC Merchant Services,Inc., Defendant, and Ronald Christopher, Appellant. |
—[*1] Porzio, Bromberg & Newman P.C., New York, N.Y. (Allan I. Young of counsel), forrespondent.
In an action to recover on a promissory note and guaranty brought by motion for summaryjudgment in lieu of complaint pursuant to CPLR 3213, the defendant Ronald Christopherappeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County(Burke, J.), dated December 8, 2006, as granted that branch of the motion which was to recoveron the guaranty against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff demonstrated its entitlement to judgment as a matter of law by establishing thatthe defendant Ronald Christopher unconditionally guaranteed the payment of the obligations ofthe defendant ABC Merchant Services, Inc. (hereinafter ABC), arising out of a promissory notewhich Christopher signed in his capacity as president of ABC, that ABC defaulted on itsobligations under the terms of the promissory note, and that Christopher defaulted on hisobligations under the terms of the guaranty (see Suffolk County Natl. Bank v Columbia Telecom. Group, Inc., 38AD3d 644, 645 [2007]; Silver vSilver, 17 AD3d 281 [2005]; Sterling Vision v Joel, 279 AD2d 568 [2001];North Fork Bank v Rosen, 225 AD2d 598 [1996]; Bennell Hanover Assoc. v Neilson,215 AD2d 710, 711 [1995]; National Westminster Bank, U.S.A. v Barrier Tech. Corp.,131 AD2d 551 [1987]; Ihmels v Kahn, 126 AD2d 701 [1987]). In opposition,Christopher's conclusory and unsubstantiated assertions that were inconsistent with the unrefuteddocumentary evidence failed to raise a triable issue of fact regarding his contentions that theSupreme Court improperly exercised personal jurisdiction over him as a nondomiciliary and thathe [*2]was fraudulently induced by the plaintiff's representativeto sign the personal guaranty (see State Bank of India v Taj Lanka Hotels, 259 AD2d 291[1999]; O'Brien v O'Brien, 258 AD2d 446 [1999]; North Fork Bank v Rosen, 225AD2d 598 [1996]; Drake Am. Corp. v Speakman Co., 144 AD2d 529 [1988]). Moreover,since the guaranty, by its terms, was absolute and unconditional regardless of the validity orenforceability of any other obligation, and such recitals were inconsistent with Christopher'sclaim of fraud and reliance upon oral representations, fraud in the inducement is not a viabledefense to enforcement of the guaranty (see Citibank v Plapinger, 66 NY2d 90, 93[1985]; Korea Exch. Bank v A.A.Trading Co., 8 AD3d 344, 345 [2004]; Sacco v Sutera, 266 AD2d 446, 447[1999]).
Christopher's remaining contentions regarding improper service of process and vaguenessand ambiguity in a portion of the guaranty are raised for the first time on appeal and are thereforenot properly before this Court (seeLawler v City of Yonkers, 45 AD3d 813, 813-814 [2007]; Merchants Bank of N.Y. vStahl, 269 AD2d 236 [2000]). Fisher, J.P., Miller, McCarthy and Chambers, JJ., concur.