| Bank of Am., N.A. v Solow |
| 2009 NY Slip Op 01350 [59 AD3d 304] |
| February 24, 2009 |
| Appellate Division, First Department |
| Bank of America, N.A., Respondent, v Sheldon H. Solow,Appellant. |
—[*1] Stroock & Stroock & Lavan LLP, New York (Kevin L. Smith of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bernard J. Fried, J.), entered June 12, 2008,awarding plaintiff the principal sum of $15,910,000, on a guarantee, and bringing up for reviewan order, same court and Justice, entered April 18, 2008, which granted plaintiff's CPLR 3213motion for summary judgment in lieu of complaint on the aforementioned guarantee and denieddefendant's cross motion to dismiss, unanimously affirmed, with costs. Appeal from theaforesaid order unanimously dismissed, without costs, as subsumed within the appeal from thejudgment.
Plaintiff demonstrated its entitlement to summary judgment by establishing the existence ofa guaranty and submitting an affidavit of nonpayment (see JPMorgan Chase Bank, N.A. vComplete Envtl. Servs., Inc., 21 Misc 3d 1113[A], 2008 NY Slip Op 52062[U] [Sup Ct,Nassau County 2008]). The guaranty was absolute and unconditional, expressly waived demandor presentment and was expressly made a primary obligation of the defendant, so that no formaldemand, beyond the motion in lieu of complaint itself, was necessary to state a cause of actionon the guaranty (cf. First Natl. Bank of Waterloo v Story, 200 NY 346, 354 [1911]).Recourse to CPLR 3213 was appropriate, since the guaranty was "an instrument for the paymentof money only" (CPLR 3213). The fact that the obligations guaranteed were evidenced in aseries of underlying mortgages and modifications did not alter [*2]this fact, where the amount due was stipulated, and thus plain onthe face of the document (see European Am. Bank v Lofrese, 182 AD2d 67, 71 [1992]).Concur—Gonzalez, J.P., Sweeny, Renwick and Freedman, JJ. [See 19 Misc 3d1123(A), 2008 NY Slip Op 50830(U).]