| North Fork Bank v Computerized Quality Separation Corp. |
| 2009 NY Slip Op 04214 [62 AD3d 973] |
| May 26, 2009 |
| Appellate Division, Second Department |
| North Fork Bank, Respondent, v Computerized QualitySeparation Corp. et al., Respondents, and Norman J. Tepfer et al., Appellants, et al.,Defendants. |
—[*1] Jaspan Schlesinger Hoffman, LLP, Garden City, N.Y. (Stephen L. Ukeiley, Christopher D.Palmieri, and Scott Fisher of counsel), for plaintiff-respondent. Pittoni, Bonchonsky & Zano, LLP, Garden City, N.Y. (M. John Pittoni of counsel), fordefendants-respondents.
In an action, inter alia, to recover on a promissory note, the defendants Norman J. Tepfer andJerry Tepfer appeal, as limited by their brief, from stated portions of an order of the SupremeCourt, Suffolk County (Weber, J.), dated August 23, 2007, which, inter alia, granted that branchof the plaintiff's motion which was for summary judgment dismissing the counterclaim assertedby them to recover damages for breach of the covenant of good faith and fair dealing and, ineffect, upon searching the record, awarded summary judgment to the defendants ComputerizedQuality Separation Corp. and Barry Green dismissing the cross claim for contractualindemnification asserted by them against those defendants.
Ordered that the order is modified, on the law, by deleting the provision thereof which, ineffect, upon searching the record, awarded summary judgment to the defendants ComputerizedQuality Separation Corp. and Barry Green dismissing the cross claim for contractualindemnification asserted against those defendants by the defendants Norman Tepfer and JerryTepfer; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
The Supreme Court properly granted that branch of the plaintiff's motion which was forsummary judgment dismissing the counterclaim asserted against it by the defendants Norman J.Tepfer and Jerry Tepfer (hereinafter together the Tepfers) to recover damages for breach of thecovenant of good faith and fair dealing. The plaintiff established, prima facie, its entitlement tojudgment as a matter of law by submitting evidence that the personal guarantees executed by theTepfers in connection with the subject promissory notes executed by the defendantComputerized Quality Separation Corp. (hereinafter CQS), contained a provision in which theTepfers clearly and unequivocally waived, among other things, their right to interpose anycounterclaims against the plaintiff. Such a waiver is not against public policy and will beenforced in the absence of fraud or negligence in the disposition of collateral (see Fleet Bankv Petri [*2]Mech. Co., 244 AD2d 523 [1997]; EuropeanAm. Bank v Mr. Wemmick, Ltd., 160 AD2d 905, 906 [1990]; Federal Deposit Ins. Corp.v Marino Corp., 74 AD2d 620 [1980]). In opposition, the Tepfers failed to raise a triableissue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
However, the Supreme Court erred in searching the record and awarding summary judgmentto the defendants CQS and Barry Green dismissing the cross claim for contractualindemnification asserted against those defendants by the Tepfers. Issues of fact exist as towhether a provision of a Stock Purchase Agreement entered into by CQS, Green, and the Tepfersprovided that under certain circumstances, CQS and Green would indemnify the Tepfers (see Mantovani v Whiting-Turner Contr.Co., 55 AD3d 799 [2008]).
The Tepfers' remaining contentions are without merit. Fisher, J.P., Florio, Dickerson andBelen, JJ., concur.