117-14 Union Turnpike Associates v. County Dollar Corp.

| N.Y. App. Div. | Nov 17, 1992

Judgment, Supreme Court, New York County (William Davis, J.), entered March 26, 1992, upon an order of the same court, entered March 20, 1992, granting plaintiff’s motion for summary judgment in an action based upon a guaranty, unanimously affirmed, with costs.

Plaintiff established a prima facie right to recover under the guaranty by presentation of evidence regarding the execution thereof and defendants’ failure to pay in accordance therewith (Banner Indus. v Key B.H. Assocs., 170 AD2d 246). Defendants’ contention that the Partnership Agreement was modified by the decision in July 1989 to borrow, rather than make an additional equity investment, without their consent is frivolous as each had a direct or indirect significant interest in the partnership, and each personally guaranteed the borrowing. The interrelationship of the partners and guarantors is readily apparent (see, Marine Midland Bank v Smith, 482 F Supp 1279, affd 636 F2d 1202). Further, even if there were no consent at the time of the loan, defendants were not discharged from their guaranty as there was neither change in the underlying obligation nor a showing of a material increase in the bargained-for risk (see, Smith v Molleson, 148 NY 241). Indeed, any such defense had been waived by the language of the irrevocable and unconditional guaranty (see, Banco Portugues do Atlantico v Asland, S.A., 745 F Supp 962). Accordingly, summary judgment was properly granted. Concur—Sullivan, J. P., Rosenberger, Wallach, Ross and Asch, JJ.