49 A.D.2d 670 | N.Y. App. Div. | 1975
Order, insofar as it denied motion for summary judgment against defendant Walker, unanimously reversed, without costs, and motion granted. Memorandum: Special Term improperly denied plaintiff’s motion made pursuant to CPLR 3213 for summary judgment on a "Limited Guaranty”, signed by defendant Walker, guaranteeing a note made by defendant Richard Alt to plaintiff, which note was also backed by an "Unlimited Guaranty” signed by Richard’s wife Helen Alt. The defendants Alt had defaulted in appearance and the court granted summary judgment for plaintiff as to them. Walker’s attempt to raise the question of consideration given to Helen Alt as an issue of fact is inappropriate, since that question is a defense available only to Helen and is now foreclosed from consideration by the judgment against her. Walker’s argument that he is relieved by reason of his guarantee of a loan to both Richard and Helen Alt and the extension of the loan to Richard only, is without merit. Walker intended to guarantee the debt of both Alts, with their liability to be "joint, several or independent”; and plaintiff extended credit to both by making a loan to Richard and by accepting Helen’s "Unlimited Guaranty” of that loan. Walker’s alleged issue of fact that he intended to guarantee only one 90-day note, and not a series of 90-day notes extending the original note, is belied by the express terms of guarantee which state that "This guaranty is a continuing one” and that plaintiff may "change the manner, place or