| N.Y. App. Div. | May 8, 1978
In an action on a promissory note against the borrower and the guarantor, defendant Czachorowski, the guarantor, appeals from a judgment of the Supreme Court, Suffolk County, entered January 20, 1977, which is in favor of plaintiff and against him, upon the granting of plaintiff’s motion for summary judgment. On the court’s own motion, the notice of appeal is deemed amended so as to show that it is also from a further judgment of the same court, entered February 8, 1977, which awarded plaintiff counsel fees as provided for in the guarantee (see CPLR 5520, subd [c]). Judgments affirmed, with one bill of costs. Appellant fails to present any issues of fact which require a trial. The guarantee was clear, unconditional, absolute and continuing. It waived any claim to collateral, or substitution thereof, and absolved respondent from any liability in connection therewith. Latham, J. P., Margett and Hawkins, JJ., concur; Suozzi, J., dissents and votes to reverse the judgments and deny plaintiff’s motion for summary judgment, with the following memorandum: In my view, the individual defendant’s opposition papers to plaintiff’s motion for summary judgment, however inartfully drawn, raise genuine issues of fact with respect to his claims of conspiracy and fraud, which can only be resolved after the completion of appropriate discovery proceedings and a full trial.