George L. Penny, Inc. v. Zaweski

Oct 5, 1998
Versions:254 A.D.2d 255
678 N.Y.S.2d 269
1998 N.Y. App. Div. LEXIS 10071

In an action to recover upon a guaranty, commenced pursuant to CPLR 3213 by motion for summary judgment in lieu of complaint, the defendants appeal from a judgment of the Supreme Court, Suffolk County (Gowan, J.), entered October 10,1997, which, upon the granting of the plaintiffs’ motion for summary judgment, was in favor of the plaintiff and against them in the principal sum of $93,000.

Ordered that the judgment is affirmed, with costs.

The plaintiff established a prima facie case by setting forth the undisputed fact that the defendants defaulted on a guaranty pursuant to which they agreed to pay the debt incurred by the parents of the defendant Christine Zaweski in the sum of $120,500 (see, Colonial Commercial Corp. v Breskel Assocs., 238 AD2d 539). It was then incumbent on the defendants to come forward with proof of evidentiary facts showing the existence of a triable issue with respect to their defense (see, Colonial Commercial Corp. v Breskel Assocs., supra). The defendants’ unsubstantiated, conclusory allegations of constructive fraud and fraud in the inducement were insufficient to defeat the plaintiff’s motion for summary judgment in lieu of complaint (see, Colonial Commercial Corp. v Breskel Assocs., supra; TPZ Corp. v Rigakos, 226 AD2d 445). Rosenblatt, J. P., Sullivan, Joy, Altman and Luciano, JJ., concur.