Hirsch v. Rifkin

166 A.D.2d 293 | N.Y. App. Div. | 1990

Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered March 7, 1990, which, inter alia, denied plaintiffs’ motion for summary judgment in lieu of complaint, unanimously affirmed, with costs.

The guarantee sued upon referred to an underlying note for an explanation of the "Guaranteed Indebtedness”. That note in turn incorporated the terms and conditions of an underlying stock sale agreement. Plaintiffs were concededly in breach of certain representations and warranties made in that stock sale agreement, which involved liabilities potentially in excess of the indebtedness under the note. Where an instrument sued upon is subject to terms and conditions in a separate document, the accelerated procedure for judgment under CPLR 3213, based upon an instrument for the payment of money only, may not be employed. (Technical Tape v Spray Tuck, 131 AD2d 404.) Moreover, the fact that the three instruments were executed simultaneously is further evidence that these three instruments must be viewed as interdependent (Catskill Natl. Bank v Dumary, 206 NY 550). Concur—Murphy, P. J., Sullivan, Milonas and Smith, JJ.