688 N.Y.S.2d 534 | N.Y. App. Div. | 1999
—Judgment, Supreme Court, New York County (Beatrice Shainswit, J.), entered March 4, 1998, which, upon the prior grant of plaintiffs motion for summary judgment, awarded plaintiff the total amount of $837,022.26, unanimously affirmed, with costs.
The liability at issue arises by reason of defendant’s execution of a promissory note in plaintiff’s favor requiring the payment of certain sums “[flor value received”. Although it is undisputed that the obligation evidenced by the note is due and has not been satisfied, defendant maintains that its liability thereunder should not be reduced to judgment at this juncture since there are issues of fact as to whether plaintiff discharged its obligations pursuant to an Affiliation Agreement executed along with the note in connection with the settlement of a Federal court action between the parties. However, while the agreements were executed as components of the same settlement, each would nonetheless appear to be separately enforceable (see, National Union Fire Ins. Co. v Clairmont, 231 AD2d 239, Iv dismissed 91 NY2d 866, 92 NY2d 868; Vinciguerra v Northside Partnership, 188 AD2d 861). The agreements do not refer to each other or otherwise indicate that the obligations imposed by one were to be contingent upon the performance of obligations imposed by the other (see, Cherney v Pilevsky, 178 AD2d 263). When we look at the documents themselves, the severability of the Affiliation Agreement from the note is apparent. We would note the following: (1) the Affiliation Agreement was governed by Pennsylvania law; the note was governed by New York law; (2) the acceleration provisions of the note are unrelated to the obligations contained in the Affiliation Agreement; (3) a remedy of offset against the license fee was provided for breach of performance of the Affiliation Agreement, but no mention was made of a right of offset against the note. The agreements, accordingly, afford no basis to conclude that the payments required by the note were intended as consideration for plaintiffs performance under the Affiliation Agreement.
Nor did defendant’s conclusory and altogether insufficient claim of fraudulent inducement warrant denial of plaintiff’s summary judgment motion (see, Orix Credit Alliance v Hable Co., 256 AD2d 114).
