620 N.Y.S.2d 537 | N.Y. App. Div. | 1994
Appeal from an order of the Supreme Court (Cardona, J.), entered September 13, 1993 in Albany County, which, inter alia, granted plaintiffs motion for summary judgment.
In this action to recover on a promissory note given to obtain a construction loan, defendants, the promisor and a guarantor, admit having executed the note and guaranty, having received $275,000 of the promised loan of $575,000 and having defaulted in repayment. In opposition to plaintiffs motion for summary judgment, the guarantor, defendant Olga B. Mahl, avers that plaintiff failed to meet its obligations under the building loan agreement, incorporated by reference into the note, in that it refused to provide the additional advances called for by that agreement, thereby rendering it impossible for defendants to complete the project from which they intended to obtain the funds for repayment. As noted by Supreme Court, however, plaintiff had no obligation to make further funds available until furnished with documentation reflecting the progress of the construction. The record is barren of any indication that defendants tendered that documentation.
Moreover, defendants’ contrary argument notwithstanding, the record discloses no facts warranting an inference that plaintiff anticipatorily breached the agreement by "words or acts evincing an intention to refuse performance in the fu
Mikoll, J. P., Mercure, Crew III and White, JJ., concur. Ordered that the order is affirmed, with costs.