Lane Crawford Jewelry Center, Inc. v. Han

634 N.Y.S.2d 482 | N.Y. App. Div. | 1995

—Judgment, Supreme Court, New York County (Richard Lowe, III, J.), entered November 23, 1994, awarding plaintiff the sum of $83,290.16 plus interest, unanimously modified, on the law, to vacate the judgment as to the defendant Han and as to her to deny plaintiff’s motion for summary judgment and, except as thus modified, affirmed, without costs or disbursements.

Given defendant’s denial, in the answer, of having signed the guaranty of payment contained in the sublease at issue and her repeated averments in her affidavit opposing plaintiff s motion for summary judgment and in support of her cross-motion for summary judgment, to which plaintiff did not respond, that the signature on the guaranty bearing her name was a forgery, it was error to award plaintiff summary judgment on the guaranty. The validity of the signature on the guaranty was critical because, without a memorandum of such a promise signed by the party to be charged, a guaranty cannot be enforced. (General Obligations Law § 5-701 [a] [2]; Griffin v Bookman, 39 NY2d 57.) Plaintiff submitted two affidavits, one by counsel, stating in a conclusory manner that defendant Han signed the guaranty. Neither alleged that this assertion was based on personal knowledge. Nor was any expert’s affidavit submitted attesting to the validity of defendant Han’s signature. Thus, summary judgment should have been denied as to this defendant. Concur — Sullivan, J. P., Ellerin, Wallach, Asch and Tom, JJ.