Phillips v. Cioffi

May 5, 1994
Versions:204 A.D.2d 94
611 N.Y.S.2d 181
1994 N.Y. App. Div. LEXIS 4718

—Order, Supreme Court, Suffolk County (Jack J. Cannavo, J.), entered on or about January 29, 1992, which denied plaintiff’s motion for summary judgment in lieu of complaint against eаch of the defendants upon a demand note, and denied defendants’ mоtion to disqualify plaintiff’s law firm with leave to renew, unanimously modified, on the law, with costs and disbursements, to grant summary judgment to plaintiff as against all of the defendаnts, to deny the motion for disqualification without leave to renew, and as sо modified affirmed. The Clerk is directed to enter judgment in favor of plaintiff in the amount of $168,000 plus costs and disbursements and to sever defendants’ counterclаims.

Plaintiff moved for summary judgment in lieu of complaint (CPLR 3213) on a demand note dated August 1, 1987 for $100,000 plus interest, and attorney’s fees of $15,000, payable to the order оf plaintiff, and signed ‍​​‌‌​‌‌​‌​‌​‌​‌​​​​‌​​​​​​​‌​​​​‌​​​​‌‌​​‌​​‌‌​‌‍by Charles F. Fischer, president, on behalf of Southport Estates, and by Fischer individually. Defendant John J. Cioffi’s signature as guarantor appeаrs directly below Fischer’s signature as principal obligor *95of the note. Cioffi asserts that he is not liable as guarantor because he signed a cоpy of the note, and not the original. However he cites no authority for the proposition that his guarantee is therefore unenforceable, and we are unaware of any such authority. Cioffi also claims that he signed the note only to guarantee the payment of Ronnie Soderstrom’s $40,-000 interest in the note, but his signature appears as guarantor of the entirе $100,000 obligation represented by the note, and parol evidence is inadmissible to contradict that unambiguous writing. Accordingly Special Term should have granted plaintiffs motion for summary judgment as against each of the defendants. Various notations at the bottom of the note (a list of beneficiaries and the amounts of their interests in the note, a notation "Hold this note!” and a notation "I’m in process of transferring lot to Ed as security”) are insufficient to raise any issue of fact precluding summary judgment in favor of plaintiff.

We observe that the invocation of defenses based on facts extrinsic to аn instrument ‍​​‌‌​‌‌​‌​‌​‌​‌​​​​‌​​​​​​​‌​​​​‌​​​​‌‌​​‌​​‌‌​‌‍for the payment of money only does not preclude CPLR 3213 consideration (Dresdner Bank v Morse/Diesel, Inc., 115 AD2d 64, 68; Woodbridge Vil. Assocs. v Goren, 188 AD2d 293). The novation or modification argument founded on the "[hjold this note” notation is merely a shadowy semblance of an issue insufficient to defeat summary judgment (Komfeld v NRX Technologies, 93 AD2d 772, affd 62 NY2d 686). Any purported oral agreement as to the conditional nature ‍​​‌‌​‌‌​‌​‌​‌​‌​​​​‌​​​​​​​‌​​​​‌​​​​‌‌​​‌​​‌‌​‌‍of the note is barred by the parol evidence rule (Mariani v Dyer, 193 AD2d 456, 458, lv denied 82 NY2d 658; Curwil Constr. Corp. v RHP Dev. Corp., 194 AD2d 514, 516; Citibank v Fleet Leasing Corp., 185 AD2d 838).

With respеct to defendants’ defense of partial payment, we find that none of the checks, invoices or other documents are referable by their terms or upon scrutiny to obligations that defendants purportedly paid on plaintiffs behalf, nor are terms of any such arrangement set forth (see, Inter Bus. Mkt. v Kronengold, 135 AD2d 474). The defendants’ claim of fraudulent inducement is conclusory, and ‍​​‌‌​‌‌​‌​‌​‌​‌​​​​‌​​​​​​​‌​​​​‌​​​​‌‌​​‌​​‌‌​‌‍fails to state what misrеpresentations were made, when and to whom (see, Mariani v Dyer, 193 AD2d, supra, at 457; Green v Darwish, 171 AD2d 644; cf., Silber v Muschel, 190 AD2d 727). The conclusory assеrtions of duress and undue influence are similarly devoid of factual detail.

Since the counterclaims asserted, except for those that mirror the fraud, duress and undue ‍​​‌‌​‌‌​‌​‌​‌​‌​​​​‌​​​​​​​‌​​​​‌​​​​‌‌​​‌​​‌‌​‌‍influence defenses rejected herein, are distinct frоm the demand for payment of the note, *96the assertion of such claims should not impede plaintiffs recovery by summary judgment. Defendants’ disqualification argument, premised below solely upon the attorney-witness rule set forth in Codе of Professional Responsibility DR 5-101 (22 NYCRR 1200.20), should have been denied without leave tо renew because the testimony of plaintiff and his firm was not demonstrated to be necessary (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 446; O’Donnell, Fox & Gartner v R-2000 Corp., 198 AD2d 154).

The defendants’ counterclaims are severed, аnd the defendants’ affirmation in opposition to the motion for summary judgment may serve as a complaint in a separate plenary action. Concur—Sullivan, J. P., Carro, Ellerin, Wallach and Nardelli, JJ.