Weinsten v. Fleet Factors Corp.

Dec 8, 1994
Versions:

—Order, Supreme Court, New York County (Beverly Cohen, J.), entered February 17, 1994, which, inter alia, denied defendant’s motion for summary judgment on its counterclaims, unanimously affirmed, with costs.

Plaintiff guarantors’ purported waiver of the defense of commercial reasonableness in their guaranties was ineffective (Marine Midland Bank v CMR Indus., 159 AD2d 94, 102-107 [2d Dept]; Marine Midland Bank v Kristin Intl., 141 AD2d 259 [4th Dept]; see also, Bank of China v Chan, 937 F2d 780, 785-786 [2d Cir]; contra, First City Div. of Chase Lincoln First Bank v Vitale, 123 AD2d 207 [3d Dept]). Summary judgment on defendant’s counterclaims was properly denied, there being issues of fact whether defendant acted in a commercially reasonable manner in disposing of certain assets of the debtor (see, Bankers Trust Co. v Dowler & Co., 47 NY2d 128, 134-135; Marine Midland Bank v CMR Indus., supra, at 107), raised, inter alia, by proof tending to show a significant discrepancy between the price obtained by defendant for those assets and their actual value.

We have considered defendant’s other contentions and find them to be unpersuasive. Concur—Ellerin, J. P., Kupferman, Williams and Tom, JJ.