Wednesday, July 22, 2015

Summary judgment in an action to enforce a written guaranty.

Practice point:  The Appellate Division affirmed the granting of plaintiff's motion for summary judgment, as plaintiff satisfied the elements of its claim and defendant failed to create an issue of fact. The Appellate Division rejected defendant's argument that the parties entered into an oral agreement to release defendant from any claims arising from the guaranty, provided defendant introduced plaintiff to a buyer that purchased the subject building. Defendant's reliance on this purported oral agreement fails in light of the parties' agreement that all modifications to the guaranty were to be in writing, and defendant's failure to point to any performance of the purported oral agreement that is unequivocally referable to the modification.

Student note:  On a motion for summary judgment to enforce a written guaranty, all that the creditor need prove is an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.

Case:  Gansevoort 69 Realty LLC v. Laba, NY Slip Op 06094 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment in an action alleging a school's negligent supervision.