Bankers Trust Hudson Valley v. Christie

Sweeney and Staley, Jr., JJ.,

dissent and vote to affirm in the following memorandum by Staley, Jr., J. Staley, Jr., J. (dissenting). We respectfully dissent and would affirm the judgment. Christie contends that he intended to sign the "Unlimited Guaranty” only in his capacity as a corporate officer; that plaintiff had notice of the fact that Christie revoked the guarantee before the loans were made; and that plaintiff waived the requirement of written notice of revocation of the guarantee. The guarantee is clear and unambiguous in its terms of individual liability. It specifically sets forth that the individual guarantee extends to all debts due or to become due from the corporation to plaintiff. Christie’s contention concerning his intention in executing the "Unlimited Guaranty” contradicts its clear and unambiguous terms, and any oral evidence as to intent would be inadmissible under parol evidence rule (Community Nat. Bank & Trust Co. of N. Y. v Intercoastal Trading Corp., 55 AD2d 525; Pollack v Green Constr. Corp., 40 AD2d 996, affd 32 NY2d 720; County Nat. Bank v Grunwald, 30 AD2d 663). The reliance of the majority on Delaware Funds v Zuckerman-Honickman, Inc. (43 AD2d 889) is misplaced. In that case, Delaware, by unilateral instrument, undertook to guarantee the debts of Moyer Company, a customer of Zuckerman. On August 11, 1970, Delaware mailed a letter to Zuckerman revoking its guarantee, but the letter apparently never came to the attention of the proper Zuckerman personnel. Between December 11, 1970 and January 8, 1971, Zuckerman sold merchandise to Moyer valued at $7,313. Moyer defaulted on the debt and Zuckerman sued Delaware as guarantor. Zuckerman obtained a judgment against Delaware based on a finding that the revocation was ineffective since the consent of Zuckerman was required *971for its termination. The court, reversing the judgment, stated (p 889) "A continuing guarantee, as such it was, is in the nature of a continuing offer to guarantee a series of debts and may be revoked by the guarantor on notice to the creditor * * * The terms of the guarantee herein must be read as allowing unilateral revocation by the guarantor.” Christie’s contention that plaintiff had actual or constructive notice of his withdrawal from the corporation and was, therefore, released from any obligation under the guarantee is also without merit. By its terms, the guarantee was to continue "until written notice of revocation signed by such undersigned shall in each case have been actually received by the Bank”. There is no evidence in the record that written notice was ever received by plaintiff from Christie. In his affidavit on the motion, Christie’s allegations as to notice to plaintiff are hearsay and conjecture. Proper notice under the terms of the guarantee was not completed and the claim of notice was not established (Franklin Nat. Bank of Long Is. v S. & L. Constr. Corp., 16 AD2d 682). Christie also contends that plaintiff waived the notice provision of the guarantee when the corporation executed the promissory note on January 7, 1974 indorsed by Di Peri and his wife individually. Christie asserts that plaintiff in effect substituted the indorsement agreement for the "Unlimited Guaranty” and thus waived the requirement of written revocation. There are no facts alleged to indicate that the indorsement agreement was designed to terminate the "Unlimited Guaranty”, and it cannot be deemed a substitute for it. There are also no facts alleged that plaintiff considered that the "Unlimited Guaranty” had been terminated or that plaintiffs officer had orally agreed that the guarantee was no longer in effect and would not be used against Christie. There was thus no waiver of the requirement of written notice of termination by Christie (cf. Alside Aluminum Supply Co. v Berliner, 32 AD2d 731). "In order to defeat a motion for summary judgment, a party must disclose in evidentiary form the evidence on which it relies” (Bronowski v Magnus Enterprises, 61 AD2d 879, 880). Defendant Christie has not alleged any facts which, if adopted as true, would raise a substantial issue of fact (National Bank of Westchester v Dogwood Constr. Corp., 47 AD2d 848). Accordingly, the judgment should be affirmed.