(dissenting). I would reverse and remand for further proceedings.
This is an appeal from an order, entered on August 12, 1980, in the Supreme Court, New York County (Helman, J.), which granted summary judgment in favor of plaintiff against defendant PIC Motors Corp. in the sum of $161,755.11 and against defendant Aaron Siegel in the sum of $189,717.71.
Defendant-appellant Siegel was the principal stockholder, director and president of defendant PIC Motors Corporation (PIC), an established car dealership. In 1978, he sold his stock interest in the business to defendant Manfred Robl and resigned his various positions in the business, although he continued for a short period as a part-time consultant. During Siegel’s 16-year operation of PIC, he had been in the practice of financing his inventory of automobiles through local banks, including that of *454plaintiff, through a system known as “floor planning” whereby periodic loans are made with the inventory serving as collateral. Siegel’s credit record was an excellent one throughout his dealings with plaintiff. As protection against the devaluation of its security, the bank had conducted regular monthly inspections of defendant’s inventory of used cars and had also insisted upon a curtailment policy under which any loan had to be paid in full on inventory remaining unsold for specific periods of time.
When defendant Robl assumed full control of the dealership, plaintiff refused to continue to extend credit without the personal guarantee of Siegel, which he agreed to furnish. According to Siegel, he relied upon the bank’s assurances that the customary safeguards to ensure preservation of the security would be maintained. In addition to Siegel, his wife, defendant Robl and Robl’s wife also signed personal guarantees. The inventory financing agreement was thus executed, but in July of 1979, not long afterwards, Siegel was advised that PIC was “out of trust” and more than 50% of the inventory was not accounted for. Although Siegel arranged for the bulk sale of the remaining inventory and partial repayment was made, an amount in excess of $150,000 was still owing. Following due demand, the balance remained outstanding, and the bank instituted suit against PIC and the individual guarantors.
A motion was made by the plaintiff for summary judgment, at which time Siegel discovered that the reason for the deficiency was a plan whereby two of the bank’s employees, acting in complicity with Robl, had submitted false inventory reports and approved loans on nonexistent automobiles. Siegel thereupon asserted this scheme as an affirmative defense in his answer, along with counterclaims against plaintiff and cross claims against Robl.
The court below granted summary judgment against Siegel and PIC. On appeal, Siegel contends, inter alia, that the activities of plaintiff creditor created a question of fact as to whether the bank impaired the value of the collateral, thus relieving him from liability.
The guarantee which Siegel signed contains the following provisions: “The undersigned hereby consents that from time to time, before or after any default by the *455Borrower or any notice of termination hereof, with or without further notice to or assent from the undersigned, any security at any time held by or available to the Bank for any obligation of the Borrower, or any security at any time held by or available to the Bank for any obligation of any other person secondarily or otherwise liable for any of the Liabilities of the Borrower, may be exchanged, surrendered or released and any obligation of the Borrower, or of any such other person, may be changed, altered, renewed, extended, continued, surrendered, compromised, waived or released in whole or in part, or any default with respect thereto waived, and the Bank may fail to set off and may release, in whole or in part, any balance of any deposit account or credit on its books in favor of the Borrower, or of any such other person, and may extend further credit in any manner whatsoever to the Borrower, and generally deal with the Borrower or any such security or other person as the bank may see fit: and the undersigned shall remain bound under this guaranty notwithstanding any such exchange, surrender, release, change, alteration, renewal, extension, continuance, compromise, waiver, inaction, extension or further credit or other dealing.”
Section 3-606 of the Uniform Commercial Code states that “(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder * * * (b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.” See, also, Executive Bank of Fort Lauderdale v Tighe (66 AD2d 70) for the proposition that, absent the consent of the surety, the surety would be discharged by the creditor’s impairment of the collateral.
Under the express terms of the agreement between Siegel and the bank, the undersigned purportedly undertook to remain bound regardless of any compromise to the security. However, where the bank’s negligence has, in contravention of section 9-207 of the Uniform Commercial Code, resulted in a breach of its duty to preserve and protect the collateral, a waiver “will not be enforced so as to bar a viable setoff or counterclaim sounding in fraud” or where “based upon the creditor’s negligence in failing to *456liquidate collateral upon the guarantor’s demand” (Federal Deposit Ins. Corp. v Marino Corp., 74 AD2d 620, 621). As the court therein explained, to enforce such a waiver provision when there is a triable issue of fact as to the creditor’s negligence would enable a creditor to shield itself from its own tortious conduct.
“The holder of security (here the inventory) is not at liberty to do any affirmative act which would impair the security and so deprive the guarantors of the benefit they might derive on a proper liquidation or upon their payment under their guaranty” (Sterling Factors Corp. v Freeman, 50 Misc 2d 715, 720). In the instant case, whether the bank can be held liable for the tortious acts of its employees presents a clear issue of fact such as to render summary judgment inappropriate. To maintain that a guarantor will always be bound on the underlying obligation, notwithstanding any negligent, fraudulent or tortious conduct on the part of the creditor, simply by the expedient of the creditor’s inserting a clause to that effect in the agreement is to undermine completely the spirit of the Uniform Commercial Code and is, in my opinion, contrary to public policy.
Sandler, J. P., and Lupiano, J., concur with Fein, J.; Bloom and Milonas, JJ., dissent in an opinion by Milonas, J.
Order, Supreme Court, New York County, entered on August 12, 1980, affirmed. Respondent shall recover of appellant $75 costs and disbursements of this appeal.