Tilden Financial Corp. v. Neuberg

The plaintiff’s motion for summary judgment was properly granted after it made a prima facie showing of entitlement to judgment as a matter of law, as the defendant failed to establish the existence of a material triable issue of fact regarding his claim that the underlying agreement was not a true lease, but instead constituted a security agreement subject to the provisions of Uniform Commercial Code article 9 (see generally, Alvarez v Prospect Hosp., 68 NY2d 320). In any event, even if it is assumed that the lease constitutes such a security agreement, we note that the guarantee executed by the defendant contains an express waiver of his alleged right to receive proper notice of the sale of the leased equipment pursuant to Uniform Commercial Code § 9-504 (3) (see, e.g., First City Div. v Vitale, 123 AD2d 207). We have considered the defendant’s remaining contentions and find them to be without merit. Mollen, P. J., Mangano, Fiber and Sullivan, JJ., concur.