Rochester Community Savings Bank v. Smith

Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: Supreme Court properly denied defendant’s cross motion seeking dismissal of the complaint. Defendant consented to submit to the personal jurisdiction of the courts of the State of New York in the "individual guarantee agreement” which he executed on April 5, 1985 (see, National Equip. Rental v Szukhent, 375 US 311; Shepherd Showcase v Pekala, 138 AD2d 960). Contrary to defendant’s assertions, the guaranty 1019 was not superseded or discharged by the guaranty that he executed on April 24, 1985. Since the April 5, 1985 guaranty is effective, General Obligations Law § 5-1402 precludes dismissal of the action on the ground of inconvenient forum. Supreme Court erred in denying plaintiff’s motion for summary judgment and, accordingly, we modify the order and grant plaintiff’s motion. The unconditional guaranty executed by defendant on April 5, 1985, is an instrument for the payment of money only within the meaning of CPLR 3213 (see, North Cent. Pa. Regional Planning & Dev. Commn. v Woodworth, 154 AD2d 913; European Am. Bank & Trust Co. v Schirripa, 108 AD2d 684). Plaintiff met its burden of demonstrating entitlement to judgment in its favor as a matter of law by the submission of the Individual Guarantee Agreement, the promissory note, and the affidavit of nonpayment (see, European Am. Bank & Trust Co. v Schirripa, supra, at 684; Kornfeld v NRX Technologies, 93 AD2d 772, affd 62 NY2d 686). Defendant did not challenge the proffered documentary evidence. Defendant’s averments lacked evidentiary support in admissible form and were insufficient to create a triable issue of fact or to constitute a defense that would defeat plaintiff’s motion (see, Chase Lincoln First Bank v Mark Homes, 170 AD2d 995; Marine Midland Bank v Idar Gem Distribs., 133 AD2d 525, 526; European Am. Bank & Trust Co. v Schirripa, supra, at 685). (Appeals from Order of Supreme Court, Monroe County, Galloway, J.—Summary Judgment.) Present—Denman, J. P., Green, Balio, Lowery and Davis, JJ.