Comparato v. Wegman

—Order and judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly granted that part of plaintiff’s motion for summary judgment against defendant Julie B. Wegman, but erred in denying that part of the motion against defendant Wayne F. Wegman. Where a debt is composed of several items, absent a direction by the debtor, the creditor may apply a voluntary payment by the debtor “as it sees fit and to its best advantage” (Home & City Sav. Bank v Bilinski, 177 AD2d 73, 76; see also, Gerrity Co. v Riscica, 214 AD2d 866, 868). Here, there was no direction by defendants concerning how the credit of $135,000, based on their conveyance of real property to plaintiff, was to be applied to reduce the total debt, which consisted of corporate and personal debt. The letter from plaintiff’s attorney dated October 22, 1997, 908 specified that the amount of $135,000 would be applied to the total amount of $160,000 due and owing, and that the sum of $25,000, which was identified as “due and owing from each of you, jointly and severally”, consisted of debt that was personally guaranteed by defendants. Consequently, both defendants remain liable for that amount. We modify the order and judgment, therefore, by granting plaintiffs motion in its entirety. (Appeals from Order and Judgment of Supreme Court, Monroe County, Barry, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Hayes, Scudder, Kehoe and Balio, JJ.