White Rose Food v. Saleh

In an action to recover on a promissory note and guarantee brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendant appeals from (1) an order of the Supreme Court, Queens County (Dye, J.), dated February 21, 2001, which granted the motion, and (2) a judgment of the same court, entered April 6, 2001, upon the order. Ordered that the appeal from the order is dismissed; and it is further, Ordered that the judgment is affirmed; and it is further, Ordered that the plaintiffs are awarded one bill of costs. The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]). The Supreme Court properly granted summary judgment to the plaintiffs. The facts and documentary evidence submitted in support of the motion are not in dispute. The defendant [378] contends that he was relieved of his obligations as a coguarantor of the promissory note by a subsequent agreement, which he did not agree to, which modified the terms of the underlying promissory note. We disagree. A guarantor is not relieved of his obligations where, as here, the written guarantee allows for changes in the terms of the guarantee and expressly waives notice to the guarantor of these changes (see, Standard Factors Corp. v Kreisler, 53 NYS2d 871, affd 269 App Div 830). Moreover, the terms of the promissory note and the guarantee must be viewed together as one transaction (see, TBS Enters. v Grobe, 114 AD2d 445). The defendant’s further contention that the Supreme Court improperly vacated a prior default judgment based upon the same transaction is without merit. A court has the inherent power to vacate a default judgment (see, Neuman v Greenblatt, 260 AD2d 616; Cervino v Konsker, 91 AD2d 249). Prudenti, P.J., Luciano and Townes, JJ., concur.