Gunduz USA, LLC v Pirolo

Gunduz USA, LLC v Pirolo 2010 NY Slip Op 08001 [78 AD3d 460] November 9, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

Gunduz USA, LLC, Appellant,
v
Mario Pirolo, Respondent.

—[*1] Ginsburg & Misk, Queens Village (Hal R. Ginsburg of counsel), for appellant.

Todd A. Gabor, Cedarhurst (Mark H. Miller of counsel), for respondent.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered July 27, 2009, which denied plaintiff's motion for summary judgment in lieu of complaint, and granted defendant's cross motion for summary judgment dismissing the action, unanimously affirmed, with costs.

The court providently exercised its discretion in granting defendant's cross motion for summary judgment dismissing the action (see CPLR 3213; Schulz v Barrows, 94 NY2d 624 [2000]). Defendant established that he was not personally liable for the two postdated checks pursuant to UCC 3-403 (2), as plaintiff's own affidavit acknowledged that the "checks were given as partial payment of monies owed by [defendant's] company for goods sold and delivered." In the face of this evidence, plaintiff failed to refute that statement, or assert that defendant actually agreed to personally guarantee the subject corporate debt (see e.g. Arde Apparel v Matisse Ltd., 240 AD2d 328, 330 [1997]).

In light of the foregoing, we need not address plaintiff's contentions. Concur—Tom, J.P., Saxe, Moskowitz, DeGrasse and Abdus-Salaam, JJ.