Poah One Acquisition Holdings V Ltd. v Armenta

Poah One Acquisition Holdings V Ltd. v Armenta 2012 NY Slip Op 04923 Decided on June 19, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 19, 2012
Tom, J.P., Andrias, DeGrasse, Richter, Román, JJ.
7553 600917/10

[*1]Poah One Acquisition Holdings Limited, Plaintiff-Respondent,

v

Gilbert Richard Armenta, et al., Defendants-Appellants.




Fulbright & Jaworski L.L.P., New York (Charles D. Schmerler
of counsel), for appellants.
Latham & Watkins LLP, New York (James E. Brandt of
counsel), for respondent.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered October 8, 2010, which, inter alia, denied defendants' cross motion to dismiss the complaint for lack of personal jurisdiction, lack of standing and failure to state a cause of action, and granted plaintiff's motion for summary judgment in lieu of complaint only as to liability as against defendant Armenta, unanimously affirmed, with costs.

Plaintiff demonstrated its entitlement to summary judgment as against Armenta by submitting the guaranty executed by him and an affidavit of nonpayment (see Bank of Am., N.A. v Solow, 59 AD3d 304, 304-305 [2009], lv dismissed 12 NY3d 877 [2009]). Plaintiff appropriately moved based on the absolute and unconditional guaranty, which expressly waived demand or presentment, and is "an instrument for the payment of money only" within the meaning of CPLR 3213 (see European Am. Bank v Competition Motors, 182 AD2d 67, 71 [1992]). Defendant's contention that plaintiff did not include an executed copy of the 2008 reaffirmation of the guaranty is insufficient to raise an issue of fact in light of the language of the 2007 executed guaranty. Moreover, defendant's affidavit is equivocal as to his recollection of the execution of the 2008 document.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 19, 2012

DEPUTY CLERK