H. L. Dalis, Inc. v Malzone

[*1] H. L. Dalis, Inc. v Malzone 2004 NY Slip Op 51425(U) Decided on November 19, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 19, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: November 19, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-126 N C

H. L. DALIS, INC., Respondent,

against

PETER MALZONE, Appellant.

Appeal by defendant from so much of an order of the District Court, Nassau County (E. Prager, J.), dated October 3, 2003, as granted plaintiff's motion for summary judgment as to liability.

Order insofar as appealed from unanimously affirmed with $10 costs.

In support of its motion for summary judgment, plaintiff demonstrated that it sold goods and services on credit to a corporate purchaser and that the corporation went out of business without satisfying the debt. It was undisputed that defendant signed the personal guaranty appearing on the corporate credit application wherein defendant guaranteed payment of the corporate debt. Accordingly, plaintiff made a prima facie showing of its entitlement to summary judgment (see E.D.S. Sec. Sys. v Allyn, 262 AD2d 351 [1999]; Vamattam v Thomas, 205 AD2d 615 [1994]; see also Florence Corp. v Penguin Constr. Corp., 227 AD2d 442 [1996]). To avoid summary judgment, defendant had to demonstrate the existence of a triable issue of fact with respect to a bona fide defense (see E.D.S. Sec. Sys., 262 AD2d at 351).

Defendant incorrectly claims that the personal guaranty is unenforceable because the underlying debt sought to recover a usurious amount of interest. The defense of usury is unavailable to an individual guarantor of a corporate obligation (see Simoni v Time-Line, Ltd., 272 AD2d 537, 538 [2000]).

Defendant's remaining contentions lack merit. [*2]
Decision Date: November 19, 2004