PNC Bank, N.A. v Blue Media Print LLC

[*1] PNC Bank, N.A. v Blue Media Print LLC 2010 NY Slip Op 50261(U) [26 Misc 3d 139(A)] Decided on February 24, 2010 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 24, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570731/09.

PNC Bank, N.A., Plaintiff-Respondent,

against

Blue Media Print LLC, Defendant, -and- Johnny Zarete, Defendant-Appellant.

Defendant Johnny Zarete appeals from an order of the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), dated March 4, 2009, which denied his motion to vacate a prior order entered on default granting plaintiff's motion for summary judgment against him in the principal sum of $71,028.88.

Per Curiam.

Order (Tanya R. Kennedy, J.), dated March 4, 2009, affirmed, without costs.

Even assuming that defendant Johnny Zarete had a reasonable excuse for his default in opposing plaintiff's motion for summary judgment, he failed to demonstrate a meritorious defense to that motion (see Ogunbemi v New York City Hous. Auth., 65 AD3d 944 [2009]). As defendant appropriately conceded at oral argument of the appeal, he is a guarantor of the credit line extended by plaintiff to the borrower, Blue Media Print, LLC, and is therefore liable to plaintiff based on Blue Media Print's default under the loan agreement (see Hotel 71 Mezz Lender LLC v Mitchell, 63 AD3d 447 [2009]). Defendant's deposition testimony to the effect that he did not read or understand his obligations as guarantor under the loan agreement does not constitute a viable defense to plaintiff's motion, since defendant was obligated to exercise ordinary diligence to ascertain the terms of the document he admittedly signed (PNC Capital Recovery v Mechanical Parking Sys., Inc., 283 AD2d 268, 272 [2001]). Defendant's further claim that he believed that he was only guaranteeing a $10,000 line of credit is belied by the unrefuted evidence that in the week following the execution of the agreement, four checks totaling more than $40,000 bearing his signature were drawn on the credit line account, and by his acknowledgment of receipt of loan documents showing a maximum credit line of $60,000.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 24, 2010