This is a breach of contract action brought by the plaintiff Anglo Irish Bank Corporation, formerly known as Anglo Irish Bank Corporation plc ("Irish Bank") against the defendants Izzy Ashkenazy and Jonathan Agus. Before me is Irish Bank's motion for summary judgment in lieu of complaint, pursuant to CPLR 3213, based upon the non-payment of a guaranty. The defendants cross-move to dismiss the action against them. For the reasons that follow, I grant Irish Bank's motion and deny the defendants' motion.

The following facts are undisputed. On April 18, 2008, non-party Birkat Harav Greens LLC ("Birkat"), as borrower, executed a promissory note (the "Note") in the amount of $18,750,000 (the "Loan") in favor of Irish Bank, as lender. The Note is secured by a mortgage on certain Florida real property owned by Birkat. The terms of the Note include, inter alia, the obligation that Birkat make quarterly interest payments on the principal sum, and an event of [*2]default occurs in the case of any delinquency in payment in excess of ten days. Specifically, the Note provides:

If there occurs any delinquency in excess of ten (10) days after the applicable due date in the payment of any amount due under this Note or any other obligation of the Borrower to the Lender in connection with the loan evidenced hereby (collectively, the "Obligations") . . . (each of the foregoing, an "Event of Default"); then, at the option of the holder of this Note, without further notice or demand to the Borrower, the entire indebtedness evidenced hereby, with interest accrued thereon, shall become forthwith due and payable, and no omission on the part of the holder hereof to exercise such option when entitled to do so shall be construed as a waiver of such right.

The Guaranty also provides that the defendants waived any right to notice and provides that the plaintiff need not take action against Birkat prior to exercising its rights under the Guaranty. Indeed, paragraph seven provides: [*3]

The Guarantor waives notice of the incurring of Liabilities of the Borrower, the acceptance of this Guaranty by the Bank presentment and demand for payment, protest, notice of protest, notice of dishonor or nonpayment of any instrument evidencing any Liabilities of the Borrower, acceleration, and intent to accelerate any right to require suit against the Borrower or any other party before enforcing this Guaranty; any right to have security applied before enforcing this Guaranty in any manner, and right to marshalling of assets; the defense of impairment of collateral; and all other suretyship defenses[.]

(Id., Exh B, � 7).

Finally, the Guaranty outlines the events of default under the terms of the Note that give rise to the plaintiff exercising its right under the Guaranty. In relevant part, it provides:

Upon the occurrence of any event of default under any instrument evidencing any of the Liabilities of the Borrower . . . then the liabilities and obligations of the Guarantor hereunder shall immediately become due and payable at the election of the Bank without notice or demand.

(Id., Exh B, � 4).

The plaintiff asserts that Birkat has defaulted on the Loan by failing to pay in full interest payments that were due on March 31, 2009; June 30, 2009; September 30, 2009; and December 31, 2009. It further asserts that, with respect to the interest payments due in March and June 2009, by letter dated July 17, 2009, it notified Birkat of the default and demanded cure within ten days. The plaintiff also asserts that, by letter dated January 29, 2010, it notified Birkat that it was exercising its right to accelerate the indebtedness under the terms of the Note and demanded immediate payment of the amount outstanding on the Loan, including interest. The plaintiff alleges that, despite receiving this notice, Birkat has failed to pay the amounts due. It asserts that, as of February 24, 2010, Birkat owes the principal amount under the Note, interest that continues to accrue, late fees, attorneys' fees and costs.

The plaintiff goes on to assert that, by letter also dated January 29, 2010, it notified the defendants of its acceleration and demand to Birkat and demanded immediate payment of $8,000,000 plus interest, costs and expenses, pursuant to the defendants' obligations under the Guaranty. It further asserts that, despite receiving this notice, the defendants have failed to pay the amounts due under the Guaranty.

I turn first to the defendants' cross-motion to dismiss the action.

On a motion to dismiss made pursuant to CPLR 3211, the complaint "is to be afforded a liberal construction," and the plaintiff is afforded the "benefit of every possible favorable inference." (Leon v Martinez, 84 NY2d 83, 87 [1994]). Under CPLR 3211(a)(7), "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." (Id. at 88, citing Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

The defendants cite two grounds for dismissal. First, they argue that the plaintiff lacks capacity to sue. Specifically, they argue that the plaintiff, as a foreign banking institution with only a representative office in New York and no license to engage in banking activities, can only foreclose on property located in New York but is barred from maintaining an action to enforce a guaranty. Second, they argue that the pendency of a prior action in Florida or, alternatively, the election of remedies calls for the dismissal of the plaintiff's action. Here, the defendants argue [*4]that a simultaneous foreclosure action pending in Florida, in which they are also named defendants, bars the plaintiff bringing this action. These arguments are unpersuasive.

With respect to capacity, the defendants maintain that the plaintiff, a foreign bank organized under the Laws of Ireland, has a restricted legal presence in New York and may bring an action to foreclose on property located within the state, but Banking Law ("BL") sections 221-a and 200(4) do not allow it to bring an action to enforce a guaranty. However, as argued by the plaintiff, the Banking Law contains no such restriction.To the contrary, section 200(4) provides that a foreign banking corporation which does not maintain an office in this state for the transaction of business may "enforc[e] in this state obligations heretofore or hereafter acquired by it in the transaction of business outside of this state[.]" (BL � 200[4]; see also BL � 200-a ["In maintaining an action or special proceeding in this state, a foreign banking corporation shall maintain such action or proceeding in like manner and subject to the same limitations as are applicable in the case of an action or special proceeding maintained by a domestic banking organization, except as otherwise prescribed by statute."]). Thus, the plaintiff does not lack capacity to bring this action.

With respect to the pending Florida action, the defendants maintain that CPLR 3211(a)(4) and/or Real Property Actions and Proceedings Law ("RPAPL") section 1301(3) warrant dismissal of the plaintiff's action. CPLR 3211(a)(4) provides that dismissal may be warranted, where "there is another action pending between the same parties for the same cause of action in a court of any state or the United States[.]" However, as the plaintiff argues, dismissal is not warranted on the basis of CPLR 3211(a)(4) because although the defendants are also named as parties in the action pending in Florida, the plaintiff seeks no relief against them. Rather, the action is asserted against Birkat for the purpose of foreclosing on the mortgage executed by Birkat. Thus, the action in Florida is not "between the same parties for the same cause of action," as is required by CPLR 3211(a)(4).

Further, RPAPL section 1301(3) provides that "[w]hile the action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought." Again, as argued by the plaintiff, RPAPL section 1301(3) is inapplicable because this statute "does not apply where, as here, the property securing the loan is located outside of New York State." (Wells Fargo Bank Minn., N.A. v Cohn, 4 AD3d 189, 189 [1st Dep't 2004]).

I now turn to the plaintiff's motion for summary judgment in lieu of complaint.

Summary judgment in lieu of complaint is an expedited procedure for commencing an action "based upon an instrument for the payment of money only or upon any judgment." (CPLR 3213; Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, CPLR C3213:1). To prevail on such a motion, plaintiff must submit proof of the agreement, its unconditional terms of repayment and default by the defendant. (See SCP (Burmuda) v Bermudatel, Inc., 224 AD2d 214, 216 [1st Dep't 1996]). "Once plaintiff has met its burden, it is incumbent upon defendant to establish, by admissible evidence, that a triable issue of fact exists." (Id.).

Here, the plaintiff has met its burden. There are no genuine disputed issues of fact. The defendants attempt to raise an issue of fact by arguing that they were misled by the plaintiff's broken promises that additional loan restructuring was forthcoming but did not eventuate. To this extent, the defendants attempt to argue the doctrine of equitable estoppel. (See Def Reply Br, at [*5]6-10, citing Rose v Spa Realty Asscs., 42 NY2d 338, 344 [1977]). However, it is undisputed that the Guaranty is absolute and unconditional, wherein the defendants waive such defenses. (See McNally Aff, Exh B, � 3). As such, they are precluded from raising this defense. (See Citibank, N.A. v Plapinger, 66 NY2d 90, 95 [1985] ["[T]he substance of defendants' guarantee forecloses their reliance on the claim that they were fraudulently induced to sign the guarantee by the banks' oral promise of an additional line of credit. To permit that would in effect condone defendants' own fraud in deliberately misrepresenting [their] true intention' when putting their signatures to their absolute and unconditional' guarantee."] [internal citations omitted]; see also Braten v Bankers Trust Co., 60 NY2d 155, 162 [1983]). The defendants further argue, inter alia, that the plaintiff lacks standing to sue and that the plaintiff has failed to submit evidence in admissible form.

These arguments too are conclusory and fail to raise an issue of fact. Indeed, the defendants fail to submit any evidentiary facts in support of their conclusory allegations that would demonstrate the existence of a triable issue of fact. This is insufficient to defeat a motion for summary judgment. (See Kornfeld v NRX Tech., 93 AD2d 772, 773 [1st Dep't 1983], aff'd 62 NY2d 686 [1984]).

Accordingly, it is

ORDERED that the defendants' cross-motion is denied; and it is further

ORDERED that the plaintiff's motion for summary judgment in lieu of complaint is granted as to liability against the defendants; and it is further

ORDERED that the issue of damages, attorneys' fees and costs is hereby referred to a Special Referee to hear and report with recommendations, except that, in the event of and upon the filing of a stipulation of the parties, as permitted by CPLR 4317, the Special Referee, or another person designated by the parties to serve as referee, shall determine the aforesaid issue; and it is further

ORDERED that this motion is held in abeyance pending receipt of the report and recommendations of the Special Referee and a motion pursuant to CPLR 4403 or receipt of the determination of the Special Referee or the designated referee; and it is further

ORDERED that a copy of this order with notice of entry shall be served on the Special Referee Clerk (Room 119) to arrange a date for the reference to a Special Referee; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Dated: August 4, 2010

ENTER:

J.S.C.