Plaintiff, Capital One, NA, as successor by merger to North Fork Bank, moves, by Notice of Motion (motion sequence No. 001) for an Order pursuant to CPLR § [*2]3213, granting the Plaintiff Summary Judgment in Lieu of Complaint, against Defendant Alarm Warehouse LLC on two promissory notes dated September 3, 2009 ( the 2009 Note) and July 20, 2007 (the 2007 Note). The motion is also made against the individual Defendants, Peter Siegel and Jonathan Scott Siegel, both of whom executed personal guarantees, on or about July 9, 2007, under which they agreed to be liable and indebted to Capital One, for all the indebtedness of Alarm Warehouse existing or thereafter arising. Plaintiff states, in support of the motion, that Defendants have defaulted under the terms of both the 2007 and the 2009 Notes and Guarantees. As of October 12, 2010, Plaintiff seeks $524,517.04 , with interest at the rate of 5.5% per annum against all Defendants on the 2009 Note and Guarantees, and $257,722.97, with interest at the rate of 11.49% per annum against all Defendants on the 2007 Note And Guarantees.

In opposition to the motion, Defendants raise the following objections:1)Capital One lacks standing to commence this action, as it has provided the Court with no written assignment of the subject Notes and/or Guarantees from the predecessor North Fork Bank, and it cannot, therefore, prove that it is the holder of the subject Notes and/or Guarantees; and 2) the individual Defendants did not guarantee the 2009 Note, for which no separate consideration was given. Defendants also complain that the Plaintiff did not deal with them in good faith by allowing Alarm Warehouse, LLC to liquidate certain collateral, in which the Plaintiff holds a security interest, to reduce any responsibility, to the extent it may exist, on the Notes and Guarantees.

CPLR § 3213 allows a Court to grant a party Summary Judgment based on instruments for the payment of money only, where the Plaintiff can demonstrate proof of a Note and/or guarantee as well as the failure by the debtor to make payments required by the terms of the instrument. Seaman-Andwall Corp v Wright Machine Corp, 29 NY2d 617, 324 NYS 2d 410, 273 NE 2d 138 (1971).

Banking Law§ 602 provides that the receiving corporation is considered the same entity as the merged corporations and is considered to have been actually named in any document which took effect prior to the merger. See, Landino v Bank of America, 52 AD3d 571, 861 NYS 2d 683 ( 2d Dep't 2008); Barclay's Bank of New York, NA v Smitty's Ranch, Inc, 122 AD2d 323, 504 NYS 2d 295 (3d Dep't 1986). Under such circumstances, the payee is not required to submit proof that a particular loan was assigned in order to establish its entitlement to Summary Judgment. Id. [*3]

Where a guarantee, by its terms, is given, in consideration of past, as well as future extensions of credit, it is enforceable under the terms of General Obligations Law § 5-1105. See, Hudson Valley Paper v LaBelle, 173 AD2d 1098, 571 NYS 2d 107 (3d Dep't 1991).

In consideration of the above, the Court finds that Plaintiff has demonstrated its entitlement to Summary Judgement under CPLR § 3213. As set forth in the sworn Affidavit of Carol S Jacobsen, Vice President of Plaintiff, Capital One, NA, the Plaintiff is the successor by merger to North Fork Bank. Thus, pursuant to Banking Law § 602, Capital One is considered the same entity as North Fork Bank, with regard to the 2007 Note and 2007 personal guarantees herein. Furthermore, the statement in the 2007 Guarantees to the effect that they are given in part, in consideration of future extensions of credit, is an enforceable provision under General Obligations Law § 5-1105. American Bank & Trust Co, 48 AD2d 790, 369 NYS 2d 155 ( 1st Dep't 1975) , affd, 39 NY2d 857, 386 NYS 2d 215, 352 NE 2d 132 ( 1976).

Nowhere in the papers submitted have the Defendants stated that they paid any of the monies set forth as due and owing under the subject Notes and Guarantees. While they have raised, in an affirmation, an equitable issue, with regard to the Plaintiff's refusal to settle this matter with them, there is no requirement in any of the instruments provided to the Court, that requires the Note and Guarantee holder to do so. Accordingly, Plaintiffs have set forth entitlement to Summary Judgment in Lieu of Complaint, in the amounts set forth in their papers, with pre Judgment interest at the rates set forth in their papers.

This constitutes the DECISION and ORDER of the Court. Submit Judgment in accordance herewith.

Dated: April 29, 2011

Riverhead, New York

EMILY PINES

J. S. C.