J. Kings Food Serv. Professionals, Inc. v Silva (2011 NY Slip Op 50820(U))

J. Kings Food Serv. Professionals, Inc. v Silva

2011 NY Slip Op 50820(U) [31 Misc 3d 140(A)]

Decided on May 3, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

J. Kings Food Service Professionals, Inc., Appellant, NO~ 2010-960 S C

against

Marcos A. Silva, Respondent.

Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered February 25, 2010. The order, insofar as appealed from as limited by the brief, denied plaintiff's motion for summary judgment.

Plaintiff sold food and other supplies to San Juliani, LLC (San Juliani), which operated the Laguna restaurant. Defendant, a former co-owner of San Juliani, had guaranteed the payment of all of San Juliani's obligations to plaintiff, "now existing or hereafter arising." After bankruptcy proceedings were commenced by San Juliani, plaintiff brought this action against defendant, pursuant to his guaranty, to recover monies that San Juliani allegedly owed plaintiff. Immediately following the joinder of issue, and before any discovery had occurred, plaintiff moved for summary judgment. By submitting proof of the existence of an underlying obligation, defendant's personal guaranty of the obligation, and San Juliani's failure to pay at least some portion of its obligation, plaintiff made out a prima facie case against defendant on the issue of liability (see HSBC Bank USA, N.A. v Laniado, 72 AD3d 645 [2010]; City of New York v Clarose Cinema Corp., 256 AD2d 69, 71 [1998]). However, in his opposing papers, defendant commented that no discovery had yet been had, and, noting that he had previously relinquished any ownership interest in San Juliani, raised an issue of fact as to the amount of San Juliani's debt to plaintiff which remained unpaid. The obligor on a guaranty can properly assert a defense with respect to the amount due from the guarantor's principal to the plaintiff (see H.H. & F.E. Bean, Inc. v Travelers Indem. Co., 67 AD2d 1102, 1103 [1979]). Moreover, even if a plaintiff has met his initial burden of making out a prima facie case in an action on a guaranty, a motion for summary judgment in such an action is premature where discovery may disclose that issues of fact exist as to whether the sums in issue have been paid, in whole or in part (see Gera
v All-Pro Athletics, Inc., 57 AD3d 726, 728 [2008]). The District Court thus properly denied plaintiff's motion for summary judgment.