[*1]
Giampilis v Torres
2014 NY Slip Op 51317(U) [44 Misc 3d 142(A)]
Decided on August 20, 2014
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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 20, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2012-2512 Q C

Peter Giampilis, Appellant,

against

Efrem Torres, Respondent.


Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered July 30, 2012. The order denied plaintiff's motion for summary judgment in lieu of complaint.

ORDERED that the order is reversed, without costs, plaintiff's motion for summary judgment in lieu of complaint is granted, and the matter is remitted to the Civil Court for the entry of judgment awarding plaintiff the principal sum of $10,214.27 plus reasonable attorney's fees, following an assessment thereof.

By summons and motion for summary judgment in lieu of complaint (CPLR 3213), plaintiff sought judgment in the sum of $10,214.27 based on a breach of a written guaranty. In support of the motion, plaintiff alleged that defendant had defaulted in making all of the installment payments due under the guaranty executed by defendant. In addition, plaintiff stated that, pursuant to the terms of the guaranty, he is entitled to recover reasonable attorney's fees. In opposition to the motion, defendant claimed that he had never read the guaranty before he had signed it, and he asserted the defenses of fraud in the inducement and payment. The Civil Court denied plaintiff's motion for summary judgment.

We find that plaintiff made a prima facie showing of his entitlement to summary judgment in the sum of $10,214.27 plus reasonable attorney's fees, by his submission of the guaranty agreement and his affidavit of nonpayment by defendant (see Seaman-Andwall Corp. v Wright Mach. Corp., 31 AD2d 136 [1968]; see also Boland v Indah Kiat Fin. [IV] Mauritius, 291 AD2d 342 [2002]).

Defendant's defense that he failed to read the guaranty lacks merit since defendant cannot avoid the effect of the guaranty on the ground that he did not read it or know its contents (see Pimpinello v Swift & Co., 253 NY 159, 162-163 [1930]; Sofio v Hughes, 162 AD2d 518 [1990]). In addition, we find that defendant failed to meet his burden of establishing fraud in the inducement (see Dalessio v Kressler, 6 AD3d 57 [2004]; Mix v Neff, 99 AD2d 180, 183 [1984]) or payment. The estoppel certificate annexed to defendant's papers, which defendant alleged supported his defense that he


had not breached the guaranty, was not executed by the parties, and there was no proof establishing that they had orally agreed to the terms therein. Thus, defendant failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Finally, as to the issue of attorney's fees, the matter is remitted to the Civil Court for [*2]further proceedings to determine the amount of reasonable attorney's fees to which plaintiff is entitled pursuant to the guaranty.

Pesce, P.J., Solomon and Elliot, JJ., concur.


Decision Date: August 20, 2014