From Casetext: Smarter Legal Research

Ceglia v. Marine Midland Bank

Appellate Division of the Supreme Court of New York, Second Department
Jul 15, 2002
296 A.D.2d 473 (N.Y. App. Div. 2002)

Opinion

2001-04666

Argued May 14, 2002

July 15, 2002.

In an action for a judgment declaring the amount due on a line of credit agreement, the defendant appeals from so much of an order of the Supreme Court, Nassau County (Burke, J.), dated May 1, 2001, as denied its motion for summary judgment dismissing the complaint and for summary judgment in its favor on its first, second, and fifth counterclaims.

Phillips, Lytle, Hitchcock, Blaine Huber, LLP, New York, N.Y. (Michael J. DiLeo of counsel), for appellant.

Samuel I. Glass, Hempstead, N.Y., for respondents.

Before: FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, HOWARD MILLER, BARRY A. COZIER, JJ.


DECISION ORDER

ORDERED that the order is modified, on the law, by deleting the provision thereof denying the motion and substituting therefor a provision granting the motion to the extent of granting partial summary judgment to the appellant on the issue of liability on the first, second, and fifth counterclaims; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court erred in denying, as premature, the defendant's motion for summary judgment on its first, second, and fifth counterclaims, to recover on a line of credit agreement and guarantee and for the costs of enforcing the agreement and guarantee. The defendant established its entitlement to summary judgment by submitting proof that the plaintiff Sky-Sea Forwarding Corp. (hereinafter Sky-Sea) defaulted on its obligations under the line of credit agreement and that the plaintiff Arnold Ceglia failed to honor his guarantee of Sky-Sea's obligations (see Governor Co. of Bank of Ireland v. Dromoland Castle, 212 A.D.2d 759) . In opposition to the motion, the plaintiffs failed to demonstrate the existence of a defense to the counterclaims. However, they did demonstrate the existence of a triable issue of fact as to whether they are entitled to certain offsets. The plaintiffs came forward with evidence that Sky-Sea was charged certain fees in breach of an oral agreement that such fees would not be charged. Contrary to the defendant's contention, the alleged oral agreement does not contradict the terms of its "Rules for Deposit Accounts" which authorize, but do not require, the imposition of such fees. Consequently, there is an issue of fact as to the amount owed by the plaintiffs. However, the Supreme Court should have granted the defendant partial summary judgment on the issue of liability on its first, second, and fifth counterclaims.

In making our determination, we have not considered matter in the plaintiffs' brief which is dehors the record, nor their argument based upon it.

SANTUCCI, J.P., ALTMAN, H. MILLER and COZIER, JJ., concur.


Summaries of

Ceglia v. Marine Midland Bank

Appellate Division of the Supreme Court of New York, Second Department
Jul 15, 2002
296 A.D.2d 473 (N.Y. App. Div. 2002)
Case details for

Ceglia v. Marine Midland Bank

Case Details

Full title:ARNOLD CEGLIA, et al., respondents, v. MARINE MIDLAND BANK, appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 15, 2002

Citations

296 A.D.2d 473 (N.Y. App. Div. 2002)
745 N.Y.S.2d 470

Citing Cases

Suffolk County National Bank v. Columbia Telecommunications Group, Inc.

In opposition to the plaintiffs showing, Giladi failed to raise an issue of fact as to his liability to the…

HSBC Bank USA, N.A. v. Laniado

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the…