Opinion
9835 Index 159611/17
07-09-2019
J.K. TRADING ASSOCIATES, INC., Plaintiff–Respondent, v. Avnissh PATEL, Defendant–Appellant.
Goetz Fitzpatrick LLP, New York (Scott D. Simon of counsel), for appellant.
Goetz Fitzpatrick LLP, New York (Scott D. Simon of counsel), for appellant.
Sweeny, J.P., Manzanet–Daniels, Webber, Gesmer, Kern, JJ.
Order, Supreme Court, New York County (Robert David Kalish, J.), entered December 21, 2018, which denied defendant's motion to dismiss the complaint, unanimously affirmed, with costs.
Defendant's argument that the personal guarantee language in the memoranda at issue was insufficient to bind him, requiring dismissal of this action, is unavailing at this stage of the litigation (see MIMS Master Fund, L.P. v. Cambi, 155 A.D.3d 449, 64 N.Y.S.3d 10 [1st Dept. 2017], lv dismissed 31 N.Y.3d 1062, 77 N.Y.S.3d 331, 101 N.E.3d 972 [2018] ). Defendant's claims of vagueness are defeated by his own affidavit, in which he states that he knew plaintiff wanted a personal guarantee from him. Similarly unpersuasive is defendant's argument that he cannot be held personally liable, since he did not sign on the signature lines of the memoranda, but above them in a box describing the consigned merchandise, and thus cannot be bound by any terms outside that box (see Chen v. Yan, 109 A.D.3d 727, 971 N.Y.S.2d 519 [1st Dept. 2013] ). Defendant did not strike out the guarantor language, or otherwise express disagreement with it. Furthermore, the subject memoranda were between plaintiff and "Sirgold/Avnissh Patel" and not merely defendant's company Sirgold (see Key Equip. Fin. v. South Shore Imaging, Inc., 69 A.D.3d 805, 893 N.Y.S.2d 574 [2d Dept. 2010] ).