Opinion
March 18, 1968
Order of the Supreme Court, Nassau County, dated October 5, 1967, which denied plaintiff's motion for summary judgment, reversed, on the law, with $10 costs and disbursements; motion granted; and action remitted to said court for assessment of damages before the court without a jury, at a Trial Term, in accordance with CPLR 3212 (subd. [c]). In this action by a bank on guarantees executed by defendants to secure obligations owed by a corporation to the bank, no triable issue is raised by the guarantors' defense and counterclaim based on duress, fraud and deceit allegedly practiced by the creditor bank upon the corporate principal, it being for the principal to determine what use it will make thereof ( Ettlinger v. National Sur. Co., 221 N.Y. 467, 469-470; Elliott v. Brady, 192 N.Y. 221, 225-226; City of New York v. Fidelity Deposit Co. of Md., 253 App. Div. 676, 678). Furthermore, in the gurantee executed by each of the defendants it is provided: "Guarantor waives a trial by jury and the right to interpose counterclaims or set-offs of any kind and description in any litigation". However, a triable issue of fact is presented as to the amount due. Therefore, an assessment of damages is required. Christ, Acting P.J., Brennan, Hopkins, Benjamin and Munder, JJ., concur.