Opinion
May 12, 1986
Appeal from the Supreme Court, Queens County (Hyman, J.).
Order affirmed, without costs or disbursements. The plaintiff's motion papers are deemed the complaint. The defendant's time to serve an answer thereto is extended to 20 days after service upon him of a copy of the order to be made hereon with notice of entry.
In addition to his being a party to the agreement creating the obligation secured by the promissory note, the defendant guarantor Benjamin Atkin is also the president and sole stockholder of the corporate principal, thus creating a situation where principal and guarantor are "truly one and the same" (Walcutt v Clevite Corp., 13 N.Y.2d 48, 56). Accordingly, the defendant may properly assert the principal's defenses in an action on his guarantee (see, Walcutt v Clevite Corp., supra, at pp 56-57). Questions of fact having been raised concerning, inter alia, the propriety of the plaintiff creditor's liquidation of the corporate assets which were held in escrow, and the defendant's right to a setoff of the proceeds of such sale, summary judgment was properly denied. Eiber, J.P., Kunzeman, Kooper and Spatt, JJ., concur.