Opinion
January 30, 1996
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
The IAS Court properly granted plaintiff summary judgment on the guarantees as defendants failed to present evidence warranting a trial ( see, Zuckerman v City of New York, 49 N.Y.2d 557, 562). As the guarantees contained waivers of all defenses other than payment, defendants were precluded from asserting claims of release ( see, Citibank v Plapinger, 66 N.Y.2d 90). Even if such defense had not been waived, the claim that defendant Chow's guarantee was given to release defendant Lee from his guarantee was barred by the parol evidence rule since the terms of the guarantee were not ambiguous ( see, Namad v Salomon, Inc., 74 N.Y.2d 751, 753) and reflected no such intent. Nor was the Chow guarantee a novation which discharged Lee's obligation, since the continuing guarantee expressly provided that it could not be modified or discharged without a writing and no such writing existed ( see, Chemical Bank v Sepler, 60 N.Y.2d 289, 294; Marine Midland Bank v Daubney Bowling Enters., 136 A.D.2d 963, 963-964, lv denied 72 N.Y.2d 810). Finally, no evidentiary proof was presented supporting a claim of a $49,788.49 payment on the loan.
Concur — Rosenberger, J.P., Wallach, Nardelli and Williams, JJ.