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GUARANTY WHICH DID NOT HAVE A FORUM SELECTION CLAUSE DEEMED TO BE SUBJECT TO THE CLAUSE IN A RELATED CONTRACT EXECUTED CLOSE IN TIME, SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED, OUTSIDE PROOF NECESSARY.

The Second Department determined the forum selection clause in the loan contract was enforceable and applied to the related guaranty (which did not include a similar clause). The Second Department further determined Supreme Court should not have granted plaintiff’s motion for summary judgment in lieu of complaint because proof of the amount owed required proof in addition to the documents:

… “[D]ocuments executed at about the same time and covering the same subject matter are to be interpreted together, even if one does not incorporate the terms of the other by reference, and even if they are not executed on the same date, so long as they are substantially’ contemporaneous” … . Contrary to the defendant’s contention, the agreement and guaranty were executed sufficiently close in time and relate to the same subject matter, such that they should be interpreted together to determine the parties’ intent to be bound by the forum selection clause … . * * *

Although an unconditional guarantee may qualify as an instrument for the payment of money only … , here, neither the guaranty nor the underlying agreement relied upon by the plaintiff in support of its motion contains an unconditional promise to pay a sum certain, signed by the maker and due on demand or at a definite future time … . Since proof outside of the guaranty and underlying agreement is required to establish the amount of Platinum’s obligation to the plaintiff pursuant to the agreement, the plaintiff’s motion for summary judgment in lieu of complaint should have been denied, with the motion and answering papers deemed to be the complaint and answer, respectively … . Oak Rock Fin., LLC v Rodriguez, 2017 NY Slip Op 02048, 2nd Dept 3-22-17

 

CIVIL PROCEDURE (GUARANTY WHICH DID NOT HAVE A FORUM SELECTION CLAUSE DEEMED TO BE SUBJECT TO THE CLAUSE IN A RELATED CONTRACT EXECUTED CLOSE IN TIME, SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED, OUTSIDE PROOF NECESSARY)/CONTRACT LAW (FORUM SELECTION CLAUSE, (GUARANTY WHICH DID NOT HAVE A FORUM SELECTION CLAUSE DEEMED TO BE SUBJECT TO THE CLAUSE IN A RELATED CONTRACT EXECUTED CLOSE IN TIME, SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED, OUTSIDE PROOF NECESSARY)/GUARANTY ((GUARANTY WHICH DID NOT HAVE A FORUM SELECTION CLAUSE DEEMED TO BE SUBJECT TO THE CLAUSE IN A RELATED CONTRACT EXECUTED CLOSE IN TIME, SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED, OUTSIDE PROOF NECESSARY)/SUMMARY JUDGMENT IN LIEU OF COMPLAINT (GUARANTY WHICH DID NOT HAVE A FORUM SELECTION CLAUSE DEEMED TO BE SUBJECT TO THE CLAUSE IN A RELATED CONTRACT EXECUTED CLOSE IN TIME, SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED, OUTSIDE PROOF NECESSARY)

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Allegations of Mutual Mistake in Counterclaim and Affirmative Defense Not Made With Requisite Particularity
DEFENDANT WAS ENTITLED TO THE VACATION OF THE SENTENCE FOR THE MURDER OF HIS FATHER’S GIRLFRIEND UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (SECOND DEPT).
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ABSENT SUBSTANTIAL PREJUDICE OR OTHER IMPROPER RESULTS, A MOTION FOR LEAVE TO DISCONTINUE THE ACTION WITHOUT PREJUDICE SHOULD BE GRANTED (SECOND DEPT).
PLAINTIFF’S MOTION TO AMEND THE NOTICE OF CLAIM TO ADD ALLEGATIONS WHICH MERELY AMPLIFIED THE ALLEGATIONS IN THE ORIGINAL NOTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​
NOTIFICATION OF AN INTENTION TO CANCEL AN AUTOMOBILE INSURANCE POLICY IF A QUESTIONNAIRE IS NOT SUBMITTED IS NOT A VALID CANCELLATION, THE POLICY REMAINED IN EFFECT DESPITE THE INSURED’S FAILURE TO SUBMIT THE QUESTIONNAIRE (SECOND DEPT).

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