In an August 4, 2010 decision by Justice Fried, the court granted the plaintiff’s motion for summary judgment in lieu of a complaint pursuant to CPLR § 3213 based on the defendants’ non-payment of a guaranty. The court found there was no genuine issue of fact because the plaintiff undisputedly established that: (1) the defendants executed an absolute and unconditional guaranty promising to pay all of the liabilities of a non-party under a note given by that non-party in favor of the plaintiff bank; (2) the defendants waived any right to notice of default under the note; (3) the plaintiff was not required to take action against the third-party before exercising its rights under the guaranty; (4) the non-party defaulted under the note; and (5) neither the third-party nor the defendants made the requisite payments.
The court also denied the defendants’ motion to dismiss the complaint which argued that the plaintiff lacked the capacity to sue because it was a foreign banking institution that could only foreclose on property, and because there was a prior action pending in Florida. The court rejected both arguments finding: (1) the Banking Law does not contain the defendants’ asserted restriction, but rather permits a foreign banking corporation which maintains an office in New York (as the plaintiff does) to enforce obligations it acquired in the transaction of business outside of the state; (2) dismissal was not required under CPLR § 3211(a)(4) because the Florida action was not between the same parties for the same cause of action; and (3) RPAPL §1301(3) was inapplicable because the property securing the note was located outside of New York.