Supreme Court, Appellate Division, Second Department, New York.
LARIBEE WIRE MANUFACTURING CO., INC., Appellant,v.L & L WIRE COMPANY, INC., Defendant,Louis Haber, Respondent.
April 4, 1988.
Action was filed to recover damages for goods sold and delivered and to recover on a personal guarantee. The Supreme Court, Nassau County, Burke, J., denied the plaintiff's motion for summary judgment against the guarantor. Plaintiff appealed. The Supreme Court, Appellate Division, held that genuine issues of material fact existed, precluding summary judgment on the guarantor's liability.
Judgment 181(22)228k181(22) Most Cited Cases
Genuine issues of material fact existed, precluding summary judgment against guarantor in action to recover damages for goods sold and delivered and to recover on guarantee; triable issues of fact existed about circumstances surrounding sale of business, effect of guarantor's oral notification to plaintiff about sale of business, and conduct of parties with respect to satisfaction of outstanding debts. **602 Kirschenbaum & Kirschenbaum, P.C., Garden City (Ira Levine, of counsel), for appellant.
Gilbert Wallach, New York City (William J. Turkish, of counsel), for respondent.
Before THOMPSON, J.P., and BROWN, WEINSTEIN and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
*498 In an action to recover damages for goods sold and delivered and to recover on a personal guarantee executed by the defendant Louis Haber, the plaintiff appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated August 17, 1987, which denied its motion for summary judgment as against Louis Haber.
ORDERED that the order is affirmed, with costs.
It is uncontroverted that the goods for which payment was sought were sold subsequent to the defendant Haber's oral notification to the plaintiff of the sale of the corporate defendant. The sale was also made subsequent to the date on which *499 the plaintiff accepted payment by Haber for all outstanding obligations covered by the guarantee.
Under the circumstances, triable issues of fact exist with respect to the circumstances surrounding the sale of the business, the effect of Haber's oral notification and the conduct of the parties with respect to satisfaction of all outstanding debts such that the denial of the plaintiff's motion for summary judgment was proper.
526 N.Y.S.2d 601, 139 A.D.2d 498
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