North Fork Bank & Trust Company, Appellant, v. Lace Mill Associates, Inc., et al., Respondents, et al., Defendants

North Fork Bank & Trust Company, Appellant, v Lace Mill Associates, Inc., et al., Respondents, et al., Defendants. [638 NYS2d 669] [MAJORITY] —In an action to recover payment on promissory notes and personal guarantees, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Floyd, J.), dated January 23, 1995, which denied its motion for summary judgment against the defendants Lillian Healy, as executrix of the estate of John Healy, and Lace Mill Associates, Inc., and granted Lillian Healy’s cross motion for summary judgment dismissing the complaint insofar as it is asserted against her as the executrix of the estate of John Healy. Ordered that the order is modified by deleting the provision thereof which granted the cross motion of the defendant Lillian Healy, as executrix of the estate of John Healy, for summary judgment, and substituting therefor a provision denying the cross motion; as so modified the order is affirmed, without costs or disbursements. In this action to recover on promissory notes and personal guarantees, we agree with the plaintiff that its action against the estate of the deceased guarantor was not untimely pursuant to SCPA 1802 (see, King v Nicholson, 145 Misc 2d 977). However, contrary to the plaintiffs contention, it was not entitled to summary judgment against the estate of the deceased guarantor since there are questions of fact as to the parties’ intent with regards to an additional note executed following the death of the guarantor (see, Reiss & Son v Silver Colt Realty Assocs., 184 AD2d 205; Flaum v Birnbaum, 120 AD2d 183, 192; Wasserstrom v Interstate Litho Corp., 114 AD2d 952). The court also properly denied the branch of the plaintiffs motion which was for summary judgment against the defendant Lace Mill Associates, Inc., since there are questions of fact as to how the plaintiff applied certain sums it received from the other personal guarantors and whether those sums reduced the amount recoverable from the estate and Lace Mill Associates, Inc. For these same reasons, the court erred in granting Lillian Healy’s cross motion for summary judgment dismissing the complaint insofar as it is asserted against the estate. Sullivan, J. P., Santucci, Friedmann and Krausman, JJ., concur.