Commercial Credit Services Corporation, Respondent, v. James H. Cosgriff, Jr., Appellant

Commercial Credit Services Corporation, Respondent, v James H. Cosgriff, Jr., Appellant. (Appeal No. 1.) [MAJORITY] —Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings, in accordance with the following memorandum: Defendant appeals from an order granting plaintiffs motion for summary judgment in its action to enforce defendant’s personal guarantee of a corporate note. We agree with the court that defendant’s bare allegations of fraud are unsupported and insufficient to defeat plaintiffs right to recover on the guarantee, which by its terms is continuing, unconditional, and not affected by extrinsic or subsequent events. Thus, plaintiff is entitled to partial summary judgment on the issue of liability. However, there must be a trial on the issue of damages. In support of his motion to renew or reargue the motion for summary judgment and to resettle the order granting judgment to plaintiff, defendant averred that $50,523.03, representing the proceeds from the sale of collateral, had been applied to the note by bankruptcy court. Plaintiff failed to rebut that assertion. Thus, defendant has raised a triable question of fact concerning the amount due on the note. In view of our modification, plaintiffs appeal from the order denying its motion to vacate the order staying enforcement of judgment is dismissed as academic. (Appeal from order of Supreme Court, Erie County, McGowan, J.— summary judgment.) Present—Callahan, J. P., Denman, Boomer, Lawton and Davis, JJ.