BNY FINANCIAL CORPORATION v. Neal Jacobs, Defendant-Appellant. (2001)

Order, Supreme Court, New York County (Paula Omansky, J.), entered on or about April 16, 1999, which, inter alia, granted plaintiff's motion for summary judgment as against defendant-appellant Neal Jacobs based upon his guarantee of the obligations of defendants N.G.N., Inc. and Reading Garment Co., and denied defendants' motion for leave to amend their pleading to assert a counterclaim for waste, and judgment, same court and Justice, entered May 10, 1999, inter alia, awarding BNY Financial Corporation judgment against defendant-appellant, in the principal amount of $304,958.76, unanimously affirmed, with costs.

In view of the failure of defendant-appellant and his co-defendants to particularize their claims that plaintiff BNY Financial Corp., the corporate defendants' factor, had, subsequent to the dissolution of the corporate defendants, been involved in the sale of their assets, and that the sale had been wasteful, the court properly denied defendants' motion for leave to assert a counterclaim for waste (see, Mestel & Co. Inc. v. Smythe, Masterson & Judd, Manda Weintraub, 181 A.D.2d 501, 581 N.Y.S.2d 586).   Additionally, the absence of any questions of fact concerning the amount by which defendants' obligations exceeded inventory warranted the grant of summary judgment on the guaranty executed by Jacobs.   In these circumstances, Jacobs's request to compel discovery is academic.