FLEET BANK v. BROBEIL MARINE INC (1997)

Supreme Court erred in denying plaintiff's motion for summary judgment in lieu of complaint.   The record establishes that, on March 28, 1994, defendant Brobeil Marine, Inc., executed a commercial purpose master note-demand in favor of plaintiff.   That note provided that “[a]ll principal and interest under this Note are payable ON DEMAND by Bank”.   The remaining defendants executed guaranty and indemnity agreements in which they unconditionally guaranteed to plaintiff “the payment of all indebtedness, liabilities and obligations of Debtor to Bank of every kind and nature * * * whether heretofore or hereafter created, arising or existing or at any time due or owing from Debtor to Bank”.   Plaintiff subsequently served defendants with demands for payment of the principal and interest owed on the note.   Despite those demands, defendants have refused to pay the principal and interest owed on the note.

 Plaintiff was entitled to demand full payment of the note on any date after its execution (see, Rockland-Atlas Natl. Bank of Boston v. Heller, 3 A.D.2d 896, 162 N.Y.S.2d 89).   Because Brobeil Marine, Inc., as signatory of the note, and the remaining defendants, as guarantors of the note, have refused to pay the note upon plaintiff's demand, plaintiff is entitled to summary judgment.   Thus, we reverse the order, grant the motion and remit the matter to Supreme Court to determine the amount due and owing under the note, including reasonable attorney's fees.

Order unanimously reversed on the law with costs to plaintiff, motion granted, cross motion denied and matter remitted to Supreme Court for further proceedings.

MEMORANDUM.