METAL MANAGEMENT INC v. ESMARK INCORPORATED (2008)

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered October 26, 2007, which denied plaintiff's motion for summary judgment in lieu of complaint, unanimously affirmed, with costs.

 Plaintiff has not established its prima facie entitlement to accelerated judgment pursuant to CPLR 3213.   Its claim, based on a guaranty, requires resort to external documents, since the guarantor guaranteed the punctual payment when due of all payment obligations pursuant to each purchase order and payment of the guaranteed obligations strictly in accordance with the terms of each purchase order, and the purchase orders required that invoices be issued, that the goods furnished be of good quality, and that any discrepancies be resolved prior to invoicing (see Weissman v. Sinorm Deli, 88 N.Y.2d 437, 444, 646 N.Y.S.2d 308, 669 N.E.2d 242 [1996];  Tradition N. Am. v. Sweeney, 133 A.D.2d 53, 53-54, 518 N.Y.S.2d 982 [1987] ).

 In any event, despite all the documents submitted by plaintiff, a clear issue of fact exists as to the quantum of damages due under the guaranty, as to which plaintiff bears the burden of proof (see J.R. Loftus, Inc. v. White, 85 N.Y.2d 874, 877, 626 N.Y.S.2d 52, 649 N.E.2d 1196 [1995] ).