IN RE: LIQUIDATION OF UNION INDEMNITY INSURANCE COMPANY OF NEW YORK. (2005)

Judgment, Supreme Court, New York County (Karla Moskowitz, J.), entered May 27, 2004, awarding plaintiff liquidator $85,000, plus interest, costs and disbursements, pursuant to an order which, in an action by plaintiff on an investor bond in which the insolvent insurance company guaranteed payment of an $85,000 promissory note made by defendant to purchase a certain investment and defendant agreed to indemnify the insolvent insurance company for any amount it paid on such guarantee, inter alia, granted plaintiff's motion for partial summary judgment on the cause of action to recover the principal amount of the note, and denied defendant's cross motion to amend his answer and for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant fails to adduce evidence sufficient to raise an issue of fact as whether the bond's obligee was a participant in a fraud of which defendant was one of the victims, or otherwise show reason for not enforcing his express waiver in the bond of any and all defenses against plaintiff's recoupment of his payment obligation (see Matter of Union Indem. Ins. Co. [Spira], 289 A.D.2d 173, 736 N.Y.S.2d 1 [2001], lv. dismissed 98 N.Y.2d 672, 746 N.Y.S.2d 459, 774 N.E.2d 224 [2002] ).   Assuming the waiver is ineffective as against the statute of limitations, the action was timely commenced in April 1999, well within the six-year limitations period that began to run upon plaintiff's payment of the $85,000 to the obligee in February 1998 (CPLR 213[2];  see Matter of American Druggists' Ins. Co. [Kenny], 15 A.D.3d 268, 789 N.Y.S.2d 483 [2005], lv. dismissed 5 N.Y.3d 746, 800 N.Y.S.2d 375, 833 N.E.2d 710 [2005] ).

We have considered and rejected defendant's other arguments.