NORTH FORK BANK v. Ronald Christopher, appellant. (2008)

In an action to recover on a promissory note and guaranty brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendant Ronald Christopher appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Burke, J.), dated December 8, 2006, as granted that branch of the motion which was to recover on the guaranty against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The plaintiff demonstrated its entitlement to judgment as a matter of law by establishing that the defendant Ronald Christopher unconditionally guaranteed the payment of the obligations of the defendant ABC Merchant Services, Inc. (hereinafter ABC), arising out of a promissory note which Christopher signed in his capacity as president of ABC, that ABC defaulted on its obligations under the terms of the promissory note, and that Christopher defaulted on his obligations under the terms of the guaranty (see Suffolk County Natl. Bank v. Columbia Telecom. Group, Inc., 38 A.D.3d 644, 645, 832 N.Y.S.2d 80;  Silver v. Silver, 17 A.D.3d 281, 792 N.Y.S.2d 900;  Sterling Vision v. Joel, 279 A.D.2d 568, 719 N.Y.S.2d 685;  North Fork Bank v. Rosen, 225 A.D.2d 598, 639 N.Y.S.2d 454;  Bennell Hanover Assoc. v. Neilson, 215 A.D.2d 710, 711, 627 N.Y.S.2d 439;  National Westminster Bank, U.S.A. v. Barrier Tech. Corp., 131 A.D.2d 552, 516 N.Y.S.2d 275;  Ihmels v. Kahn, 126 A.D.2d 701, 511 N.Y.S.2d 306).   In opposition, Christopher's conclusory and unsubstantiated assertions that were inconsistent with the unrefuted documentary evidence failed to raise a triable issue of fact regarding his contentions that the Supreme Court improperly exercised personal jurisdiction over him as a nondomiciliary and that he was fraudulently induced by the plaintiff's representative to sign the personal guaranty (see State Bank of India v. Taj Lanka Hotels, 259 A.D.2d 291, 686 N.Y.S.2d 44;  O'Brien v. O'Brien, 258 A.D.2d 446, 685 N.Y.S.2d 254;  North Fork Bank v. Rosen, 225 A.D.2d 598, 639 N.Y.S.2d 454;  Drake Am. Corp. v. Speakman Co., 144 A.D.2d 529, 534 N.Y.S.2d 679).   Moreover, since the guaranty, by its terms, was absolute and unconditional regardless of the validity or enforceability of any other obligation, and such recitals were inconsistent with Christopher's claim of fraud and reliance upon oral representations, fraud in the inducement is not a viable defense to enforcement of the guaranty (see Citibank v. Plapinger, 66 N.Y.2d 90, 93, 495 N.Y.S.2d 309, 485 N.E.2d 974;  Korea Exch. Bank v. A.A. Trading Co., 8 A.D.3d 344, 345, 777 N.Y.S.2d 736;  Sacco v. Sutera, 266 A.D.2d 446, 447, 698 N.Y.S.2d 532).

 Christopher's remaining contentions regarding improper service of process and vagueness and ambiguity in a portion of the guaranty are raised for the first time on appeal and are therefore not properly before this Court (see Lawler v. City of Yonkers, 45 A.D.3d 813, 813-814, 847 N.Y.S.2d 121;  Merchants Bank of N.Y. v. Stahl, 269 A.D.2d 236, 702 N.Y.S.2d 813).