WINCHESTER GLOBE TRUST COMPANY v. FIRST SECURED CAPITAL CORPORATION (2001)

In an action, in effect, to permanently enjoin the defendants from violating the terms of a loan agreement, the defendant First Secured Capital Corporation appeals from so much of an order of the Supreme Court, Nassau County (Martin, J.), dated June 13, 2000, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

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

On November 28, 1997, a loan agreement was executed by the plaintiff and the defendant First Secured Capital Corporation (hereinafter First Secured).   After the plaintiff commenced this action seeking, in effect, to permanently enjoin the defendants from violating the terms of the loan agreement, First Secured moved for summary judgment dismissing the complaint insofar as asserted against it, contending that the loan contemplated by the November 28, 1997, agreement was never made, and that the loans which the plaintiff made to it were separate, independent transactions, governed by their own agreements.   The plaintiff asserts that each loan it made to First Secured was made pursuant to the November 28, 1997, agreement.

The Supreme Court correctly denied the motion for summary judgment, as there are triable issues of fact concerning whether the parties intended the terms of the November 28, 1997, loan agreement to govern all of the loans made by the plaintiff to First Secured (see, Siegel v. Golub, 286 A.D.2d 489, 729 N.Y.S.2d 755;  Riccardelli v. Crawford, 237 A.D.2d 273, 655 N.Y.S.2d 378).