Banca Nazionale Del Lavoro (New York Branch) v. Marks ( 1994 )

Order, Supreme Court, New York County (Myriam J. Altman, J.), entered on or about July 1, 1993, which, inter alia, denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Defendants, personal, as well as business accountants of the Papis, forwarded a letter to plaintiff-bank setting forth the net personal worth of the Papis, upon which plaintiff-bank allegedly relied in extending credit to the Papis’ corporation. The letters contained false information about the Papis’ assets. The corporate indebtedness was guaranteed by personal guarantees from the Papis. We agree with the IAS Court that summary judgment should be denied at this juncture.

Contrary to defendants’ claim on this appeal, questions of fact exist as to the plaintiff-bank’s justifiable reliance on the letters in extending additional credit and in not taking immediate action to recover under personal guarantees of the Papis. The failure of plaintiff to produce the earlier guarantees is not fatal, since full disclosure has not been completed and, further, since plaintiff’s entire case does not rest on these earlier guarantees. Moreover, partial summary judgment for credit extended prior to the defendants’ letters to the plaintiff-bank would be inappropriate at this time, since plaintiff may be able to demonstrate that absent the letters, it would have taken immediate action against the Papis and would not have suffered a loss on the loans predating the letters.

We have considered defendants’ remaining claims and find them to be without merit. Concur — Sullivan, J. P., Ellerin, Kupferman, Rubin and Tom, JJ.