National Westminster Bank v. Bronstein

In 1981, defendant guaranteed a loan to a corporation of which he was president extended by plaintiffs predecessor in interest, which loan was repaid in March 1982. In September 1986, the corporation defaulted on a second loan extended by plaintiff, giving rise to this action against defendant as guarantor. A motion for summary judgment by plaintiff was successfully opposed by defendant on the ground that he had revoked the 1981 guarantee in a letter sent to plaintiff, dated March 11, 1982. Defendant also asserted that he was informed by plaintiffs officer, to whom he had sent the letter of revocation, that the guarantee would be destroyed. In a reply affidavit, plaintiffs officer denied receipt of the letter and maintained that the alleged letter also failed to comply with the terms of the guarantee pertaining to cancellation.

By its terms, the continuing personal guarantee on which the action is based could be terminated by defendant through the giving of written notice of termination "duly receipted” by plaintiff. An issue of fact exists as to whether defendant actually sent such a notice; in addition, the instrument is ambiguous as to the manner in which plaintiff was to acknowledge receipt. Whether the acknowledgment had to be relayed in writing, or could be communicated orally, is not clear from the face of the instrument. Concur—Murphy, P. J., Sullivan, Carro, Kassal and Wallach, JJ. [See, — AD2d — (July 10, 1990).]