Chelsea National Bank v. Reed Lawrence Story, Inc.

Judgment, Supreme Court, New York County, entered August 6, 1975, in favor of plaintiff in the approximate sum of $135,000 pursuant to the granting of plaintiffs motion for summary judgment in lieu of complaint (CPLR 3213), unanimously modified, on the law, to the extent of denying plaintiffs motion for summary judgment as to defendant Croydon Associates and directing the plaintiff and said defendant to serve pleadings; as so modified, the judgment is affirmed, without costs and disbursements. Study of the record discloses triable issues of fact as to whether the guarantee of the note of the Reed Lawrence Story, Inc., by Croydon Associates, a limited partnership (executed on Croydon Associates’ behalf by its then general partner VTR Leasing, Inc.) was without the powers of Croydon Associates, and whether the general partner was authorized to execute the guarantee on behalf of the partnership. It is noted that the affidavit of the partnership’s attorney relating to matters not requiring personal knowledge in that it commented on the partnership agreement and the amendment thereto should have been considered in opposition to plaintiffs motion. The affidavit of the partnership’s new general partner is entitled to similar consideration in light of the fact that the defenses raised belong to the limited partnership and not to any particular partner. The limited partnership agreement provides that its purpose is to engage in the business of owning and leasing equipment and making investments of every kind and nature whatsoever. It cannot be resolved on this record as a matter of law whether the subject guarantee comports with the afore-mentioned purpose. With respect to the counterclaim of Croydon Associates, in view of the denial of summary judgment to plaintiff and this court’s direction that pleadings be served, said counterclaim may be pleaded in the answer. Concur—Kupferman, J. P., Murphy, Lupiano, Silverman and Lane, JJ.