M&T Bank v. HR Staffing Solutions, Inc.

Appeal from a judgment of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered December 27, 2011. The judgment awarded plaintiff money damages against defendant V Michael Prencipe, also known as Vincent M. Prencipe.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff made a $150,000 loan to defendant HR Staffing Solutions, Inc. (HRS) that was guaranteed by defendants S. Graham Atkinson, also known as Shaner G. Atkinson, and V Michael Prencipe, also known as Vincent M. Prencipe (defendant). The loan was evidenced by a Business Access Line of Credit Note, which was dated January 5, 2007 and

In his answer, defendant denied signing the guaranty and contended that, at the time he executed the document at issue, Atkinson had provided him with only a signature page, telling him that it was “the signature page to permit [HRS] to obtain a bank card.” Defendant thus contended that the guaranty was invalid and unenforceable. Although defendant sent plaintiff a notice to depose plaintiffs “agents and/or employees,” plaintiff moved for summary judgment against defendant before those depositions could be conducted. Supreme Court properly granted the motion.

Contrary to defendant’s contention, the motion was not premature. “Defendant failed to demonstrate that facts essential to oppose the motion were in plaintiff's exclusive knowledge and possession and could be obtained by discovery” (Franklin v Dormitory Auth. of State of N.Y., 291 AD2d 854 , 854 [2002]; see CPLR 3212 [f]; Rowland v Wilmorite, Inc., 68 AD3d 1770 , 1770-1771 [2009]; Brummer v Barnes Firm, P.C., 56 AD3d 1177 , 1179 [2008]). It is well settled that the “[m]ere hope that somehow the [defendant] will uncover evidence that will prove a [defense] provides no basis pursuant to CPLR 3212 (f) for postponing a determination of a summary judgment motion” (Wright v Shapiro, 16 AD3d 1042 , 1043 [2005] [internal quotation marks omitted]; see Rowland, 68 AD3d at 1771 ; Brummer, 56 AD3d at 1179 ).

Even assuming, arguendo, that Atkinson failed to provide defendant with two out of the three pages of the guaranty and that Atkinson misrepresented the nature of the document to defendant, we nevertheless conclude that plaintiff is entitled to summary judgment against defendant. “Under long accepted principles one who signs a document is, absent fraud or other wrongful act of the other contracting party, bound by its contents” (Da Silva v Musso, 53 NY2d 543 , 550 [1981]; see Manufacturers & Traders Trust Co. v S.W.U. Assoc., 105 AD2d 1118 , 1119 [1984]; cf. Martin v Citibank, N.A., 64 AD3d 477 , 477-478 [2009]).

While defendant contends that Atkinson, who was defendant’s business partner in HRS, was acting as an agent of plaintiff when he sought to procure defendant’s signature on

Defendant’s reliance on Martin (64 AD3d at 477-478) is misplaced. In that case the plaintiff was not aware that pages were missing from the document given to him by the defendant’s employee, and the only evidence of the clause the bank sought to enforce was on the missing page. Here, however, defendant was aware that he had not been given the entire document and chose to rely, to his detriment, on the alleged representations of his business partner despite the clear and unambiguous language to the contrary on the page he did, in fact, receive. As we stated in Manufacturers & Traders Trust Co. ( 105 AD2d at 1119 ), “ ‘[i]f the signer could read the instrument, not to have read it was gross negligence; if he could not read it, not to procure it to be read was equally negligent; in either case the writing binds him’ (Pimpinello v. Swift & Co., 253 NY 159 , 162-163).” Present—Scudder, EJ., Peradotto, Bindley, Valentino and Martoche, JJ.