J.K. Trading Assoc., Inc. v. Patel , 2019 NY Slip Op 5492 ( 2019 )

J.K. Trading Assoc., Inc. v Patel (2019 NY Slip Op 05492)

J.K. Trading Assoc., Inc. v Patel

2019 NY Slip Op 05492

Decided on July 9, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 9, 2019
Sweeny, J.P., Manzanet-Daniels, Webber, Gesmer, Kern, JJ.

9835 159611/17

[*1]J.K. Trading Associates, Inc., Plaintiff-Respondent,

v

Avnissh Patel, Defendant-Appellant.

Goetz Fitzpatrick LLP, New York (Scott D. Simon of counsel), for appellant.

Order, Supreme Court, New York County (Robert David Kalish, J.), entered December 21, 2018, which denied defendant's motion to dismiss the complaint, unanimously affirmed, with costs.

Defendant's argument that the personal guarantee language in the memoranda at issue was insufficient to bind him, requiring dismissal of this action, is unavailing at this stage of the litigation (see MIMS Master Fund, L.P. v Cambi, 155 AD3d 449 [1st Dept 2017], lv dismissed 31 NY3d 1062 [2018]). Defendant's claims of vagueness are defeated by his own affidavit, in which he states that he knew plaintiff wanted a personal guarantee from him. Similarly unpersuasive is defendant's argument that he cannot be held personally liable, since he did not sign on the signature lines of the memoranda, but above them in a box describing the consigned merchandise, and thus cannot be bound by any terms outside that box (see Chen v Yan, 109 AD3d 727 [1st Dept 2013]). Defendant did not strike out the guarantor language, or otherwise express disagreement with it. Furthermore, the subject memoranda were between plaintiff and "Sirgold/Avnissh Patel" and not merely defendant's company Sirgold (see Key Equip. Fin. v South Shore Imaging, Inc., 69 AD3d 805 [2d Dept 2010]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 9, 2019

CLERK