Estate of Broche v. Tai , 949 N.Y.S.2d 651 ( 2012 )

— In an action to recover on a guarantee, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated October 19, 2011, which denied its motion for summary judgment, and granted the defendant’s cross motion for summary judgment dismissing the action.

Ordered that the order is affirmed, with costs.

In order to recover on a guarantee, a plaintiff must establish that payment on the underlying debt was due (see Griffon V, LLC v 11 E. 36th, LLC, 90 AD3d 705, 706 [2011]; Superior Fid. Assur., Ltd. v Schwartz, 69 AD3d 924, 925 [2010]). In support of her cross motion for summary judgment dismissing the action, the defendant established, prima facie, that the underlying transaction was timely canceled, and that payment pursuant to the underlying mortgage and note was not due. In opposition, the plaintiff failed to raise a triable issue of fact. Thus, the defendant’s cross motion for summary judgment dismissing the action was properly granted and, for the same reason, the plaintiffs motion for summary judgment in lieu of complaint was properly denied.

The parties’ remaining contentions either are without merit or need not be reached in light of our determination. Dillon, J.P., Leventhal, Austin and Roman, JJ., concur.