Federal Deposit Insurance Corporation v. Frank L. Marino Corp. Et Al‪.‬

In an action on a promissory note and guarantees of payment thereof, and to recover overdrafts on a checking account, plaintiff appeals from so much of a judgment of the Supreme Court, Nassau County, entered July 16, 1979, as, upon denial of its motion for summary judgment as to the individual defendants, severed the action against them. Judgment affirmed insofar as appealed from, with $50 costs and disbursements. The individual defendants (respondents) are guarantors of the obligations of Frank L. Marino Corp. The plaintiff, the receiver of the assets of Franklin National Bank, brought this action to recover on a note executed by Frank L. Marino Corp. and guaranteed by the individual defendants. Collateral security had been posted by the individual defendants. During 1973 the obligor suffered financial setbacks and was unable to pay its obligations. Frank and Joseph Marino requested the bank to liquidate the collateral in light of this development. Rather than complying with that request, the bank renewed the note. On October 8, 1974, the bank was declared insolvent and the plaintiff took over its assets. The plaintiff was requested to sell the collateral but did not, and the collateral subsequently declined in value. In denying plaintiffs motion for summary judgment as against the individual defendants, Special Term held that they had stated a triable issue of fact. The respondents argued that the failure of the bank to liquidate the collateral on their request was negligence and a breach of the banks duty to preserve and protect the collateral (see Uniform Commercial Code, § 9-207, subd [1]). On this appeal the plaintiff contends that the respondents, by the express terms of the guarantees, waived any right to assert a counterclaim or to require the bank to liquidate the collateral. A waiver of the right to assert a setoff or counterclaim is not against public policy and has been enforced by this court (see Bank of New York v Cariello, 69 A.D.2d 805). However, such a [74 A.D.2d 620 Page 621]