PHOENIX ACQUISITION CORPORATION ET AL., PLAINTIFFS, v. CAMPCORE, INC., ET
AL., DEFENDANTS, CHESTER WICKWIRE, F/N/U DYGERT, RESPONDENT, MARINE MIDLAND
BANK, N.A., APPELLANT.
81 N.Y.2d 138, 612 N.E.2d 1219, 596 N.Y.S.2d 752 (1993).
March 30, 1993
4 No. 52 (1993 N.Y. Int. 55)
Decided March 30, 1993
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Thomas C. Buckel, Jr., for Appellant.
Theodore Fenstermacher, for Respondent.
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BELLACOSA, J.:
We granted leave in this case to decide whether defendant-debtor
Campcore, Inc.'s default on one installment payment under its
promissory note triggered the Statute of Limitations accrual against
the entire debt. Upon that initial default in the installment payment,
the creditor, Marine Midland Bank, chose not to exercise its option to
accelerate the balance of the indebtedness. At issue is Marine's
attempt to recover against a guarantor, Chester Wickwire ("Wickwire"),
on otherwise timely portions of Campcore's debt. Supreme Court and the
Appellate Division ruled that the Statute of Limitations blocked
Marine's reach against guarantor-Wickwire, because Wickwire became
obligated to pay the whole debt upon the initial default in a payment
by Campcore. On the grant of leave to appeal to Marine, we now reverse
the order of the Appellate Division.
I.
In July 1978, appellant-creditor Marine loaned Campcore $500,000,
secured by a promissory note providing, in part, that "(t)he holder
hereof shall have the option to declare the balance due and owing
hereunder at any time to be immediately due and payable * * * upon the
happening of * * * . Non-payment of any sum of principal or interest
on the date which the same shall become due * * * *" The term loan
agreement between the debtor and creditor contained a corresponding
acceleration option exercisable unilaterally by the creditor bank.
Marine later acquired a mortgage from Phoenix Acquisition Corp. and
Dome Corp. as security for the loan.
SNIPPETS:
We granted leave in this case to decide whether defendant-debtor Campcore, Inc.'s default on
Upon that initial default in the installment payment, the creditor, Marine Midland Bank,
At issue is Marine's attempt to recover against a guarantor, Chester Wickwire, on otherwise
Supreme Court and the Appellate Division ruled that the Statute of Limitations blocked
Non-payment of any sum of principal or interest on the date which the same shall become due *
This guaranty also contained a provision that Marine would notify Wickwire of default in
The contractual language fixes the boundaries of the legal obligation of the guarantor.
Wickwire acknowledges that the extent of the debtor's liability following a single, skipped
However, he would contrast the debtor's limited obligation on a default in a single payment
Wickwire finds support for this view in particular language of the guaranty, which stipulates
That case holds that where a guaranty is one of payment, liability under a guaranty attaches
The Statute of Limitations affecting a note payable upon demand, without doubt, begins to run
Inasmuch as we are reversing the order of the Appellate Division and denying Wickwire's
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