Ordered that the order is modified by deleting the provision thereof which granted the cross motion of the defendant Lillian Healy, as executrix of the estate of John Healy, for summary judgment, and substituting therefor a provision denying the cross motion; as so modified the order is affirmed, without costs or disbursements.
In this action to recover on promissory notes and personal guarantees, we agree with the plaintiff that its action against the estate of the deceased guarantor was not untimely pursuant to SCPA 1802 ( see, King v. Nicholson, 145 Misc.2d 977).
However, contrary to the plaintiff's contention, it was not entitled to summary judgment against the estate of the deceased guarantor since there are questions of fact as to the parties' intent with regards to an additional note executed following the death of the guarantor ( see, Reiss Son v. Silver Colt Realty Assocs., 184 A.D.2d 205; Flaum v. Birnbaum, 120 A.D.2d 183, 192; Wasserstrom v. Interstate Litho Corp., 114 A.D.2d 952).
The court also properly denied the branch of the plaintiff's motion which was for summary judgment against the defendant Lace Mill Associates, Inc., since there are questions of fact as to how the plaintiff applied certain sums it received from the other personal guarantors and whether those sums reduced the amount recoverable from the estate and Lace Mill Associates, Inc.
For these same reasons, the court erred in granting Lillian Healy's cross motion for summary judgment dismissing the complaint insofar as it is asserted against the estate. Sullivan, J.P., Santucci, Friedmann and Krausman, JJ., concur.