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JEFFREY J. WEINSTEN et al., Respondents, v. FLEET FACTORS CORP., Appellant.

Plaintiff guarantors' purported waiver of the defense of commercial reasonableness in their guaranties was ineffective (Marine Midland Bank v CMR Indus., 159 A.D.2d 94, 102-107 [2d Dept]; Marine Midland Bank v Kristin Intl., 141 A.D.2d 259 [4th Dept]; see also, Bank of China v Chan, 937 F.2d 780, 785-786 [2d Cir]; contra, First City Div. of Chase Lincoln First Bank v Vitale, 123 A.D.2d 207 [3d Dept]). Summary judgment on defendant's counterclaims was properly denied, there being issues of fact whether defendant acted in a commercially reasonable manner in disposing of certain assets of the debtor (see, Bankers Trust Co. v Dowler Co., 47 N.Y.2d 128, 134-135; Marine Midland Bank v CMR Indus., supra, at 107), raised, inter alia, by proof tending to show a significant discrepancy between the price obtained by defendant for those assets and their actual value.

We have considered defendant's other contentions and find them to be unpersuasive.

Concur — Ellerin, J.P., Kupferman, Williams and Tom, JJ.

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WEINSTEN v. FLEET FACTORS CORP
(Dec 8, 1994)