PHOENIX ACQUISITION CORP. v. CAMPCORE, INC

Judgment unanimously modified on the law and as modified affirmed with costs to defendant Wickwire in accordance with the following Memorandum: We agree with the court's determination to grant Wickwire summary judgment declaring that any attempt by Marine to enforce the guarantee would be time-barred. A cause of action against a surety to recover on a guarantee is governed by a six-year Statute of Limitations (CPLR 213; American Trading Co. v Fish, 42 N.Y.2d 20, 26-27) and accrues "as soon as" the debtor defaults in payment of the underlying obligation (General Phoenix Corp. v Cabot, 300 N.Y. 87, 93; see also, Gazza v United Cal. Bank Intl., 88 A.D.2d 968, 969; Chemical Bank N Y Trust Co. v Amory, 27 A.D.2d 730, affd 21 N.Y.2d 832). That rule accords with the parties' expectations in this case. The guarantee provides that Wickwire is obligated to pay the entire debt (up to $105,000) upon "any" default by the debtor. Because the debtor defaulted in paying the debt no later than April 1983, any claim to enforce the guarantee is time-barred.

Absent any countervailing equitable considerations, it was error for the court to deny costs to Wickwire, the prevailing party on the motion (see, CPLR 8101, 8301; Matter of Birnbaum v Birnbaum, 157 A.D.2d 177, 192; Gabrelian v Gabrelian, 108 A.D.2d 445, 446, appeal dismissed 66 N.Y.2d 741). The appeal from the stay order is rendered moot by our determination of the main appeal.