STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA


 

TILDEN FINANCIAL CORP.,


Plaintiff,


-vs- Index #H10436

Action #1

CURT B. WESTROM,


Defendant.


 

CURT B. WESTROM,


Plaintiff

-vs- Index #H08250

Action #2

ELECTRONIC TECHNOLOGY GROUP,INC.,


Defendant and Third-party Plaintiff

-vs-


FRANK COSTANZO, CHARLENE COSTANZO,

SUNDOWN TECHNOLOGY, INC., KRISTPH, INC.,

LIFE ENERGY RESOURCES, INC.,

INTERNATIONAL HEALTH FOUNDATION, INC.,

JAMES T. WALTON and

WALTON GROUP OF JAMESTOWN, INC.,


Third Party Defendants


 

CURT B. WESTROM,


Plaintiff & Fourth-party Plaintiff,


-vs-


EUGENE DeWITT and

TILDEN FINANCIAL CORP.,


Fourth-Party Defendants.

 


 


WRIGHT, WRIGHT & HAMPTON

(Edward P. Wright, Esq.

of Counsel) for Plaintiff

Curt B. Westrom in Action #2

and Defendant Westrom in

Action #1


MACKRELL, ROWLANDS, PREMO &

PIERRO (Patrick J. Mackrell,

Esq. of Counsel) for Defendant

Tilden in Action #2 and

Plaintiff in Action #1


BRANDT, LAUGHLIN, SCHAACK,

WHIPPLE AND CLARK, P.C.

(Richard F. Whipple, Jr., Esq.

of Counsel) for Defendant

DeWitt


SPOTO & SLATER

(Richard V. Slater, Esq. of

Counsel) for Defendants

Costanzo, Life Energy & Kristph


C. ROBERT VAHL, ESQ.

for Defendant Walton Group



DECISION and ORDER



GERACE, J.

TILDEN FINANCIAL CORP. ("Tilden"), plaintiff in action "1" and a 4th party defendant in action "2", moved in motions

numbered 1 and 6 for summary judgment in both actions. Defendant Westrom cross moved via motion numbered 2 for dismissal of the Tilden complaint because Action "2" was pending.


TILDEN sues on a guaranty given by WESTROM on a equipment

lease between Act II and Tilden. Westrom claims he was induced to sign the guaranty as a result of fraud and misrepresentations by his boss, DeWitt, and, in committing the fraud, DeWitt was acting as an agent of Tilden. The guaranty in question was a reaffirmation of Westrom's original guaranty of an obligation of Hardyl Manufacturing Corporation.


There is no allegation or proof that Tilden was part of any conspiracy with DeWitt. Westrom's allegations of fraud,

misrepresentations, and other recitals provide no facts from

which to draw the implication that Tilden was aware of and

involved in the alleged inducement; there is nothing alleged to connect Tilden other than a claim DeWitt was acting as "an agent of Tilden Financial Corporation". (Westrom Bill of Particulars, para 2.).


In that paragraph, Westrom asserts "Eugene DeWitt was acting in an individual capacity, as chairman and CEO of Electronic Technology Group, Inc., as chairman and CEO of Hardy Manufacturing Corporation, as agent of Act II Printed Circuits, Inc. (the subsidiary of Electronic Group, Inc.), and as an agent of Tilden Financial Corporation".


In his response to Tilden interrogatories and in his Bill of Particulars, Westrom admits he has no information on which to base his claim that DeWitt acted as an agent of Tilden and is unaware of any representations made by anyone in the Tilden to that effect.


Westrom's position is that his reaffirmation was obtained by fraud as seen by the overcharging by Tilden, the representations by DeWitt, and the fact that the reaffirmation refers to an equipment lease dated August 9, 1993, that there is no August 9 lease. (The only date on the new lease was August 10th, the date it was accepted by Tilden.)


But, even if Westrom's August 9, 1993 reaffirmation of

guaranty could be set aside, Westrom would remain liable on the original guaranty given by him in favor of Tilden on the

indebtness of Act II. He does not dispute the original guaranty; he does not claim it is invalid or procured by fraud. Either way, Westrom must pay the original guaranty or the reaffirmation.

Counsel for Tilden summarizes the Westrom position in a

June 5, 1995, letter to the Court in which he says:


"Mr. Westrom believes strongly that based upon

representations made to him [by Dewitt] and the

rapidity of the events Mr. DeWitt was acting as

an agent of Tilden Financial Corporation and

in the fraud and coercion exercised by Mr. Dewitt.

Mr. Westrom should be permitted to conduct

discovery before this matter is decided."


Westrom's counsel wants a face to face deposition of DeWitt, an Arizonian, who has challenged the jurisdiction of the Court on the grounds he is a non-resident and has had no transactions in New York on which to ground jurisdiction.


To permit Westrom some discovery to attempt to bolster his claims, the Court ordered that the parties initially resort to interrogatories, after which the Court would consider if, when and where depositions of Mr. DeWitt would take place. Westrom refused to pursue this route and instead has appealed the order.


The Court adjourned all motions pending discovery. Because both DeWitt and Westrom have failed to comply with the Court's bench decisions on discovery, the Court elects to decide the motions on the papers and argument to date to allow the Appellate Division the opportunity to pass on all issues to bring these cases to a conclusion.


The motion for summary judgment by Plaintiff Tilden in

action "1", Index No. 10436, except for counsel fees, is granted; Defendant Westrom's cross motion to dismiss the complaint because another action is pending is denied.


Tilden's motion as 4th party defendant for summary judgment against Westrom in Action "2", Index No. H08250, is also granted, except for counsel fees.


At the June 12th argument, Tilden's counsel handed the Court an affidavit for counsel fees. The Court directs that Tilden make a separate motion for those fees, on notice to Westrom.


THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER ORDER SHALL BE NECESSARY.


Dated: June 22, 1995

Mayville, New York


 

JOSEPH GERACE

Justice of Supreme Court