Chemical Bank v. Valentini

In an action on a promissory note, defendant Parvin Valentini appeals from (1) an order of the Supreme Court, Nassau County (Levitt, J.), dated September 10, 1980, which granted plaintiff’s motion for summary judgment, and (2) a judgment of the same court, entered October 29, 1980, awarding plaintiff the principal sum of $11,145.73. Appeal from the order dismissed. That order is brought up for review upon appeal from the final judgment (see Matter of Aho, 39 NY2d 241, 248). Judgment affirmed. Plaintiff is awarded one bill of $50 costs and disbursements. Defendant Parvin Valentini was an accommodation comaker on a promissory note between her husband and the Chemical Bank. Her defense to the instant action commenced against her by the bank, upon her husband’s default on the note, is that the bank unjustifiably impaired the collateral provided by her husband (see Uniform Commercial Code, § 3-606, subd [1], par [b]). She contends that the failure of the bank to object to the listing of its debt in her husband’s bankruptcy petition as unsecured, when in fact the debt was secured, should result in the discharge of her liability. However, a creditor need not take affirmative action to enforce the security, absent any implied duty to do so (see Executive Bank of Fort Lauderdale v Tighe, 66 AD2d 70, 75; 57 NY Jur, Suretyship and Guaranty, § 200; 10 Williston, Contracts [3d ed], § 1233; see, also, Leslie Fay, Inc. v Rich, 478 F Supp 1109). Hopkins, J. P., Rabin, Cohalan and O’Connor, JJ., concur.