        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

939
CA 11-00653
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


JOHN DEFORGE, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

LYNDI KARWOSKI, DEFENDANT-RESPONDENT.


ADORANTE, TURNER & ASSOC., CAMILLUS (ANTHONY P. ADORANTE OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

LAWRENCE BROWN, BRIDGEPORT, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (James
P. Murphy, J.), entered January 26, 2011. The order denied the motion
of plaintiff for summary judgment and granted the cross motion of
defendant for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, defendant’s cross
motion is denied, the complaint is reinstated and plaintiff’s motion
is granted.

      Memorandum: In this action commenced by plaintiff to recover
damages arising from money that he paid in his capacity as a cosigner
in satisfaction of the student loan taken out by defendant, his
daughter, plaintiff contends that Supreme Court erred in granting
defendant’s cross motion for summary judgment dismissing the complaint
and instead should have granted his motion for summary judgment on the
complaint, awarding him damages in the sum of $4,132.08 plus interest
from the date on which he paid the loan along with the costs and
disbursements incurred in bringing this action. We agree. In
cosigning the loan agreement, plaintiff acted as a surety and thus, in
accordance with the general rule, is equitably entitled to full
indemnity against the consequences of the default of defendant, the
principal obligor (see Lori-Kay Golf, Inc. v Lassner, 61 NY2d 722,
723; Leghorn v Ross, 53 AD2d 560, affd 42 NY2d 1043, rearg denied 43
NY2d 835). Contrary to the court’s determination, a separate written
contract between the parties to this action was not required to enable
plaintiff to recover from defendant. Plaintiff surety’s right to
indemnification from his daughter, the principal herein, exists
independently of any right of the creditor that issued the student
loan pursuant to its written agreement with defendant, i.e., the
principal under the agreement (see Blanchard v Blanchard, 201 NY 134,
138).
                                 -2-                           939
                                                         CA 11-00653

     We further agree with plaintiff that he did not waive his right
to seek indemnification from defendant pursuant to the terms of the
loan agreement (see generally Morlee Sales Corp. v Manufacturers Trust
Co., 9 NY2d 16, 19; Guasteferro v Family Health Network of Cent. N.Y.,
203 AD2d 905). Finally, we reject defendant’s contention that this
action is barred by the doctrine of laches (see generally Marcus v
Village of Mamaroneck, 283 NY 325, 332; Matter of Kuhn v Town of
Johnstown, 248 AD2d 828, 830; Cohen v Krantz, 227 AD2d 581, 582).




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
